Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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AMERICAN COUNCIL OF THE BLIND

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1155 15th Street, N.W. , Suite 720

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Washington, D.C. 20005

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PATRICK SHEEHAN

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14311 Astrodome Dr.

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Silver Spring, MD. 20906

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OTIS STEPHENS

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1141 Southgate Rd.

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Knoxville, TN 37919

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Plaintiffs,

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v.

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JOHN W. SNOW

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Secretary of the Treasury

) Civil Action No.1:02CV00864 JR

1500 Pennsylvania Avenue, NW

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Washington, D.C. 20220

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Defendant

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__________________________________________)

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
I. INTRODUCTION & SUMMARY This litigation seeks to remedy a long-standing form of discrimination against persons with visual disabilities. United States banknotes are the medium of exchange in almost every facet of daily life. The ability to use these banknotes in a fast and easy manner is an essential ingredient of independent living. Most Americans are fortunate enough to take for granted the ability to recognize banknote denominations. However,

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for millions of Americans with blindness or low vision, it is impossible to recognize the denomination of banknotes. This is due to the fact that U.S. banknotes are identical in size and texture, and virtually identical in color. As a result, individuals with visual disabilities suffer needless impediments in purchasing groceries, transportation, and a multitude of other goods and services. Further, the current banknote design puts individuals with visual disabilities at a heightened risk of fraud and deceit in connection with transactions requiring the use of banknotes. 1. This action seeks declaratory and injunctive relief to enjoin the Secretary’s ongoing violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Pursuant to Section 504, individuals with disabilities may not be excluded from or denied the benefits of participation in any program or activity conducted by United States government. The issuance of banknotes is clearly an activity conducted by the United States government on behalf of all of its citizens. However, persons with visual disabilities are excluded from meaningful access to U.S. currency due solely to their physical limitations. This action seeks relief from the discriminatory exclusion of millions of Americans from this critical function of everyday life. 2. Defendant’s future plans to make banknotes accessible to persons with visual disabilities are limited to the commissioning of another study. The record is abundantly clear that Defendant will take no action to alleviate the needless impediments incurred by the disabled in handling currency unless ordered by this Court.
II. JURISDICTION AND VENUE 3. Jurisdiction is properly vested in this Court pursuant to 28 U.S.C. § 1331 over causes of action arising under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
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4. Alternatively, and only if this Court finds that sovereign immunity bars the jurisdiction of this Court under 29 U.S.C § 794, then Plaintiffs assert that the design and production of currency constitutes a final agency action over which this Court has jurisdiction under the provisions of the Administrative Procedures Act, 5 U.S.C. § 702, and the general federal jurisdiction provisions at 28 U.S.C. § 1331. 5. Venue lies in this district under 28 U.S.C. 1391(e).
III. PLAINTIFFS 6. The American Council of the Blind is the nation's leading membership organization of blind and visually impaired people. It was founded in 1961 and incorporated in the District of Columbia. The Council's membership numbers in the tens of thousands. ACB has 51 state and regional affiliates and 20 national special interest and professional affiliates. The Council strives to improve the well-being of all blind and visually impaired people by: serving as a representative national organization of blind people; elevating the social, economic and cultural levels of blind people; improving educational and rehabilitation facilities and opportunities; cooperating with the public and private institutions and organizations concerned with blind services; encouraging and assisting all blind persons to develop their abilities and conducting a public education program to promote greater understanding of blindness and the capabilities of blind people. ACB monthly publishes The Braille Forum, a national magazine with a readership of approximately 26,000. The Council also produces a monthly half-hour radio information program, ACB Reports, for radio reading information services. It also distributes TV and radio public service announcements highlighting the capabilities of blind people. The ACB has many members who would benefit from making United
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States banknotes accessible to persons with visual disabilities. The American Council of the Blind has adopted numerous resolutions over the last 25 years with the purpose of encouraging the Defendant to redesign currency so as to make denomination possible for persons with visual disabilities. 7. Otis Stephens is a blind person residing at 1141 Southgate Rd., Knoxville, TN 37919. Dr. Stephens is a Professor of Law at the University of Tennessee School of Law at Knoxville, Tennessee. Dr. Stephens generally relies upon a trusted sighted individual to inform him as to the denomination of a particular banknote. Dr. Stephens then typically distinguishes between banknotes of varying denominations by folding the banknote into a shape peculiar to that denomination. For example, $5 banknotes are folded lengthwise; $10 banknotes are folded in halves, etc. When receiving change after purchasing an item, Dr. Stephens generally relies upon the store cashier to identify the denomination of each banknote handed to him. Dr. Stephens then folds the money received as change according to the system described above. 8. Patrick Sheehan is an individual with low vision residing at 14311 Astrodome Dr., Silver Spring, MD. 20906. Mr. Sheehan is a computer specialist employed by the United States Department of Veterans Affairs in Washington, D.C. Mr. Sheehan has no vision in his right eye, and left eye vision is at 20/350. Only in the most optimal lighting conditions is Mr. Sheehan able to distinguish between banknotes of varying denominations. Typically, Mr. Sheehan uses a closed circuit television to magnify the banknote so that he can distinguish between banknotes of different denominations. Mr. Sheehan then folds the banknote into a unique shape peculiar to that denomination. Banknotes received from a cashier after purchasing an item often remain unsorted until
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Mr. Sheehan is in a position to examine the banknote through one of the means described above. Mr. Sheehan is legally blind under the criteria specified in 20 C.F.R. § 404.1581. 9. Dr. Stephens and Mr. Sheehan are otherwise qualified individuals with a disability, under the terms of the Rehabilitation Act and its implementing regulations. See 29 U.S.C. § 705(20); 31 C.F.R. § 17.103(g).
IV. DEFENDANTS
10. John Snow is the Secretary of the Treasury (“Secretary”). The United States Department of Treasury is an executive agency of the United States government. The Department of the Treasury is organized into two major components: Departmental offices and the operating bureaus. The Bureau of Engraving and Printing (“BEP”) is one of the operating bureaus of the Department of the Treasury. Among the BEP’s functions include designing and manufacturing United States currency; designing and manufacturing many postage stamps, customs stamps and revenue stamps; designing, engraving and printing Treasury bills, notes and bonds, and other U.S. securities; and designing, engraving, and printing commissions, permits, and certificates of awards.
V. STATUTORY FRAMEWORK 11. Section 504 of the Rehabilitation Act of 1973 ("Section 504") prohibits discrimination against persons with disabilities in connection with any program or activity conducted by any executive agency of the United States government. Specifically, this section provides in pertinent part as follows:
No otherwise qualified individual with a disability in the United States, as defined in section 706 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to
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discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. See 29 U.S.C. § 794. 12. The design and production of currency is a program or activity within the meaning of Section 504. 13. The term "individual with a disability" means any person who— (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. See 29 U.S.C. § 705 (2001) 14. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, requires reasonable accommodations for individuals with disabilities, with respect to the programs and services of the federal government. 15. The burden is upon the agency to prove that compliance with the requirements of Section 504 would result in an undue burden upon the agency. See 31 C.F.R. § 17.150(a)(2). VII. RECOMMENDATIONS MADE BY THE 1983 AND 1995 CURRENCY
STUDIES
16. In 1983, the BEP conducted a study entitled "A Study of Mechanisms for the Denomination of Currency by the Blind or Visually Impaired", dated August 24, 1983, (hereinafter referred to as the “1983 Study”, and attached hereto as Exhibit P-1). 17. The 1983 Study recommended that BEP seek funding for the development of a sophisticated portable electronic device which could be used by the visually disabled to denominate banknotes. See Exhibit P-1, 1983 Study at pp. 5-6.
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18. At the request of Defendant, a separate study was conducted in 1995 by the National Academy of Sciences in connection with the use of currency by the visually impaired (hereinafter referred to as the “NAS Panel” or “NAS Study”). 19. Panel participants included leading experts in the fields of advanced reprographic technology, materials science, substrate materials, banknote production and currency design, psychophysics, optical engineering, chemical engineering, optics and physics, as well as leading experts in low vision and blindness research. See Exhibit P-2, Preface to NAS Study. 20.. The NAS Panel recommended that Defendant include the following features in near term (1-3 years) currency redesigns: (a) variation in both height and length of banknotes; (b) use of large, high contrast denomination numerals on a uniform background; (c) use of different predominant colors for each denomination; and (d) use of denominational UPC coding which could be used by external devices in denominating currency. 21. Additionally, the NAS Panel recommended that the specifications for these new features should strive for sufficient differentiation between denominations to permit rapid, effortless performance. See Exhibit P-2, NAS Study, at pp. 4-5, 75-76. The NAS Panel found that each of the above features could be incorporated based on technologies which are already known and widely used. Id. at pp. 68-70. 22. The NAS Panel noted that banknote size varies with denomination in over 120 countries, and that the technology for accomplishing this change is currently in existence. Id., at p. 40. The Panel also found that this feature is generally considered very useful by the visually impaired. Id. at pp. 40-44. The Panel cited to studies which indicate that
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variation of at least 5-7mm in both length and height of the banknote results in users achieving a 90% success rate with only 30 minutes of learning. Id. at p. 42. 23. The NAS Panel found that use of a large high contrast numeral would require little or no additional capital investment. Exhibit P-2, NAS Study, at p. 69. The Panel recommended near term (1-3 years) implementation of this feature. Id at pp. 4, 68-70. The Panel stated that people with acuity as low as 20/240 could be assisted if the numeral were 60 percent of the current note height. Id. at p. 46. People with acuity at the range of 20/160 would be assisted if the numeral were at least 40 percent of banknote height. Id. 24. The NAS Panel found that use of different predominant colors for each denomination would be inexpensive to implement with little or no additional capital investment. See Exhibit P-2, NAS Study, at p. 70. The Panel determined that enough research currently exists to allow experts to identify the primary colors which would be most useful to the visually impaired in facilitating denomination. Id. at p. 47. The Panel recommended near term (1-3) years implementation of this feature. Id. at pp. 68-70. 25. The NAS Panel also recommended that Defendant pursue a broad research agenda, with a view towards identifying potential combinations of features which could be employed to enhance denomination. Specifically, the NAS Panel recommended that “high priority” research be conducted to determine “optimum dimensions, optical contrast, location, colors, physical size” for making recognition and denomination of U.S. banknotes easy and convenient for visually disabled individuals. See Exhibit P-2, NAS Study, at pp. 65, 76.
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26. The NAS Panel recommended “near or mid-term research” to determine the gradations which will permit reliable human discrimination of low-relief tactile features. Id., at p. 65. See also pp. 5, 76. The NAS Panel urged the Defendant to conduct research into the development of durable tactile features. See Exhibit P-2, NAS Study, at pp. 5, 59, 62, 63, 86. The NAS Panel also recommended that Defendant work with device developers to develop improved external devices which could be useful to the visually impaired. Id at pp. 76. The Panel recommended that Defendant involve appropriate user groups as early as possible to ensure selection of those features which would be most useful to the disabled population. Id at pp. 6, 77. VII. DEFENDANT’S FAILURE TO IMPLEMENT THE RECOMMENDATIONS
CONTAINED IN THE 1983 AND 1995 STUDIES 27. The conclusions of the 1983 and 1995 studies were well known to Defendant when it conducted its 1996 and 2004 currency redesigns. Nonetheless, Defendant has failed to implement any of the recommendations contained in these studies. A. The Current Use of Color Is Inconsistent With the Recommendations of the NAS Panel 28. The manner in which Defendant has added color to banknotes is completely inconsistent with the recommendations of the NAS Panel. The NAS Panel recommended the use of a different predominant color for each banknote. See Exhibit P-2, NAS Study at p. 47. The NAS Panel stated that a mix of colors is not desirable from a denomination standpoint. Id. The Committee also warned that blues and greens should not be used together, as it is particularly difficult to discriminate between these colors. Id. 29. The color scheme adopted by the Defendant relies upon a mix of subtle colors, instead of a single predominant color for each denomination. Background colors of blue
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and red have been added to the $50 note. See Exhibit P-3, Reproduction of $50 and $20 notes. The $20 note features background colors of blue, peach, and green. Id. However, the main colors of $50 and $20 denominations remain green and black; the other colors are present only in subtle shades in secondary design elements. The BEP website properly describes the background colors on the $20 and $50 notes as “subtle.” See Exhibits P-4 and P-5, BEP Description of Color on $20 and $50 Notes. The present use of color does not provide adequate contrast between denominations. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 10. B. Design of the Large Denomination Numeral Is Inconsistent With the Recommendations of the NAS Panel 30. Defendant’s introduction of the larger denomination numeral on the reverse of the $5 and higher banknotes is inconsistent with the recommendations of the NAS Panel. The NAS Panel recommended that the large denomination numeral be at least 40% - 60% of the current banknote height of 66.3 mm, preferably on each side of the banknote. See Exhibit P-2, NAS Study, at p. 46. See also Exhibit P-6, Def. Response to Interrogatory No. 15. Therefore, at a minimum, the large denomination numeral should be 26.52 mm. The NAS Panel also recommended that the large denomination numeral be printed in black ink against a white background, or in white against a black background. See Exhibit P-2, NAS Study at p. 46. 31. The larger denomination numeral on the $5, $10, $20, and $50 banknotes is 13 mm, or slightly less than 20% of the current banknote height. See Exhibit P-7, Def. Response to Interrogatory No. 12. This is less than half of the size recommended by the NAS Panel. The larger denomination numeral is placed on only one side of the banknote, contrary to the recommendations of the NAS Panel. See Exhibit P-2, NAS Study at p.
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46. The larger denomination numeral has not been included on the $1, $2, and $100 banknotes. 32. The larger denomination numeral introduced by Defendant is printed in green, as opposed to black ink, thereby reducing contrast levels. 33. Defendant’s sole reason for using green ink is that it is the color traditionally associated with U.S. banknotes. See Exhibit P-10, BEP Explanation for Use of Green Ink. C. Defendant Has Not Undertaken Reasonable Efforts to Develop a Portable Electronic Device Capable Of Rapid and Accurate Denomination 34. The BEP’s 1983 Study evaluated various features which could be used by the visually disabled to denominate currency. The 1983 Study concluded that the most practical solution was to pursue the development of a portable electronic device capable of denominating banknotes. See Exhibit P-1, 1983 Study, at p. 6. 35. The NAS Panel noted that portable electronic devices capable of denominating currency tend to be unreliable, slow, and expensive. See Exhibit P-2, NAS Study at p. 25. 36. Ms. Julia Wilson, a Supervisory Paralegal at the U.S. Department of Justice tested the Brytech Note Teller 2 electronic currency reader. See Exhibit P-11, Declaration of Ms. Julia Wilson. The test results at Table A relates to the newer series of bills (Series 2002 through 2004), and the test results at Table B relate to older series (Series 1981 through 2001). The test results at Table A reveal a 25% error rate, while the test results at Table B reveal a 6% error rate. Id. at ¶5. Ms. Wilson’s Declaration further notes that the retail price of this item is $270 per unit. See Exhibit P-11, Declaration of Julia Wilson, at ¶ 8.
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37. In August 2004, the BEP issued Request for Quotations (“RFQ”) 04-0687 seeking the development of a pocket sized device with a target retail price of $35 or less, which could be used to determine the denomination of US currency. See Exhibit P-13, RFQ Specifications. This action on the part of the Treasury was taken more than 20 years after the initial recommendation of the 1983 BEP Study. 38. Under the terms of the RFQ, the selected vendor would be provided with up to $50,000 to develop a prototype of a device which would have an inconclusive read rate of no greater than ten per thousand notes read, and an incorrect read rate of no greater than one per fifty thousand notes read. The successful vendor would have three years after delivery of a working prototype to bring the device to the retail market. If the vendor failed to bring the device to the retail market within the three year time frame, the design would be made public, and other companies would be invited to bring the device to the retail market. Id., at pp. 1, 3. An award incorporating the terms of the RFQ was made to Mnemonics Technologies, Inc., on September 30, 2004. See Exhibit P-7, Def. Response to Interrogatory No. 13. 39. The specifications do not specify the response times which the prototype must be capable of achieving. See Exhibit P-13, RFQ Specifications. The specifications require that the prototype be capable of reading banknotes in only two out of four orientations. Id. 40. If a successful prototype is developed, the vendor has three years to bring the design to the retail market. Id. If the vendor fails to achieve this goal, then the design reverts to the public domain, in which case the design may still not be brought to the retail market. Id.
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41. The RFQ states that the design “should facilitate the ability to mass-produce the units with a retail target price of less than thirty-five U.S. dollars.” Id. 42. The retail price of such a unit depends largely on the size of the market and the number of people willing to purchase the item. 43. Defendant states that “the agreement does not establish a ceiling on the sale price of the device to the public” and further that the government “…does not exercise control over the ultimate sale price.” See Exhibit P-14, Def. Admissions No’s 3 & 4. 44. The Treasury will not assume any role in marketing the unit, or in developing sales channels for the unit. See Exhibit P-13, RFQ Specifications. at pp. 2-3 (Questions and Answers No’s. 3, 10, 11). 45. Defendant will not provide any subsidy to qualified individuals in purchasing the unit. See Exhibit P-13, RFQ Specifications, at pp. 3-4 (Questions & Answers No’s 7, 12). Defendant is unwilling to underwrite any portion of the cost of the unit for individuals who may be unable to afford it. Id. D. Defendant Has Not Undertaken Any of the Research and Testing Recommended By the NAS Panel 46. Defendant claims to have conducted research and testing with respect to the following features: (a) inclusion of a large denomination numeral on the reverse side of the banknote; (b) inclusion of an embossed feature currently used on Canadian banknotes; (c) inclusion of a micro-perforation design currently used in Swiss currency, and (d) determination as to optimal color patterns for the visually disabled. See Exhibit P-6, Def. Response to Interrogatories No’s. 14-16. 47. Defendant states that it obtained an assessment by the University of Minnesota Laboratory for Low-Vision Research in connection with its design of the larger
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denomination numeral placed on the reverse side of the $5 and higher banknotes. See Exhibit P-6, Def Response to Interrogatory No. 15. However, Defendant is unable to locate a copy of this assessment. See Exhibit P-14, Def. Response to Document Production Request No. 19. Defendant is not certain whether the results of this assessment were conveyed orally or in writing. See Exhibit P-15, Letter from Defendant’s Counsel dated August 1, 2005. 48. Defendant states that it tested an embossed feature which is currently used on Canadian banknotes. See Exhibit P-6, Def. Response to Interrogatory No. 14. Canadian currency incorporates a series of embossed dots which are used by the visually disabled to distinguish between denominations. This embossed feature was applied to ten (10) U.S. banknotes. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 8. Defendant stated that the Canadian feature “was found to have insufficient durability to approximate the average length of time required for Federal Reserve notes to remain in circulation.” See Exhibit P-6, Def. Response to Interrogatory No. 14. 49. Defendant was asked to produce the results of any testing which it conducted to determine the durability of the Canadian feature. See Exhibit P-14, Def. Response to Document Production Request No. 17. In response, Defendant furnished the document entitled “Tactile Feature for the Blind.” Id. However, this document reflects only durability testing of the Canadian feature on Canadian banknotes. See Exhibit P-16, Tactile Feature for the Blind, at pp. 6-7. Defendant has not produced any test results reflecting upon the durability of the Canadian feature on U.S. banknotes.
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50. The Canadian Bank Note Company developed and patented the Canadian tactile feature, and is one of two companies under contract to print paper currency for the Bank of Canada. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 3, 4. 51. At the request of Defendant, the Canadian Bank Note Company conducted preliminary wear testing on ten (10) U.S. banknotes using the Canadian formula. After wear testing, the relief provided by the Canadian feature on U.S. banknotes was reduced on average from 110 microns to 20 to 35 microns. Id. at ¶ 8. Based on research conducted by the Canadian Bank Note Company, the 20 to 30 micron range on worn banknotes was found to be “satisfactory” with a 55 micron height or greater being “very good” as rated by the visually impaired. Id. 52. The Canadian Bank Note Company states that it is probable that the embossed feature could be applied to U.S. banknotes in a manner which would be useful to the blind. Id. at ¶ 9. 53. Defendant’s claim to have conducted durability testing on the Canadian feature contradicts Defendant’s sworn statement in which it admits that it is unable to determine the extent to which an embossed feature would reduce the useful life of U.S. banknotes, or even whether such reduction would be significant. See Exhibit P-7, Def. Answer to Interrogatory No. 5. 54. Defendant could not have reached any meaningful conclusions as to the durability of the Canadian feature on the basis of a test sample of ten (10) U.S. banknotes. Sample sizes of 1000 banknotes notes are normally required to produce statistically valid conclusions. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 10.
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55. Defendant also states that it tested a micro-perforation design developed for use as a security feature in Swiss currency to determine whether it could be useful to the visually disabled. See Exhibit P-33, Copy of Swiss Bank Note. Defendant stated that the presence of the perforation design was detectable by visually impaired persons. However, “the specific patterns could not be identified sufficiently for accurate denomination of currency. An analysis to determine the effectiveness and durability of the feature indicated that the perforation pattern could be altered or simulated easily and that the holes left by perforating accumulated dirt and debris.” See Exhibit P-6, Def. Response to Interrogatory No. 14. 56. Defendant was asked to produce the results of any testing which it conducted to determine the effectiveness and the durability of the micro-perforation feature. See Exhibit P-14, Def. Response to Document Production Request No. 18. In response, Defendant furnished a single page memorandum from Robert Stone to Thomas A. Ferguson, dated September 4, 2002. Id. However, this memorandum merely requests approval to provide twenty blank pieces of U.S. banknote paper to Switzerland for testing. See Exhibit P-17, Memorandum from Robert Stone to Thomas A. Ferguson, dated September 4, 2002. Defendant has not produced any test results reflecting upon the durability or the effectiveness of the Swiss micro-perforation feature on U.S. banknotes. 57. Defendant admitted that the presence of the micro-perforation design was detectable by persons with visual disabilities. See Exhibit P-6, Def. Response to Interrogatory No. 14. See also Exhibit P-18, Report Prepared by Deloitte & Touche/Shugoll, at p. 22. The micro-perforation method could provide a meaningful
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denomination cue merely by virtue of its location on the banknote, even if the specific micro-perforation pattern is not itself sufficient to provide denomination information. 58. Defendant was also asked to describe any testing which it conducted to determine the optimal color schemes which would be useful to the visually disabled. Defendant stated that it contracted with Deloitte & Touche/Shugoll to conduct a research study as to how color may be useful to the visually disabled in denominating currency. See Exhibit P-6, Def. Response to Interrogatory No. 16. 59. The purpose of the Deloitte study was to determine public awareness of design and counterfeit features in the new currency, and to determine the receptivity of the target audiences to various anti-counterfeiting features. See Exhibit P-18, Report Prepared by Deloitte & Touche/Shugoll, June 2002, Executive Summary at p.2. The target audiences were derived from individuals in the following groups: consumers, bank tellers, cashiers, gaming industry employees, law enforcement officials, and teachers. Id. The study protocols expressly excluded from participation individuals with visual impairments. Id. at Appendix A, pp. 4R, 6C.
VIII. THE DESIGN OF CURRENCY IMPOSES A SIGNIFICANT BURDEN UPON THE VISUALLY DISABLED
60. Plaintiff Otis Stephens, who is blind and has no pattern vision whatsoever, must rely upon a sighted individual to inform him as to the denomination of a particular banknote. See Complaint, ¶12. See Exhibit P-30, Declaration of Otis Stephens, at ¶¶ 3, 5, 7, 11. Mr. Stephens then uses a system of folding bills in different ways to distinguish between denominations. Id., at ¶ 6. 61. Plaintiff Patrick Sheehan is able to distinguish between banknotes of varying denominations only in the very best of lighting conditions. See Complaint, ¶13. See
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Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 4. Mr. Sheehan also uses a system of folding bills in different ways to distinguish between denominations. Id., at ¶ 5. 62. The system of folding bills provides no assistance in ascertaining whether a vendor provides the correct denominations in return.
63. Dr. Stephens is aware of being successfully defrauded on at least one occasion. See Exhibit P-30, Declaration of Otis Stephens, ¶10, Docket #35, Attachment #37. Mr. Sheehan is aware of being successfully defrauded on at least six or seven occasions. See Exhibit P-8, Declaration of Patrick Sheehan, ¶6, Docket #35, Attachment 11. 64. A visually disabled person who has been successfully defrauded may never know what occurred. Dr. Stephens states that he can “never be certain whether I provided or received the correct denominations.” See Exhibit P-30, Declaration of Otis Stephens, ¶13, Docket #35, Attachment #37. Mr. Sheehan is also not certain as to how many times he has been successfully defrauded, although he knows that it occurred on at least six or seven occasions. See Exhibit P-8, Declaration of Patrick Sheehan, ¶6, Docket #35, Attachment 11; See Sheehan at 140, Docket #33, Attachment #3. 65. Plaintiffs Sheehan and Stephens have handed out larger denominations than they intended. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 7. See Exhibit P-30, Declaration of Otis Stephens, at ¶ 7. Mr. Sheehan estimated that in conducting approximately 65 currency transactions within a two month sample period from April 14, 2004, - June 14, 2004, there were approximately 5-10 instances during which a vendor alerted him to the fact that he was paying with the wrong denominations. See Sheehan Answer to Interrogatory #8, Docket #33, Attachment #3 (page 50 of 52). Therefore,
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errors occurred in approximately 7% - 15% of all currency transactions conducted by Mr. Sheehan. 66. Whether due to fraud or inadvertence, errors in currency transactions often go unreported. On approximately 15-20 occasions since 1981, Mr. Sheehan handed over the wrong denomination without being informed of the error. See Sheehan at 97, Docket #33, Attachment #3. 67. Both Dr. Stephens and Mr. Sheehan experience fear and anxiety when conducting routine currency transactions, due to their inability to independently denominate banknotes. See Exhibit P-30, Declaration of Otis Stephens, ¶13, Docket #35, Attachment #37. See also Exhibit P-8, Declaration of Patrick Sheehan, ¶8, Docket #35, Attachment 11. 68. The visually disabled are frequently recognizable as having substantial life impairments, as are Mr. Sheehan and Dr. Stephens. See Exhibit P-30, Declaration of Otis Stephens, ¶ 8. Mr. Sheehan and Dr. Stephens are easy prey for unscrupulous individuals when conducting currency transactions, as they have no independent means to discern whether the change they are being handed back is correct. The visually disabled individual is at a distinct disadvantage even if a good faith dispute occurs as to what denomination was actually handed to a vendor. See Exhibit P-12, Declaration of OurMoneyToo.org, at p. 1. 69. Full participation in society depends upon the ability to engage in routine currency transactions in an independent and confidential manner. Currency transactions are integral to the routine process of buying and selling merchandise, using vending machines, and participating in daily life activities.
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70. Errors in currency transactions, whether due to fraud or mistake, may have a significant financial impact. The majority of the visually disabled are elderly individuals. The elderly as a group comprise a disproportionately high percentage of people living at poverty levels. A $20 dollar currency error involving an elderly individual could produce a significant financial hardship. 71. There are a vast number of employment positions which demand the ability to engage in spontaneous currency transactions. These positions often exist in the retail sector, such as cashiers at drug and grocery stores. The visually disabled are precluded from obtaining employment opportunities in these areas due to the design of U.S. currency. See Exhibit P-12, Declaration of OurMoneyToo.org., at p. 3.
IX. CURRENCY FEATURES IN USE WORLDWIDE DEMONSTRATE THE FEASIBILITY OF ACCOMMODATING THE VISUALLY DISABLED
72. The NAS Panel found that different sized currency is an established practice in over 120 countries. See Exhibit P-2, NAS Study at p. 40. The Panel found that 24 countries have adopted a specific scheme involving the use of large denomination numerals. Id. at p. 102. The Committee found that 167 out of 171 issuing authorities use a clearly differentiated color scheme for all denominations. Id., at p. 102. At the time of the 1995 NAS Study, there were 16 countries that used intaglio printing to produce tactile marks on each denomination. Id., NAS Study at p. 103. Another 7 currencies place tactile features on certain denominations. Id. 73. The Euro was introduced on January 1, 2002. During the development of the Euro, designers and printing experts consulted the European Blind Union. 74. On the front of each Euro note is a large denomination numeral over 2 centimeters tall, which is set against a pale background. This large denomination numeral is
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 21 of 36
manufactured with intaglio printing, and is designed to be perceptible to touch. See Exhibit P-19, Euro Vision, Understanding Euro Notes and Coins, A Guide for People with Poor Vision, jointly published by the European Blind Union, European Commission, and the European Central Bank, at p. 4. Specific patterns using intaglio print which are perceptible to touch are also printed along the edges of the EUR 200 and EUR 500 banknotes to help with recognition. These edge patterns are printed using the intaglio method. Id. at p. 5. Additionally, the notes have a foil feature which is also perceptible to touch. The foil feature on the 5, 10, and 20 Euro notes differs in shape and position from the foil feature on the 50, 100, 200, and 500 notes. Id at p. 6. 75. The length of the Euro increases by 6-7 mm with each denomination. The smallest note, which is the 5 Euro, is 12 cm long, while the largest note is 16 cm long. The 5, 10, 20, 50, and 100 notes also increase in height. The 5 Euro note is 6.2 cm in height, while the 100 Euro note is 8.2 cm in height. Id at p. 5. 76. Each Euro denomination has a striking dominant color, used on the front and the reverse sides. The dominant colors for each Euro denomination are: 5 Euro – Grey; 10 Euro – Red; 20 Euro – Blue; 50 Euro – Orange; 100 Euro – Olive Green; 200 Euro – Yellow-Brown; 500 Euro – Purple. Id. at p. 6. 77. The Canadian currency was redesigned in 2001 after extensive consultation with blind and visually impaired Canadians. The newly redesigned currency incorporates a series of symbols formed by groupings of six raised dots separated by a smooth surface. Each symbol is composed of two columns of three raised dots. These dots are embossed and back-coated to enhance their durability. See Exhibit P-20, Bank of Canada, Description of Accessibility Features.
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 22 of 36
78. The number and position of these symbols vary according to the denomination. The $5 note has one symbol, the $10 note has two symbols separated by a smooth surface, the $20 note has three symbols separated by two smooth surfaces, and the $50 note has four symbols separated by three smooth surfaces. Like the $10 note, the $100 bank note has two symbols, but the smooth surface between them is wider. Id. 79. The Canadian feature was subject to extensive durability testing prior to its incorporation. See Exhibit P-16, Tactile Feature for the Blind, at pp. 6-7. The results demonstrate that the embossed feature would not reduce the durability of Canadian banknotes. Id. The embossed symbols provide a relief of 140 microns, which relaxes back to 125 microns after issuance. Id., at p. 5. After a few minutes of training, users are able to denominate using the embossed symbol within an average of 13 seconds. Id. The redesigned notes did not present any stacking concerns to the Bank of Canada. Id. at p. 7.
X. THE COSTS OF PROVIDING ACCOMMODATIONS TO THE VISUALLY DISABLED ARE NOT UNDULY BURDENSOME
A. The 1983 BEP and 1995 NAS Panel Analysis of Cost Impacts 80. The issue of cost of making accommodations for the disabled was addressed by the BEP in its 1983 study. See Exhibit P-1, 1983 Study. The issue of cost was also addressed by the NAS Panel. The NAS Panel concluded that at least three of the features which could be useful to the visually disabled, i.e., color, large denomination numeral, and holes, could be achieved with little additional capital expenditures. Exhibit P-2, NAS Study, at pp. 69-70. The NAS Panel also found that use of different predominant colors for each denomination, and inclusion of a large denomination numeral, could be implemented within a 1-3 year period. Id., at pp. 68-70. B. Defendant’s Current Analysis of Cost Impacts
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 23 of 36
81. Cost impacts were addressed by Defendant in responding to Plaintiff’s Interrogatories during the course of this litigation. Defendant was asked to estimate the total costs involved in adding specific accessibility features to U.S. currency, including research, design, and manufacturing expenses. The following estimates provided by Defendant reflect the cost of modifying all denominations, including the $1 note. Defendant states that adding a large denomination numeral, which is at least 60% of current banknote height, would require a one time outlay of $4,500,000, plus additional annual costs in the amount of $400,000. See Exhibit P-7, Def. Response to Interrogatory No. 8. The use of large geometric shapes on banknotes would require a one time outlay of $4,500,000, with no additional annual costs. See Exhibit P-7, Def. Responses to Interrogatory No. 10. The use of different predominant colors on each banknote would require a one time outlay of $48,000,000, with additional annual cost in the amount of $20,000,000. See Exhibit P-7, Def. Response to Interrogatory No. 9. None of these features would have any impact on banknote durability. See Exhibit P-6, Def. Admissions No’s 1 and 2. 82. Defendant estimates that the cost impact of varying the length and height of currency would be $245 - $320 million in initial costs. See Exhibit P-21, Declaration of Thomas Ferguson, Director of the Bureau of Engraving and Printing, dated August 28, 2002 (hereinafter the “Ferguson Declaration”), ¶ 52. However, $70-$90 million of the initial start up costs is related to public education expenses, as opposed to any cost involved in the production of currency. Id. 83. The Ferguson Declaration further refers to increased annual expenses in the amount of $143 - $174 million related to varying the height and length of banknotes. Id.
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 24 of 36
However, $92 - $109 million of the estimated increased annual costs are related to replacing prematurely worn currency. Id. The additional cost of replacing prematurely worn currency would only be incurred if an embossed numeral or tactile feature is included, in addition to the dimensional changes. See Ferguson Declaration, ¶¶ 49-51. Therefore, the additional annual costs of varying the height and length of banknotes, without also including an embossed numeral or other tactile feature, would be $51 - $65 million. 84. Defendant states that the cost to emboss a numeral on banknotes would require a one-time outlay of approximately $45.5 million, plus additional annual costs of $16,000,000. See Exhibit P-7, Def. Response to Interrogatory No. 5. Defendant states that the total costs to include a micro-perforation feature perceptible to touch would require a one time outlay of $75 million, plus additional annual costs of $9 million. See Exhibit P-7, Def. Response to Interrogatory No. 6. Defendant states that the cost of adding a foil feature to banknotes which is perceptible to touch would result in a one-time outlay of $51.5 million, plus additional annual costs of $15.3 million, excluding the cost of the foil, which the Defendant declines to estimate. See Exhibit P-6, Def. Response to Interrogatory No. 22. 85. U.S. currency is currently producing using the intaglio method. See Exhibit P-22, BEP Description of Intaglio Process. Defendant declines to estimate the costs of using intaglio printing to create a tactile feature on banknotes because it considers it unlikely that such a feature could be produced. See Exhibit P-6, Def. Response to Interrogatory No. 21. Defendant’s failure to estimate the cost of using intaglio printing to create a tactile feature is unjustifiable. The Euro uses the intaglio method to create a large
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 25 of 36
denomination numeral which is perceptible to the touch. See Exhibit P-19, Euro Vision, Understanding Euro Notes and Coins, at p. 4. Specific patterns using intaglio print which are perceptible to touch are also printed along the edges of the EUR 200 and EUR 500 banknotes to help with recognition. Id. at p. 5. The Japanese yen also uses intaglio print to incorporate a tactile feature specifically designed to assist the blind in denominating currency. See Exhibit P-32, Bank of Japan Description of Yen Note. At the time of the 1995 NAS Study, there were 16 countries that used intaglio printing to produce tactile marks on currency. See Exhibit P-2, NAS Study at p. 103. C. Defendant’s Current Cost Estimates are Either Inflated or Unsubstantiated 86. Defendant’s cost estimates are based on the cost of modifying all denominations, including the $1.00 note. The $1 note consists of approximately 50% of all currency production. See Exhibit P-21, Ferguson Declaration at ¶5. Defendant asserts that it is precluded from modifying the $1 note due to legislative restrictions. See Def. Motion for Summary Judgment, at 18. Therefore, the cost estimates provided by Defendant are likely to be significantly reduced if the cost of modifying the $1 note is subtracted. 87. Defendant asserts that to emboss currency it will be required to purchase 12 embossing machines at $3 million each (See Exhibit P-26, Cost Impact of Embossing Feature, Def. Response to Third Document Production Request); to perforate currency it will be required to purchase 12 perforation machines at $5.5 million each (Exhibit P-27, Cost Impact of Perforation Feature, Def. Response to Third Document Production Request); and to add foil it will be required to purchase 12 foil stamp machines at $3.5 million each (Exhibit P-28, Cost Impact of Foil Stamp, Def. Response to Third Document Production Request). Defendant provides no documentation as to how it arrived at its
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 26 of 36
estimated cost per machine, or as to the number of machines required to perform the manufacturing operation, notwithstanding Plaintiff’s request for all documents supporting Defendant’s cost estimates. See Exhibit P-24, Def. Response to Document Production Requests No’s 10-16. 88. Defendant states that each new embossing machine will require hiring 2 pressman and 1 KG-4 helper per machine shift (Exhibit P-26, Cost Impact of Embossing Feature); each new perforating machine will require hiring one additional plate printer per machine shift (Exhibit P-27, Cost Impact of Perforation Feature), and each new foil stamp machine will require hiring 2 pressman and 1 KG-4 helper per machine shift (Exhibit P28, Cost Impact of Foil Stamp). Defendant provides no supporting documentation as to how it arrived at its estimated staffing cost per machine. 89. Defendant asserts that the addition of different colors for each denomination would require a one time additional equipment cost of $48 million, plus increased annual costs of $20 million, primarily for labor. See Exhibit P-7, Def. Response to Interrogatory #9. Documents supporting this estimate reflect that the additional capital costs consist of the purchase of 4 new printing presses at $12 million each. See Exhibit P-29, Cost Impact of Offset Printing Feature, Def. Response to Third Document Production Request. The increased labor cost consists primarily of the additional labor required to operate each new machine. Id. 90. Defendant’s cost estimates are inconsistent with the findings of the 1995 NAS Panel, which found that little additional capital investment would be required to add color to banknotes. See Exhibit P-2, NAS Study, at p. 70. In any event, Defendant has already added different colors to the $20 and $50 notes. See Exhibit P-7, Def. Response to
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 27 of 36
Interrogatory #9. Accordingly, the increased costs reflected above can only consist of the amounts required to add color to the remaining five denominations. 91. Defendant states that it currently plans to add different background colors to all seven denominations. See Exhibit P-6, Def. Response to Interrogatory #20. Defendant will incur the additional costs of adding different background colors for each denomination regardless of the outcome of this litigation. D. Defendant’s Asserted Cost Impacts Do Not Impose an Undue Burden, Even Assuming Their Accuracy 92. Defendant states that it has spent $4.2 billion over the past 10 years to produce currency. See Exhibit P-7, Def. Response to Interrogatory No. 1. This equates to an average of approximately $420,000,000 per year. Defendant further states that every aspect of currency production involves the incorporation of anti-counterfeiting features. See Exhibit P-7, Def. Response to Interrogatory No. 2. Therefore, Defendant states that it has spent $4.2 billion for this purpose as well. Id. 93. The use of different predominant colors for each denomination would result in increased annual costs $20 million (Exhibit P-7, Def. Response to Interrogatory No. 9), which is less than 4.7% of the average annual $420 million production cost. 94. The inclusion of an embossed numeral would result in increased annual costs of $16 million (Exhibit P-7, Def. Response to Interrogatory No. 5), or approximately 3.8% of average annual production costs. 95. Addition of a foil feature would result in increased annual costs of $15.3 million (Exhibit P-6, Def. Response to Interrogatory No. 22), excluding the cost of the foil itself which Defendant declines to estimate. This annual increase is approximately 3.6% of the average yearly $420 million production cost.
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 28 of 36
96. The use of a micro-perforation feature would result in additional annual costs of $9 million (Exhibit P-7, Def. Response to Interrogatory No. 6), or approximately 2% of average annual production costs. 97. The inclusion of a large denomination numeral would result in increased annual costs of $400,000 (Exhibit P-7, Def. Response to Interrogatory No. 8), which is approximately .095 percent, or less than one-tenth of one percent, of the average annual production costs. 98. The use of large geometric shapes on banknotes to indicate denomination would result in no increased annual costs. See Exhibit P-7, Def. Responses to Interrogatory No. 10. 99. Defendant calculated the cost increases associated with making the design modifications sought by Plaintiffs on the basis of its costs per 1000 notes. See Exhibit P23, Cost Impact of Enlarged Numeral; Exhibit P-26, Cost Impact of Embossing Feature; Exhibit P-27, Cost Impact of Perforation Feature, Exhibit P-28, Cost Impact of Foil Stamp; Exhibit P-29, Cost Impact of Offset Printing Feature. Approximately 50% of the Bureau’s production volume consists of the $1 note. See Exhibit P-21, Ferguson Declaration at ¶5. Therefore, the annual cost increases provided by Defendant in connection with making these design modifications must also be decreased by 50%, assuming that no modifications are made to the $1 note. The initial equipment costs estimated by Defendant must also be proportionately reduced by one-half, as only 50% of the estimated equipment would be required to meet the correspondingly reduced production volumes.
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 29 of 36
100. Defendant states that it has already spent approximately $49 million to make currency accessible to persons with visual disabilities. See Exhibit P-7, Def. Response to Interrogatory No. 4. Defendant states that these costs were incurred for the purpose of adding color and a large denomination numeral. Id. The additional costs to provide accommodations for the visually disabled are not disproportionate to the costs which Defendant states it has already expended for this purpose. 101. Defendant states that its current cost estimates do not include any reduction in the useful life of the currency due to degradation of the embossed numeral or the microperforation feature. Defendant states that the reduction in the useful life of banknotes associated with degradation of these features “cannot be determined.” See Exhibit P-7, Def. Response to Interrogatories No’s. 5, 6. The Ferguson Declaration states that no testing has been conducted to determine the extent to which the useful life of a note would be reduced by inclusion of such features. See Exhibit P-21, Ferguson Declaration, ¶ 50. 102. Defendant’s estimates as to the useful life of currency as presently designed are inconsistent with estimates provided by the Federal Reserve Board. The Director of the BEP stated that a “on average, a five dollar bill is withdrawn after approximately two years in circulation, a ten dollar bill is withdrawn after approximately 3 years in circulation, a twenty dollar bill is withdrawn after approximately four years in circulation, and both a fifty and a one hundred dollar bill is withdrawn after approximately nine years in circulation.” See Exhibit P-21, Ferguson Declaration at ¶ 50.
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Case 1:02-cv-00864-JR Document 53 Filed 11/23/2005 Page 30 of 36
103. The Federal Reserve Board states that the average life of a $5 note is 16 months, a $10 note is 18 months, a $20 note is 24 months, a $50 note is 55 months, and a $100 note is 89 months. See Exhibit P-35, Federal Reserve Board FAQ. 104. The BEP receives no appropriations from Congress. See Exhibit P-21, Ferguson Declaration, ¶ 7. Rather, its operations are financed by means of a revolving fund. This fund is reimbursed through product sales for the direct and indirect costs of operations. Id. The Bureau is authorized to add an amount sufficient to cover any new capital investments and additional working capital requirements in the prices it charges for its products. Id. 105. In the case of currency production, the Bureau’s costs are reimbursed by the Federal Reserve Board. Id. Any increased costs to modify U.S. currency to accommodate the visually disabled would be passed on to the Federal Reserve System. See Exhibit P-21, Ferguson Declaration, ¶ 22. The Federal Reserve System will in turn pass through these costs to its member banks and other private financial institutions. Id.
COUNT I 106. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 107. The Rehabilitation Act requires that U.S. banknotes be designed in such a manner so that their denominations are readily identifiable by persons with blindness or other vision impairments. 108. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by designing and manufacturing banknotes which are identical in size and texture,
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thereby precluding individuals with blindness or other vision impairments from being able to denominate such banknotes.
COUNT II 109. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 110. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to include in banknotes a single large denomination numeral at least 40% 60% of the current banknote height;
COUNT III 111. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 112. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by printing the larger denomination on the reverse side of the $5, $10, $20, and $50 notes with green ink, instead of black ink, thereby significantly reducing contrast levels;
COUNT IV 113. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 114. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by printing the larger denomination numeral on the $5, $10, $20, and $50 bills on only one side of the banknote, and by not printing any larger denomination numeral on the $100 note.
COUNT V
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115. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 116. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to design banknotes with strongly contrasting different predominant colors for each denomination;
COUNT VI 117. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 118. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to perform any testing as to the contrast, location, and physical size of the larger denomination numeral and colors which would be most useful to the visually disabled in denominating U.S. banknotes.
COUNT VII 119. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 120. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to perform any testing to determine the gradations which will permit reliable human discrimination of low-relief tactile features on banknotes.
COUNT VIII 121. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein.
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122. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to perform any research into the development of durable tactile features on banknotes.
COUNT IX 123. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 124. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to evaluate the competing advantages of the various tactile features which are currently used in other currencies for purposes of their inclusion on U.S. currency, such as embossed dots, foil, micro-perf, and raised intaglio printing, and by failing to incorporate a tactile feature into the design of U.S. banknotes.
COUNT X 125. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 126. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to diligently pursue the development of an inexpensive and portable external device which is capable of denominating banknotes in an accurate and rapid manner.
COUNT XI 127. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 128. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to provide any meaningful future plans to make currency accessible to persons with visual disabilities.
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COUNT XII 129. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 130. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by ignoring the recommendations of the 1995 NAS Panel when implementing its 1996 and 2004 redesigns;
COUNT XIII 131. Plaintiffs incorporate each allegation of paragraphs 1 through 105 as fully set forth herein. 132. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by failing to provide accurate and substantiated estimates to this Court with respect to the cost of the design changes sought by Plaintiff; by failing to estimate the cost of using intaglio printing to create a suitable tactile feature; and by failing to provide this Court with accurate data as to the useful life of banknotes so that the Court can evaluate Defendant’s arguments with respect to the impact of adding a tactile feature on banknote durability. 133. Plaintiffs will suffer irreparable harm if Defendants are not restrained from breaching their duty under the Rehabilitation Act.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays that this Court further grant the following relief: (a) issue a declaratory judgment that the Defendants have an obligation under the Rehabilitation Act to design banknotes in such a manner so that they may be readily identified by individuals with visual disabilities.
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(b) issue a permanent injunction prohibiting Defendants from continuing to manufacture banknotes in the present manner, the effect of which is to preclude millions of Americans from participating in the essential functions of everyday life. (c) issue a permanent injunction requiring that banknotes be designed to incorporate features which will make them accessible to people with blindness and other vision impairments; and in conjunction therewith order that Defendant provide for the approval of the Court a detailed corrective action plan as to the features which it will incorporate into the design of U.S. banknotes to accomplish such purpose. Defendant shall address the following specific elements in the corrective action plan to be provided for the Court’s approval:
(1) The specific design features on U.S. banknotes which Defendant will incorporate for the purpose of assisting individuals with visual disabilities other than total blindness. Said plan will further contain a schedule by which any such design features will be added to U.S. banknotes. (2) The specific design features on U.S. banknotes which Defendant will implement for the purpose of assisting the totally blind. In the alternative, Defendant shall provide the Court with a statement of the actions it intends to take, including additional research and testing, which will lead to the incorporation of features which will be useful to the totally blind. Said plan will further contain projected implementation dates, with appropriate milestones to permit ongoing oversight by the Court. (3) The corrective action plan shall further provide for consultation with various disabled user groups in connection with the implementation of any features.
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(4) Defendant shall provide its corrective action plan for the Court’s approval not later than 180 days from the date of the Court’s order, and in connection therewith the Court shall maintain continuing jurisdiction to monitor Defendant’s ongoing compliance. (d) issue a permanent injunction mandating that Defendant diligently pursue the development of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes. (e) award expenses, costs, and reasonable attorney fees to Plaintiffs (f) issue such further relief as this Court deems just and appropriate.
Respectfully submitted,
__________________________ Jeffrey A. Lovitky Attorney at Law D.C. Bar Number 404834 1735 New York Avenue, N.W. Suite 700 Washington D.C. 20006 (202) 429-3393 ATTORNEY FOR PLAINTIFF
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 Case 1:02-cv-00864-JR Document 1 Filed 05/03/2002 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN COUNCIL OF THE BLIND

)

1155 15th Street, N.W. , Suite 720

)

Washington, D.C. 20005

)

)

PATRICK SHEEHAN

)

14311 Astrodome Dr.

)

Silver Spring, MD. 20906

)

)

OTIS STEPHENS

)

1141 Southgate Rd.

)

Knoxville, TN 37919

)

)

Plaintiffs,

)

)

v.

)

)

Paul H. O'Neill

)

Secretary of the Treasury

) Civil Action No. ________

1500 Pennsylvania Avenue, NW

)

Washington, D.C. 20220

)

)

AND

)

)

Rosario Marin

)

Treasurer of the United States

)

1500 Pennsylvania Avenue, NW

)

Washington, D.C. 20220

)

)

Defendants.

)

__________________________________________)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. INTRODUCTION & SUMMARY
This litigation seeks to remedy a long-standing form of discrimination against persons with visual disabilities. United States banknotes are the medium of exchange in almost every facet of daily life. The ability to use these banknotes in a fast and easy

Case 1:02-cv-00864-JR Document 1 Filed 05/03/2002 Page 2 of 17
manner is an essential ingredient of independent living. Most Americans are fortunate enough to take for granted the ability to recognize banknote denominations. However, for millions of Americans with blindness or low vision, it is impossible to recognize the denomination of banknotes. This is due to the fact that U.S. banknotes are all identical in size and color, and virtually identical in design. As a result, individuals with visual disabilities suffer needless impediments in purchasing groceries, transportation, and a multitude of other goods and services. Further, the current banknote design puts individuals with visual disabilities at a heightened risk of fraud and deceit in connection with transactions requiring the use of banknotes.
1. This action seeks declaratory and injunctive relief under the provisions of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Pursuant to this provision, individuals with disabilities may not be excluded from or denied the benefits of participation in any program or activity conducted by United States government. The issuance of banknotes is clearly an activity conducted by the United States government on behalf of all of its citizens. However, persons with visual disabilities are largely excluded from enjoying the benefits of this activity due solely to their physical limitations. This action seeks relief from the unnecessary exclusion of millions of Americans from a critical function of everyday life.
2. The issue of banknote denomination by individuals with blindness or low vision was thoroughly addressed in a 1995 study by the National Academy of Sciences. This study was commissioned by the Department of the Treasury, and may be read in its entirety at http://www.nap.edu/catalog/4828.html?se_side.
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3. The National Academy of Sciences study was prepared by a panel composed of leading experts in the field of banknote production and currency design, anti-counterfeiting methods, materials composition and chemistry, as well as low vision and blindness research. This panel recommended three straightforward solutions. The panel concluded that each of its recommendations were capable of implementation on the basis of existing technologies and within a relatively short time frame, i.e., one to three years.
4. The three recommended solutions proposed by the National Academy of Sciences panel were as follows: (a) the size of banknotes should vary by denomination. This approach has been adopted in over 120 countries in the world. This recommendation could readily be implemented within existing technology for banknote production. Additionally, existing automated teller machine technology is capable of handling different size banknotes; (b) the color of banknotes should vary by denomination. This is an established practice in over 130 countries. Moreover, this recommendation could be implemented using the existing intaglio printing methods now in use at the Bureau of Engraving and Printing; (c) a high contrast denomination numeral should be placed on one side of the banknote, the size of which is at least 1/2 the size of banknote height.
5. The panel concluded that the only reliable method currently available by which blind individuals may accurately denominate banknotes is through keying denomination to banknote size. The second and third recommendations pertaining to the use of colors and larger size denomination numeral would be especially useful to persons with low vision.
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6. This litigation seeks to compel Defendants to implement the recommendations of the panel of experts which it convened through the National Academy of Sciences. Unfortunately, Defendants have taken little action to implement the panel’s 1995 recommendations.
7. The 1996 and 1999 series banknotes contained minor modifications to the denomination numeral on the lower right hand corner of backside of the $5, $10, $20, $50, and $100 banknotes. However, this slightly larger denomination numeral is written in green, as opposed to black ink, thereby reducing contrast levels. Additionally, the size of this larger denomination numeral is only a fraction of the size recommended by the National Academy of Sciences panel, and is placed on only one corner of one side of the banknote. As a result, this modification is of little utility to persons with low vision, and is of no utility to individuals with blindness. Moreover, even this minor design change has not been incorporated into the $1 banknote.
8. The inaction of the Defendant in implementing these recommendations is largely due to Defendant’s perception that the public would be unwilling to accept any changes to the size, color, or design of banknotes. However, as noted by the National Academy of Sciences panel, such unwillingness could readily be overcome if accompanied by a thoughtfully planned educational campaign by the Defendant. Additionally, any notion that the American public is unwilling to accept money of different sizes is negated by the fact that the size of U.S. coinage varies by denomination. Moreover, U.S. banknotes are by statute legal tender for all debts, and therefore must necessarily be accepted by all persons conducting currency transactions, regardless of personal preferences
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Case 1:02-cv-00864-JR Document 1 Filed 05/03/2002 Page 5 of 17
II. JURISDICTION AND VENUE 9. Jurisdiction is properly vested in this Court pursuant to 28 U.S.C. § 1331 over causes of action arising under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 10. Venue lies in this district under 28 U.S.C. 1391(e).
III. PLAINTIFFS 11. The American Council of the Blind is the nation's leading membership organization of blind and visually impaired people. It was founded in 1961 and incorporated in the District of Columbia. The Council's membership numbers in the tens of thousands. ACB has 51 state and regional affiliates and 20 national special interest and professional affiliates. The Council strives to improve the well-being of all blind and visually impaired people by: serving as a representative national organization of blind people; elevating the social, economic and cultural levels of blind people; improving educational and rehabilitation facilities and opportunities; cooperating with the public and private institutions and organizations concerned with blind services; encouraging and assisting all blind persons to develop their abilities and conducting a public education program to promote greater understanding of blindness and the capabilities of blind people. ACB monthly publishes The Braille Forum, a national magazine with a readership of approximately 26,000. The Council also produces a monthly half-hour radio information program, ACB Reports, for radio reading information services. It also distributes TV and radio public service announcements highlighting the capabilities of blind people. The ACB has many members who would benefit from making United States banknotes accessible to persons with visual disabilities. The American Council of
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the Blind has adopted numerous resolutions over the last 25 years with the purpose of encouraging the Defendant to redesign currency so as to make denomination possible for persons with visual disabilities.
12. Otis Stephens is a blind person residing at 1141 Southgate Rd., Knoxville, TN 37919. Dr. Stephens is a Professor of Law at the University of Tennessee School of Law at Knoxville, Tennessee. Dr. Stephens generally relies upon a trusted sighted individual to inform him as to the denomination of a particular banknote. Dr. Stephens then typically distinguishes between banknotes of varying denominations by folding the banknote into a shape peculiar to that denomination. For example, $5 banknotes are folded lengthwise; $10 banknotes are folded in halves, etc. When receiving change after purchasing an item, Dr. Stephens generally relies upon the store cashier to identify the denomination of each banknote handed to him. Dr. Stephens then folds the money received as change according to the system described above.
13. Patrick Sheehan is an individual with low vision residing at 14311 Astrodome Dr., Silver Spring, MD. 20906. Mr. Sheehan is a computer specialist employed by the United States Department of Veterans Affairs in Washington, D.C. Mr. Sheehan has no vision in his right eye, and left eye vision is at 20/350. Only in the most optimal lighting conditions is Mr. Sheehan able to distinguish between banknotes of varying denominations. Typically, Mr. Sheehan uses a closed circuit television to magnify the banknote so that he can distinguish between banknotes of different denominations. Mr. Sheehan then folds the banknote into a unique shape peculiar to that denomination. Banknotes received from a cashier after purchasing an item often remain
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unsorted until Mr. Sheehan is in a position to examine the banknote through one of the means described above.
IV. DEFENDANTS 14. Paul H. O’Neill is the Secretary of the Treasury (“Secretary”). The United States Department of Treasury is an executive agency of the United States government. The Department of the Treasury is organized into two major components: Departmental offices and the operating bureaus. The Bureau of Engraving and Printing (“BEP”) is one of the operating bureaus of the Department of the Treasury. Among the BEP’s functions include designing and manufacturing United States currency; designing and manufacturing many postage stamps, customs stamps and revenue stamps; designing, engraving and printing Treasury bills, notes and bonds, and other U.S. securities; and designing, engraving, and printing commissions, permits, and certificates of awards. 15. Rosario Marin is the Treasurer of the United States. Responsibility for oversight of the Bureau of Engraving and Printing was assigned to the Treasurer of the United States in 1981. The Treasurer reports to the Secretary of the Treasury through the Assistant Secretary (Management)/Chief Financial Officer. 16. United States banknotes are all produced by the BEP. The BEP produces 37 million notes a day with a face value of approximately $696 million. The BEP has printed all U.S. banknotes since October 1, 1877.
V. STATEMENT OF THE CASE A. Statutory Framework
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17. Section 504 of the Rehabilitation Act of 1973 ("Section 504") prohibits discrimination against persons with disabilities in connection with any program or activity conducted by any executive agency of the United States government. Specifically, this section provides in pertinent part as follows:
No otherwise qualified individual with a disability in the United States, as defined in section 706 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. See 29 U.S.C. § 794. 18. The term "individual with a disability" means any person who— (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. See 29 U.S.C. § 705 (2001) 19. United States banknotes are legal tender for all debts, public and private. 31 U.S.C. § 5103 (2001) 20. All banknotes must contain the inscription "In God We Trust" in a place the Secretary decides is appropriate. Further, only the portrait of a deceased individual may appear on United States banknotes. The name of the individual must be inscribed below the portrait. Banknotes must further be produced from intaglio plates on plate printing presses selected by the Secretary. 31 U.S.C. § 5114. 21. Banknotes must bear a distinctive letter and serial number which is assigned by the Board of Governors of the Federal Reserve System. 12 U.S.C. § 413 Banknotes may be produced in denominations of $1, $2, $5, $10, $20, $50, $100, $500, $1,000, $5,000, $10,000, as required to fulfill the needs of the Federal Reserve
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banks. 12 U.S.C. § 418. However, U.S. banknotes are currently published in 6 different denominations, i.e., $1, $5, $10, $20, $50, and $100.
22. Except as provided above, the form and design of United States currency is solely within the discretion of the Secretary of the Treasury. 12 U.S.C. § 418.
B. Impact of Blindness and Low Vision on Banknote Denomination 23. There are more than 3 million people in the United States with low vision. Low vision is frequently defined as having corrected visual acuity no better than 20/60 in the better eye, or as being unable to read regular newsprint with optimal reading glasses. Additionally, persons with severe peripheral field loss, i.e., who have a maximum visual field of no more than 30 degrees, are also defined as having low vision. 24. Low vision most severely impacts elderly Americans. Approximately 10 percent of the population within the age category of 75 to 84 is believed to have low vision. Another 25 percent of the population 85 and older also has low vision. However, visual impairments are not confined solely to the elderly population. Approximately 1 million persons below age 65 experience low vision. An additional 9 million Americans experience other forms of visual impairment which may interfere with activities of daily living. 25. There are approximately 200,000 of people in the United States who are blind, i.e., have no useful pattern vision. 26. Blindness constitutes a physical impairment which substantially limits one or more of such individual’s major life activities. As such, persons with blindness are “individuals with a disability” for purposes of 29 U.S.C. § 705.
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27. Low vision constitutes a physical impairment which substantially limits one or more of such individual’s major life activities. As such, persons with low vision are “individuals with a disability” for purposes of 29 U.S.C. § 705.
28. The ability to identify banknotes denominations in a private and independent manner constitutes an essential ingredient of everyday life. Individuals who are unable to identify banknote denominations are precluded from participating in a variety of transactions which are integral to daily life, such as the ability to freely make purchases. Such individuals are unable to independently ascertain whether they have provided the appropriate banknote denominations when purchasing goods and whether they have received as change the appropriate banknotes. Further, individuals with visual disabilities experience increased vulnerability to fraudulent transactions as a result of the design of banknotes.
29. Unlike U.S. coinage, the denomination of which differs by size, all U.S. currency has been the same size since 1929, i.e. 2.61 inches wide by 6.14 inches long by .0043 inches thickness. However, in over 120 countries, the size of the banknote varies with its denomination.
30. All banknote denominations are printed with identical ink on the same security paper.
31. People who are blind are unable to identify various banknote denominations due to the fact that all U.S. banknotes, regardless of denomination, are identical in size and texture.
32. Individuals with low vision experience difficulty in rapidly identifying banknote denomination, particularly under adverse lighting conditions. For example, a
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person with low vision may be able to identify currency denomination under excellent lighting conditions; however, such an individual may be unable to do so in a taxi at nighttime. This difficulty reduces the ability of many such persons to engage in successful banknote transactions, which require rapid identification of denomination without the need for drawn-out examination or deliberation.
33. Portable electronic devices exist which may assist individuals in denominating banknotes. However, these machines are usually expensive, approximately $300. Moreover, the condition of the banknote may adversely impact upon the reliability of these machines. Finally, these machines are relatively slow, and thus constitute an additional encumbrance in attempting to denominate banknotes in a fast and easy manner.
C. The National Academy of Sciences Recommends a Major Banknote Redesign 34. The National Academy of Sciences is a private, nonprofit society of
distinguished scholars, chartered by Congress in 1863 to advise the federal government on scientific and technical matters.
35. In 1995, the National Academy of Sciences published a report entitled “Currency Features for Visually Impaired People.” This report was prepared under contract with the United States Treasury Department, Bureau of Engraving and Printing. The objectives of the National Academy of Sciences study, as requested by the BEP, were to: (a) assess features which can be utilized by visually disabled individuals in recognizing and denominating banknotes; (b) recommend features which may be reasonably incorporated into banknotes using existing technology; (c) suggest
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implementation strategies to make the recommended features more effective; and (d) identify promising future research areas.
36. The study recommended several near term actions to be taken by the BEP in redesigning banknotes so as to make them more accessible to persons with visual disabilities. These near term actions involve the incorporation of features into banknotes which are based on existing technologies and which are commonly in use today in other countries. The 1995 study concluded that the following features should be incorporated into U.S. banknotes within a 1 to 3 year timeframe:
37. First, both the length and height of banknotes should be varied so as to allow persons with visual disabilities to make reliable judgments concerning denomination. The panel noted that the technology required to produce banknotes of differing size is widely available, and in fact is in use in over 120 countries. The study concluded that this is the only solution which is presently available based on existing technologies which will fully satisfy the needs of blind persons. The panel noted that any additional costs in capital investment to make this change would likely be offset by the savings in material cost which could be achieved by making the most frequently printed banknotes the smallest in size. The study further noted that this change may be made within the framework of existing technology for automated teller machines (“ATM’s”), based upon the widespread use of ATM machines in other countries capable of handling a variety of national currencies. The panel further held that, with sufficient preparation, the public will come to readily accept this change as demonstrated by the fact that it accepts coinage of different sizes. The panel further recommended public education as to the benefits of and reasons for this design change.
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38. Second, the study concluded that a single color should dominate at least one face of the banknote, and such color should be distinguishable from other colors in the banknote sequence so as to make the note identifiable under poor lighting conditions. The panel noted that the technology to implement this feature would not require major changes to existing banknote production methods, and would be inexpensive to implement.
39. Third, the study recommended that banknotes be redesigned so as to contain at least a single high contrast denomination numeral, in a plain font, which is larger than one-half the size of the current banknote height.
D. The Department of Treasury Fails to Take Meaningful Corrective Action 40. The Defendants have failed to implement any of the recommendations of
the panel convened by the National Academy of Sciences. Nor have the Defendants taken any other meaningful action to facilitate denomination for individuals with blindness or low vision.
41. The $5 and $10 banknotes were redesigned in 1999. In 1996, $20, $50, and $100 banknotes were redesigned. Current and prior designs of these notes may be seen on the BEP web site at http://www.bep.treas.gov.
42. The redesigned $5, $10, $20, $50, and $100 notes incorporate what is referred to as a low vision feature consisting of a larger denomination numeral on the lower right hand corner on the back of the note.
43. The larger denomination numeral on the $5, $10, $20, $50, and $100 notes are printed with green, not black ink, thereby reducing contrast levels. Further, the larger denomination numeral is significantly smaller in size than recommended by the National
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Academy of Sciences panel. The National Academy of Sciences panel recommended that
the larger denomination numeral should be at least 1/2 the size of banknote height.
44. The 1996 and 1999 redesigns did not implement any of the panel’s
recommendations with respect to using color and size as a key to denomination.
E. Special Statutory Requirements with Respect to the Design of the $1 Banknote
45. The Department of Treasury and General Government Appropriations Act
for Fiscal Year 2002 prohibits the use of any funds for the purpose of redesigning the $1
banknote. See Public Law 107-67, Nov. 12, 2001, § 117. Similar language appeared in
the Department of Treasury and General Government Appropriations Act for FY 2000,
Public Law 106-58, Sept. 29, 1999, § 117. However, the Conference Report on H.R.
4104, Treasury and General Government Appropriations Act, 1999, makes explicit the
Congressional intent with respect to the $1 banknote. The Conference Report states as
follows:
The conferees remain concerned about the cost associated with producing special anti-counterfeiting properties for the estimated 6 billion circulating $1 Federal Reserve Notes. As a result, the conferees do not believe the Bureau of Engraving and Printing should undertake cost prohibitive anti-counterfeiting changes to the $1 note. However, the conferees do believe it is important to update the currency, such as making minor modifications to assist the visually impaired. Therefore, the conferees direct the Department of the Treasury and the Bureau of Engraving and Printing not to pursue redesign of the $1 Federal Reserve Note to combat international counterfeiting threats, but to only make minor design enhancements to the $1 note for the visually impaired and elderly population, provided it has no effect on the use of $1 Federal Reserve Notes with existing bill accepting machinery.
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See Conference Report on H.R. 4104, Treasury and General Government Appropriations Act, 1999, 144 Cong. Rec, H 9870, October 7, 1998.
46. Contrary to the intent of the Congress, the Defendant has failed to incorporate even minor changes to the $1 banknote, including the addition of the larger denomination numeral.
COUNT I DEFENDANT’S VIOLATION OF THE REHABILITATION ACT 47. Plaintiffs incorporate each allegation of paragraphs 1 through 46 as fully set forth herein. 48. The Rehabilitation Act requires that U.S. banknotes be designed in such a manner so that their denominations are readily identifiable by persons with blindness or low vision. 49. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by designing and manufacturing banknotes which are identical in size, thereby precluding individuals with blindness or low vision from being able to identify such banknotes. 50. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by designing and manufacturing banknotes which are identical in color, thereby precluding individuals with low vision from being able to identify such banknotes. 51. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by designing and manufacturing banknotes which are identical in
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texture, thereby preventing individuals with blindness or low vision from being able to identify such banknotes.
52. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by designing and manufacturing banknotes which are identical in color, thereby precluding individuals with low vision from being able to identify such banknotes.
53. Defendants have acted contrary to the legal requirements of the Rehabilitation Act by designing and manufacturing banknotes which fail to include a single high contrast large denomination numeral of sufficient size so as to permit an individual with low vision to be able to readily identify such banknotes.
54. Plaintiffs will suffer irreparable harm if Defendants are not restrained from breaching their duty under the Rehabilitation Act.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays that this Court further grant the following relief:
(a) issue a declaratory judgment that the Defendants have an obligation under the Rehabilitation Act to design banknotes in such a manner so that they may be readily identified by individuals with blindness or low vision.
(b) issue a permanent injunction prohibiting Defendants from continuing to manufacture banknotes in the present manner, the effect of which is to preclude millions of Americans from participating in the essential functions of everyday life.
(c) issue a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with
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visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral
which is at least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination. (d) issue a permanent injunction mandating that the $1 banknote be redesigned to incorporate new low vision features as mandated by Congress. (e) award expenses, costs, and reasonable attorney fees to Plaintiffs (f) issue such further relief as this Court deems just and appropriate.

Dated: May 2, 2002

Respectfully submitted,

__________________________ Jeffrey A. Lovitky Attorney at Law D.C. Bar Number 404834 1735 New York Avenue, N.W. Suite 700 Washington D.C. 20006 (202) 429-3393
ATTORNEY FOR PLAINTIFF

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 Case 1:02-cv-00864-JR Document 15 Filed 05/28/2003 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

DEFENDANTS' MOTION TO DISMISS The defendants, by their undersigned counsel, hereby move that this action be dismissed under Rule 12 of the Federal Rules of Civil Procedure, on the grounds that plaintiffs have failed to state a claim upon which relief can be granted and have not exhausted the administrative procedures prerequisite to seeking judicial relief. Defendants also move, alternatively, that two of plaintiffs' prayers for relief be dismissed, and that the Treasurer of the United States be dismissed as a defendant. The grounds for this motion are more fully set forth in the accompanying Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss. Dated: May 28, 2003
Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney

Case 1:02-cv-00864-JR Document 15 Filed 05/28/2003 Page 2 of 27 RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel Attorneys, Department of Justice Civil Division, Room 7122 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS
2

Case 1:02-cv-00864-JR Document 15 Filed 05/28/2003 Page 3 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

May 28, 2003

ROBERT D. McCALLUM, JR. Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel
Attorneys, Department of Justice Civil Division, Room 7122 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

Case 1:02-cv-00864-JR Document 15 Filed 05/28/2003 Page 4 of 27
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The Form of United States Currency Is Within the Specific, Express Statutory Discretion of the Secretary and Thus Cannot Be Subject to the Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. The Existing Currency Does Not Constitute "Discrimination" Against Visually-Impaired Persons . . . . . . . . . . . . . . . . . . . . . . 9
III. Plaintiffs Have Not Exhausted the Administrative Procedures Prerequisite to Seeking Judicial Relief . . . . . . . . . . . . . . . . . . . . . . . 15
IV. Two of Plaintiffs' Prayers for Relief Must Be Dismissed . . . . . . . . . . . . . . . . . . 18 A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury . . . . . . . . . . . . . . . . 18 B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
V. The Treasurer of the United States Should Be Dismissed as a Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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INTRODUCTION By statute, the "form and tenor" of United States Federal Reserve notes "shall be . . . as directed by the Secretary of the Treasury," and the Secretary is charged with designing currency "in the best manner to guard against counterfeits and fraudulent alterations." 12 U.S.C. § 418. Therefore, as the plaintiffs concede, "the form and design of United States currency is solely within the discretion of the Secretary," subject only to statutory requirements regarding the denominations to be produced, the use of a specific printing process, the printing of a distinctive letter and serial number on each bill, and the inclusion of the motto "In God We Trust" and of the portrait and name of a deceased person. See Complaint ¶ 22; see also 12 U.S.C. §§ 413, 418; 31 U.S.C. § 5114. This discretion, moreover, is crucial to the Secretary's ability to choose the design elements that best guard against successful counterfeiting. Notwithstanding the Secretary's broad discretion regarding the "form and design" of the currency, plaintiffs assert that section 504 of the Rehabilitation Act of 1973 requires the Secretary to make various changes in the currency to enable blind and visually-impaired persons to distinguish more easily among the various denominations. 29 U.S.C. § 794; see Complaint ¶¶ 1, 9, 17. Plaintiffs' aim may be an appropriate subject for public policy discussion. Cf. Modderno v. King, 82 F.3d 1059, 1060 (D.C. Cir. 1996), cert. denied, 519 U.S. 1094 (1997) ("Whatever the merit of these broader arguments, we must leave them for resolution in other spheres, such as the political branches of government . . . ."). As a legal matter, however, there is no basis for a court to order the Secretary to change the currency. First, the statute that specifically governs the design and production of the currency, referred to above, necessarily limits the Rehabilitation Act's more general provisions regarding discrimination against persons with disabilities. Second, even if the Secretary's express statutory discretion were subject to a general anti-discrimination

Case 1:02-cv-00864-JR Document 15 Filed 05/28/2003 Page 6 of 27
statute, the existing currency would not violate the Rehabilitation Act: The currency does not constitute unlawful "discrimination" against the blind and visually-impaired, in that such persons already have "meaningful access" to currency-based economic transactions. See Alexander v. Choate, 469 U.S. 287, 301 (1985). And third, plaintiffs have not exhausted the administrative procedures prerequisite to seeking the judicial relief requested here. For each of these reasons, therefore, this action should be dismissed.1
Assuming dismissal of this entire action were, for some reason, deemed inappropriate, two of plaintiffs' individual prayers for relief should be dismissed — that is, their request for an order that certain specific features be included in any redesigned currency, and their request for an order requiring a redesign of the one-dollar bill. See Complaint at 16-17. Assuming the existing currency were found to violate the Rehabilitation Act, the details of a redesign of the currency would be within the sole discretion of the Secretary of the Treasury. Further, even if the existing currency were found to violate the Act, a specific legislative provision expressly prohibiting any redesign of the one-dollar bill would foreclose including that denomination in an injunction. Lastly, one of the two defendants named in this action — the Treasurer of the United States — should be dismissed because the Treasurer has no role in the design or production of currency.
1 Defendants also maintain that making the changes sought by the plaintiffs would impose "undue financial and administrative burdens" on the federal government and on the private sector, such that the Rehabilitation Act does not require them. See Southeastern Community College v. Davis, 442 U.S. 397, 412 (1979). Defendants have submitted a motion for summary judgment on this basis, which the Court has denied for lack of an adequate factual record. Should this present motion to dismiss be denied, defendants contemplate renewing their motion for summary judgment on the "undue burden" issue, after appropriate factual development.
2

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ARGUMENT I. The Form of United States Currency Is Within the Specific,
Express Statutory Discretion of the Secretary and Thus Cannot Be Subject to the Rehabilitation Act The country's current monetary system was established by the Federal Reserve Act of 1913. See Act of Dec. 13, 1913, ch. 6, 38 Stat. 251. A portion of section 16 of that enactment, now codified as section 418 of Title 12, governs the production of United States currency: § 418. Printing of notes; denomination and form
In order to furnish suitable notes for circulation as Federal reserve notes, the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of such notes of the denominations of $1, $2, $5, $10, $20, $50, $100, $500, $1,000, $5,000, $10,000 as may be required to supply the Federal Reserve banks. Such notes shall be in form and tenor as directed by the Secretary of the Treasury under the provisions of this chapter and shall bear the distinctive numbers of the several Federal reserve banks through which they are issued. 12 U.S.C. § 418 (emphasis added); see Act of Dec. 13, 1913, ch. 6, § 16, 38 Stat. at 267; see also 31 U.S.C. § 321(a)(4) (authority of Secretary of the Treasury includes "engrav[ing] and print[ing] currency"); id. §§ 5114-5115 (Secretary's production of currency). The primary consideration in the Secretary's design of currency is the security of the notes — that is, protection against counterfeiting. See 12 U.S.C. § 418 ("the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations"); 31 U.S.C. § 5114(a) ("Engraving and printing shall be carried out within the Department of the Treasury if the Secretary decides the engraving and printing can be carried out as cheaply, perfectly, and safely as outside the Department.").
3

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The underlined language in section 418, quoted above, indicates that the "form and tenor" of the currency are committed to the Secretary's discretion, and that the Secretary is responsible for designing currency "in the best manner" to guard against counterfeiting.2 Indeed, the plaintiffs themselves recognize and concede that section 418 places the "form and design" of the currency "solely within the discretion of the Secretary." See Complaint ¶ 22. That discretion is limited only by statutes which control the denominations of currency that may be produced; mandate the use of a specific printing process; and require that each bill bear a distinctive letter and serial number, the portrait and name of a deceased person, and the motto "In God We Trust." 12 U.S.C. §§ 413, 418; 31 U.S.C. § 5114. The Secretary has delegated the development of currency design and the production of currency to the Bureau of Engraving and Printing, a component of the Department of the Treasury.
Section 418 has been amended several times since its initial enactment in 1913. Most recently, Congress amended the statute to change "the Comptroller of the Currency shall, under the direction of the Secretary of the Treasury, cause plates and dies to be engraved," in the first sentence, to "the Secretary of the Treasury shall cause plates and dies to be engraved." See Pub. L. No. 103-325, § 602(g)(3), 108 Stat. 2160, 2293 (1994). The recent amendment reaffirms Congress's intent that the Secretary exercise direct discretion over the form of the currency. See Consolidated Rail Corp. v. United States, 896 F.2d 574, 579 (D.C. Cir. 1990) (amendment bolsters conclusion that Congress is aware of statute and intends adherence to its plain language); accord Oviawe v. INS, 853 F.2d 1428, 1433 (7th Cir. 1988).
2 The word "tenor" in this provision is apparently an instance of the now-obsolete definition "quality, character, or condition." See The Random House College Dictionary 1354 (rev. ed. 1980).
4

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A fundamental principle of statutory construction is that "a more specific statute will be given precedence over a more general one, regardless of their temporal sequence." Busic v. United States, 446 U.S. 398, 406 (1980); see Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("[I]t is a commonplace of statutory construction that the specific governs the general."). For example, in Farmer v. Employment Security Commission, a group of temporary farm workers alleged that defendants had discriminated against them on the basis of familial status in the provision of housing, in violation of the Fair Housing Act of 1968. 4 F.3d 1274 (4th Cir. 1993). "The defendants answered that the Immigration Reform and Control Act of 1986 ["IRCA"], 8 U.S.C. § 1188(c)(4), which requires agricultural employers to provide family housing to foreign workers only where such is the prevailing practice in the relevant area or occupation, exclusively defines their responsibilities with respect to the provision of free housing." 4 F.3d at 1275. The defendants offered housing to temporary farm workers but not to their family members, having concluded that this was the prevailing practice in the relevant area. Id. at 1277.
The court saw the case as turning on whether the Fair Housing Act overrides the IRCA provision "as the controlling expression of agricultural employers' duty to provide family housing to temporary workers," rejecting plaintiffs' contention that the two statutes should be read "in tandem." Id. at 1275, 1282-83. In deciding which statute "must prevail," id. at 1283, the court employed the "basic principle of statutory construction that when two statutes are in conflict, a specific statute closely applicable to the substance of the controversy at hand controls over a more generalized provision." Id. at 1284. Therefore, since the IRCA provision was "an extremely narrow provision addressing whether growers . . . are required to provide housing,"
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whereas the Fair Housing Act section was "a very broad provision covering all housing," the former must "control[] over" the latter. Id.
Similarly, in Stewart v. Smith, a federal statute — 5 U.S.C. § 3307(d) — authorized federal law enforcement agencies to set maximum ages for appointment to certain positions. 673 F.2d 485, 487-88 (D.C. Cir. 1982). The Bureau of Prisons set a maximum age, pursuant to section 3307(d), for employees in its correctional institutions. Id. at 488-89. The plaintiff, whose inquiry about a job was rejected based on the maximum-age policy, alleged that the policy violated the Age Discrimination in Employment Act ("ADEA"), which required that "federal personnel actions 'be made free from any discrimination based on age'" unless age was a "bona fide occupational qualification" for the position. Id. at 489-90; see 29 U.S.C. § 633a(a), (b).
In resolving the conflict between these two statutes, the D.C. Circuit rejected plaintiff's assertion that any maximum age chosen under section 3007 had to comply with the ADEA's "bona fide occupational qualification" requirement. 673 F.2d at 490-91 & n.26. Rather than "superimpos[ing] ADEA standards on agency discretion under section 3307(d)," the court saw the case as a conflict between the "general" anti-discrimination language of the ADEA and the "specific" authorization of section 3307(d). Id. at 492. Where such a conflict exists, the courts "cannot ignore evidence that Congress intended to address a specific situation through special legislation." Id. Thus, said the court, the specific statute (section 3307(d)) should be "read independently" from the more general command of the ADEA, so that the former is an "exception" to the latter. Id. at 492, 494; accord Strawberry v. Albright 111 F.3d 943 (D.C. Cir. 1997) (per curiam) (conflict between ADEA and mandatory retirement age set forth in the Foreign Service Act of 1980), cert. denied, 522 U.S. 1147 (1998); Smith v. Christian, 763 F.2d 1322
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(11th Cir. 1985) (conflict between Rehabilitation Act and Navy's statutory authority to set physical standards for reserve officer applicants).
Finally, the Tenth Circuit employed a similar approach, under similar circumstances, in Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343 (10th Cir. 1987). There, a federal statute — section 202 of the Housing Act of 1959, 12 U.S.C. § 1701q — provided funding to meet the housing needs of "the elderly, the physically handicapped, the chronically mentally ill and the developmentally disabled." 815 F.2d at 1347. The statute gave a recipient of this funding "the choice to benefit one group, but not the other, if it so desire[d]." Id. at 1349. Using these funds, the defendants established housing for the elderly and the "mobility impaired," but categorically excluded from their project "the mentally impaired and developmentally disabled." Id. at 1345. Plaintiffs, a group of mentally impaired and developmentally disabled persons, alleged that the exclusion violated section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 815 F.2d at 1345.
The court in Knutsen rejected this contention, holding that plaintiffs' argument would "require[] the Court to use a general civil rights statute, § 504, to revoke or repeal § 202, a much more specific statute." Id. at 1353 (internal quotation marks omitted). That result, the court noted, would violate "the well-settled rule of statutory construction that a general statute will not be construed so as to repeal or revoke another more particular statute, regardless of the priority of enactment, absent express language by Congress stating its intent to revoke or repeal that statute." Id. (quoting Brecker v. Queens B'nai B'rith Housing Devel. Fund Co., 607 F. Supp. 428, 436 (E.D.N.Y. 1985), aff'd, 798 F.2d 52 (2d Cir. 1986)). The court held, therefore, that defen-
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dants' exclusion of the plaintiffs from their federally-funded housing did not violate the Rehabilitation Act.
Under these precedents, the Secretary of the Treasury's explicit discretion under the Federal Reserve Act to determine the form of the currency, "in the best manner to guard against counterfeits and fraudulent alterations," overrides the general anti-discrimination provisions of the Rehabilitation Act. See Complaint ¶ 22; 12 U.S.C. § 418. Just as the statute in Farmer allowed employers to refuse to provide family housing upon determining that it was not the prevailing practice in the area, just as the statute in Stewart gave federal agencies discretion to adopt maximum ages for certain positions, and just as the federal funding scheme in Knutsen allowed recipients to choose whom to serve, the Federal Reserve Act gives the Secretary discretion in designing United States currency. Therefore, just as the Rehabilitation Act, the Age Discrimination in Employment Act, and the Fair Housing Act had to yield in Knutsen, Stewart, and Farmer, the "general" language of the Rehabilitation Act must yield to the "more specific" discretionary language of the Federal Reserve Act. See Stewart, 673 F.2d at 492. Indeed, the preeminence of the discretion conferred in the Federal Reserve Act is infinitely clearer than in the statutes involved in these earlier cases, because the Secretary's discretion in this case involves a crucial matter of national economic security: guarding against counterfeiting of the currency. On this ground alone, the Federal Reserve Act compels judgment in favor of the defendants, without even reaching the question of whether the Rehabilitation Act requires changing the currency to accommodate the visually impaired.
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II. The Existing Currency Does Not Constitute "Discrimination" Against Visually-Impaired Persons Even if the Federal Reserve Act did not override the Rehabilitation Act in relation to the
design and production of U.S. currency, the Act would not require changing the currency for visually-impaired persons. Section 504(a) of the Rehabilitation Act provides in part:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. . . . 29 U.S.C. § 794(a). As explained below, the existing currency does not constitute "discrimination" against the visually-impaired for purposes of the Rehabilitation Act, in that the currency does not deny them "meaningful access" to participation in currency-based economic transactions. See Alexander v. Choate, 469 U.S. 287, 301 (1985). For this additional reason, then, this action should be dismissed.3 The Rehabilitation Act prohibits "exclud[ing]" disabled persons from "participation" in a covered program, denying them "the benefits of" such a program, or "subject[ing]" them to "discrimination" in such a program. 29 U.S.C. § 794(a). Visually-impaired persons are obviously not "excluded" from participation in currency-based transactions or entirely "denied the benefits" of using currency: by their own allegations, they have means available to identify currency and, thus, to engage in currency-based transactions. See Complaint ¶¶ 12-13, 33. The
3 The Court's order denying defendants' motion for summary judgment in this action inquired whether the production of currency is a "program or activity" to which the Rehabilitation Act applies. Without conceding that it is, defendants have chosen not to seek dismissal on that basis, given uncertainties regarding the law on that subject and the potential ramifications, in other contexts, of making an argument to the contrary.
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issue, therefore, is whether the existing U.S. currency subjects the visually impaired to "discrimination" actionable under the Rehabilitation Act. Nothing about the existing currency constitutes intentional discrimination against the visually impaired: the government provides the same currency for all persons; everyone is free to use whatever means they choose to identify the various denominations (short of defacing the bills); and plaintiffs do not allege that the government purposefully seeks to disadvantage the visually impaired in its design of currency.
The Supreme Court established, in Alexander v. Choate, the extent to which the Rehabilitation Act prohibits unintentional — or "disparate impact" — discrimination. Alexander involved a state's decision to reduce, from twenty to fourteen, the number of inpatient hospital days that the state's Medicaid program would provide for each recipient in one year. Plaintiffs alleged that this decision constituted "discrimination" against the disabled in violation of the Rehabilitation Act, because the reduction had a statistically greater impact on disabled persons than on non-disabled persons. 469 U.S. at 289-90. In a unanimous opinion, the Court rejected plaintiffs' contention that the Act prohibits "all action disparately affecting the handicapped." Id. at 298. "Because the handicapped typically are not similarly situated to the nonhandicapped," the Court explained, such a rule would require a decisionmaker to evaluate the effect of "every proposed action" on the disabled, then to consider "alternatives for achieving the same objectives with less severe disadvantage to the handicapped." Id. This, the Court held, "could lead to a wholly unwieldy administrative and adjudicative burden," which the Act does not require. Id.
In balancing the "objectives" of the Rehabilitation Act and "the desire to keep § 504 within manageable bounds," id. at 299, the Court held that the Act requires only "meaningful
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access" to the benefits to which it applies, and that a denial of "meaningful access" — albeit unintentional — would violate the Act. Id. at 301. Turning to the case at hand, the Court held that the reduction in hospital days did not deprive the disabled of meaningful access to Medicaid hospital benefits: "nothing in the record suggest[ed] that the handicapped [would] be unable to benefit meaningfully from the coverage they [would] receive under the 14-day rule," nor was there "any suggestion that the illnesses uniquely associated with the handicapped or occurring with greater frequency among them cannot be effectively treated, at least in part, with fewer than 14 days' coverage." Id. at 302 & n.22 (emphasis added).
The Court rejected, moreover, any suggestion that the state was required to "single out the handicapped for more than 14 days of coverage." Id. at 302 (emphasis in original). "[S]uch a suggestion," said the Court, would "rest on the notion that the benefit provided through state Medicaid programs is the amorphous objective of 'adequate health care.'" Id. at 303. That, however, was not the benefit; "Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs." Id. (emphasis added). Section 504, the Court concluded, "seeks to assure evenhanded treatment" of the disabled; it does not "guarantee . . . equal results." Id. at 304 (citations omitted); see Modderno v. King, 82 F.3d 1059, 1060 (D.C. Cir. 1996) (holding that Rehabilitation Act was not violated by $75,000 lifetime maximum for mental health benefits, but not other benefits, under federallysponsored health insurance plan), cert. denied, 519 U.S. 1094 (1997).
In light of Alexander, the United States currency under challenge here does not deprive visually-impaired persons of "meaningful access" to participation in currency-based transactions. Plaintiffs do not contend that visually-impaired persons cannot already participate in currency-
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based transactions; indeed, the plaintiffs themselves explain that such persons can and do use the existing currency by folding their currency in advance or relying on increasingly common and less expensive electronic devices to distinguish among denominations. See Complaint ¶¶ 12-13, 33. Thus, the plaintiffs are seeking, not simply "meaningful access," but optimal access or specially-designed access to the use of currency. The Court in Alexander, however, rejected the contention that the Rehabilitation Act requires government benefits "precisely tailored" to the needs of disabled persons. Id. at 303.
Like the Medicaid program at issue in Alexander, the existing U.S. currency provides a benefit to all persons, both sighted and visually-impaired. Like the plaintiffs in Alexander, the plaintiffs here contend that the benefit is not sufficient to meet the needs of the visually-impaired — that the benefit must be expanded. But the Rehabilitation Act does not require this expansion.
Some appellate court decisions since Alexander have reached the opposite conclusion under superficially similar — but ultimately distinguishable — facts. For example, in Crowder v. Kitagawa, the Ninth Circuit held that the Rehabilitation Act prohibited applying to guide dogs used by visually-impaired persons a Hawaii statute requiring that all carnivorous animals brought into the State be held in quarantine for 120 days to ensure the absence of rabies. 81 F.3d 1480 (9th Cir. 1996).4 The court based its holding on the burden imposed on the visually-impaired. Id. at 1484-85. Similarly, in Randolph v. Rodgers, the Eighth Circuit held that a hearingimpaired inmate at a state prison was denied "meaningful access" to prison disciplinary proceed-
4 The plaintiffs in Crowder relied on the Americans with Disabilities Act rather than the Rehabilitation Act. Nevertheless, precedent under either of these statutes is generally understood as applying to both of them. See LaCorte v. O'Neill, 139 F. Supp. 2d 45, 47 (D.D.C. 2001) ("The standards for determining a violation [of the Rehabilitation Act] are the same as those applied under the Americans with Disabilities Act.").
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ings by defendants' refusal to provide a sign-language interpreter during such proceedings. 170
F.3d 850 (8th Cir. 1999).
These decisions, however, are easily reconciled with Alexander. In both Crowder and
Randolph, the defendants had imposed, upon their own initiative, a governmental barrier or
burden. That is, the state in Crowder had imposed the quarantine, and the prison in Randolph
had imposed disciplinary proceedings. For example, the Ninth Circuit's fundamental objection to
the quarantine was that "its enforcement burdens visually-impaired persons in a manner different
and greater than it burdens others." 81 F.3d at 1484. Without those government-imposed
barriers or burdens, the plaintiffs in Crowder and Randolph would not have needed the accom-
modations that they sought. In Alexander, by contrast, the government itself was providing a
benefit (rather than imposing a burden), and the plaintiffs contended that the refusal to extend the
benefit had a disproportionate adverse impact on the disabled. Thus, the differing conclusions
make perfect sense: Although a government should be able to control the nature and quantity of
the benefits that it provides, government-imposed barriers or burdens should, in most circumstances, have an equal effect on the disabled and the non-disabled.5
5 Nor is the Second Circuit's decision in Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990), applicable here. In that case, the court held that the Rehabilitation Act required a school district to provide a sign-language interpreter for the deaf parents of non-hearing impaired students at certain school-initiated activities. That accommodation is not, however, analogous to the changes in the currency sought by the plaintiffs here; the defendants in Rothschild were required merely to provide interpreters for the plaintiffs, not to change the activities in question in ways that would have affected every participant. In any event, the court's rationale in Rothschild was based entirely on rejecting defendants' assertion that the parents were not "otherwise qualified" for the school activities. Id. at 290-93. Since the defendants had not made a "meaningful access" argument, the court did not analyze that issue. Indeed, the decision does not even discuss, in any significant sense, the Supreme Court's opinion in Alexander until turning to the reasonableness of the accommodation requested by the plaintiffs. Id. at 292-93. But cf. id. at
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This distinction reinforces the conclusion that the U.S. currency under challenge here does not deprive visually-impaired persons of meaningful access to currency-based transactions. The provision of currency is a governmental benefit provided equally to all persons. The plaintiffs seek a change or extension of that benefit, and contend that defendants' refusal to make the change has a disproportionate impact on the blind and visually-impaired. That is precisely the allegation in Alexander. This case does not, in contrast, involve any barrier or burden imposed by the government in the first instance. Here, there is no governmental quarantine of the plaintiffs' means of using currency, and no disciplinary proceedings instituted by the defendants — nor any comparable governmentally-imposed barrier or burden.
Finally, if the existing currency scheme were held to deprive the blind and visuallyimpaired of "meaningful access" to currency-based transactions, the rationale for the ruling would necessarily extend to a host of other materials and services provided by the federal government. For example, it could be argued that every type of printed material produced by the government — every handbook, manual, and application form — not currently provided in Braille or in some other accessible form deprives the blind and visually-impaired of "meaningful access" to the information contained therein. And, to be consistent, the courts would have to hold that the blind and visually-impaired are deprived of meaningful access to the use of food stamps, which, like currency, are provided in different denominations. The Rehabilitation Act simply was not intended to mandate such fundamental, far-reaching changes in the provision of universal government services.
5(...continued) 291 (quoting Alexander earlier, regarding the relevance of federal agency regulations on the meaning of "otherwise qualified").
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III. Plaintiffs Have Not Exhausted the Administrative Procedures Prerequisite to Seeking Judicial Relief Even if the government's design and production of currency were subject to the
Rehabilitation Act, and even if plaintiffs were held to have stated a cognizable claim, plaintiffs' complaint would have to be dismissed because they have not sought administrative relief beforehand. Where a statute does not expressly require exhausting administrative procedures before filing suit against a federal agency, the court may impose an exhaustion requirement as a matter of "judicial discretion."6 See Darby v. Cisneros, 509 U.S. 137, 144 (1993). Requiring exhaustion gives the agency "an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision"; it also "allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review." See Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990) (citing McKart v. United States, 395 U.S. 185, 194 (1969)); see also Leonard v. McKenzie, 869 F.2d 1558, 1563 (D.C. Cir. 1989) ("Two concerns, among others, informing the exhaustion doctrine are fairness to the agency and the orderliness of administrative practice and procedure . . . ."). Thus, in this Circuit, "[e]xhaustion of administrative remedies is generally required." Oglesby, 920 F.2d at 61.
This rule has been applied in several cases involving challenges to federal agency action under the Rehabilitation Act. In Poynter v. United States, for example, plaintiffs asserted that the Rehabilitation Act required the United States Postal Service to make a certain post office accessible by wheelchair. 55 F. Supp. 2d 558 (W.D. La. 1999). Defendant asserted that the claim
6 Exhaustion is statutorily required for actions under section 501 of the Rehabilitation Act (federal "[e]mployment of individuals with disabilities"), but not for actions under section 504 ("[n]ondiscrimination under Federal grants and programs"). 29 U.S.C. §§ 791, 794, 794a; see also 42 U.S.C. § 2000e-16(c).
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should be dismissed for failure to exhaust administrative remedies, and the court agreed. Id. at 562-64. The court found support for this conclusion in "[p]rudential concerns of promoting judicial efficiency and respect for administrative agency authority." Id. at 563. "[E]xhaustion of administrative remedies under the Rehabilitation Act," the court pointed out, "conserv[es] scarce judicial resources and giv[es] the administrative agency a chance to discover and correct its own errors." Id. Similarly, the court in Isle Royale Boaters Association v. Norton held that administrative remedies must be exhausted before claiming that the National Park Service's plan for managing a certain facility violates the Rehabilitation Act. 154 F. Supp. 2d 1098, 1134 (W.D. Mich. 2001).
In relation to this case, the Secretary of the Treasury's regulations for implementing the Rehabilitation Act provide an administrative procedure for resolving alleged violations of the Act. 31 C.F.R. §§ 17.101, 17.170. The regulations provide that "[a]ny person who believes that he or she has been subjected to discrimination prohibited by [the Act] may . . . file a complaint" with the Department of the Treasury. Id. § 17.170(d)(1). The regulations also make specific provision for class-wide complaints: "Any person who believes that any specific class of persons has been subjected to discrimination prohibited by [the Act] and who is a member of that class or the authorized representative of a member of that class may file a complaint." Id.7
"The agency shall accept and investigate all complete complaints over which it has jurisdiction." Id. § 17.170(d)(2). "Agency employees are required to cooperate in the investigation and attempted resolution of complaints." Id. § 17.170(g)(2). The Department must notify
7 "[C]omplaints must be filed within 180 days of the alleged act of discrimination," but "[t]he agency may extend this time period for good cause." 31 C.F.R. § 17.170(d)(3).
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the complainant of the results of its investigation within 180 days, unless the Assistant Secretary for Departmental Finance and Management finds good cause to extend that period. Id. § 17.170(g)(1), (k). The regulations also provide for an appeal, resulting in a "final agency decision which may include appropriate corrective action to be taken by the agency." Id. § 17.170(h), (i). The agency must notify the complainant of the results of the appeal within 30 days, unless good cause is found to extend that period. Id. § 17.170(j), (k).
Under the judicial precedent cited above, plaintiffs in this case should be required to exhaust these administrative procedures before making the present claims in court. The chief rationales for judicially-imposed exhaustion — allowing the agency "an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision," Oglesby, 920 F.2d at 61 — are especially applicable here, given that the subject matter of the complaint is uniquely within the expertise of the agency. Indeed, an administrative complaint in this matter might have resulted in a "factual record" that would have prevented the evidentiary deficiency cited by the Court in denying defendants' initial motion for summary judgment. Id. "[F]airness to the agency and the orderliness of administrative practice and procedure" are also particularly relevant considerations here, given that the relief sought would have enormous fiscal and policy ramifications. Leonard, 869 F.2d at 1563. In short, this is a particularly appropriate case in which to apply the rule that "[e]xhaustion of administrative remedies is generally required." Oglesby, 920 F.2d at 61.
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IV. Two of Plaintiffs' Prayers for Relief Must Be Dismissed If this entire case were not dismissed on any of the three grounds stated above, two of
plaintiffs' prayers for relief would have to be dismissed for other reasons. See generally Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979) (upholding dismissal of certain prayers for relief but not others). First, their request for an order requiring the inclusion of certain specific features in a redesign of the currency must be dismissed because the specifics of any redesign required by the Rehabilitation Act would be within the sole discretion of the Secretary of the Treasury. Second, plaintiffs' request for an order requiring a redesign of the one-dollar bill must be dismissed because Congress has expressly and specifically prohibited redesign of the onedollar bill.8
A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury
In their prayers for relief, plaintiffs seek not only "a permanent injunction prohibiting Defendants from continuing to manufacture banknotes in the present manner," but also —
a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral which is at
least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination. See Complaint at 16-17. In other words, plaintiffs ask the Court not only to enjoin continuing issuance of the currency as presently designed, but also to order the inclusion of certain specific
8 In the alternative to dismissal, defendants request that these prayers be stricken from the complaint. See Fed. R. Civ. P. 12(f).
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features in the new currency. To some extent, therefore, plaintiffs are asking the Court to participate in the redesign of the currency.
As plaintiffs acknowledge, however, the design of United States currency is, pursuant to the Federal Reserve Act, "solely within the discretion of the Secretary of the Treasury." Id. ¶ 22; 12 U.S.C. § 418 (Federal reserve notes "shall be in form and tenor as directed by the Secretary"). Moreover, as noted above, this discretion is needed to enable the Secretary to carry out his responsibility to "guard against counterfeits and fraudulent alterations." Id. Thus, assuming the existing United States currency were somehow found to violate the Rehabilitation Act, this Court could only enter declaratory judgment to that effect and enjoin the violation. The Court should not order the inclusion of any specific features in a redesign of the currency, and plaintiffs' prayer for relief to that effect must be dismissed.
B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill
Another of plaintiffs' prayers for relief seeks "a permanent injunction mandating that the $1 banknote be redesigned to incorporate new low vision features as mandated by Congress." See Complaint at 17. However, the current-year appropriations act for the Department of the Treasury provides that "[n]one of the funds appropriated [therein] or otherwise available to the Department of the Treasury or the Bureau of Engraving and Printing may be used to redesign the $1 Federal Reserve note." See Pub. L. No. 108-7, § 117, 117 Stat. 11, 439 (2003). Identical language has appeared in the three immediately preceding appropriations acts. See Pub. L. No. 107-67, § 117, 115 Stat. 514, 525 (2001); Pub. L. No. 106-554, § 117, 114 Stat. 2763 (2000); Pub. L. No. 106-58, § 117, 113 Stat. 430, 441 (1999). Therefore, even if the existing currency
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were found to violate the Rehabilitation Act as a general matter, this specific, recently-reenacted prohibition would easily override, in relation to the one-dollar bill, the more general antidiscrimination provisions of the Rehabilitation Act. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("[I]t is a commonplace of statutory construction that the specific governs the general."); Busic v. United States, 446 U.S. 398, 406 (1980) ("[A] more specific statute will be given precedence over a more general one, regardless of their temporal sequence.").
The plaintiffs not only fail to recognize that the prohibition in the current appropriations act forecloses redesigning the one-dollar bill; they also contend that a statement in a 1999 congressional committee report actually requires redesigning the one-dollar note. In that report, the conferees on an appropriations bill wrote that they were "concerned about the cost associated with producing special anti-counterfeiting properties for the estimated 6 billion circulating $1 Federal Reserve Notes," but that they "believe[d] it [was] important to update the currency, such as making minor modifications to assist the visually impaired." H.R. Conf. Rep. No. 105-789, at 76 (1998), reprinted in 144 Cong. Rec. H9870, H9890 (daily ed. Oct. 7, 1998). Thus, the conferees purported to "direct the Department of the Treasury and the Bureau of Engraving and Printing . . . to only make minor design enhancements to the $1 note for the visually impaired and elderly population, provided it has no effect on the use of $1 Federal Reserve Notes with existing bill accepting machinery." Id.
This statement cannot, however, be read as requiring the redesign that plaintiffs seek. First, a statement in a committee report is not legislation; such a statement cannot, itself, establish a legal mandate. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ("indicia in committee
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reports and other legislative history as to how . . . funds should or are expected to be spent do not establish any legal requirements on the agency") (internal quotation marks omitted); American Hospital Ass'n v. NLRB, 499 U.S. 606, 616 (1991) (statements in committee reports do not have "the force of law"). Second, the bill to which this conference report relates (which did not, in any event, become law) contains no language regarding a redesign of the currency. See H.R. Conf. Rep. No. 105-789, at 1-62 (setting forth text of H.R. 4104), reprinted in 144 Cong. Rec. at H9871-H9886. Moreover, no legislative enactment during that fiscal year, or since, has required any redesign of currency for the visually-impaired. See Pub. L. No. 105-277, 112 Stat. 2681 (1998) (FY 1999 appropriations act). Third, even if the bill to which the above-quoted conference report relates had required the Secretary of the Treasury to redesign the one-dollar bill for the visually-impaired, it would have been overridden by the current appropriations act, which forbids any redesign regardless of its purpose. See Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (one appropriations act "superseded" by next act). Fourth and finally, even if a prior appropriations act were not overridden by the current act, the 1999 act could not require a redesign of the one-dollar bill now, because an appropriations act expires at the end of the fiscal year to which it relates. See Massachusetts v. Nuclear Regulatory Comm'n, 924 F.2d 311, 324 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991). V. The Treasurer of the United States Should Be Dismissed
as a Defendant In addition to the Secretary of the Treasury, who is responsible for the design and production of United States currency, the plaintiffs have named as a defendant the Treasurer of the United States. The Treasurer is basically the government's cashier, serving as the custodian
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of funds received and held in the United States Treasury. See, e.g., 2 U.S.C. § 158; 12 U.S.C. §§ 1439a, 1712, 1755(d); 16 U.S.C. § 3172(b); 28 U.S.C. § 2041; 33 U.S.C. § 944(a); 40 U.S.C. § 174j-4. The Treasurer is not, however, involved in the design or production of currency. See 12 U.S.C. § 418; 31 U.S.C. § 5114.9 In any event, an order solely against the Secretary would provide the relief sought by the plaintiffs — assuming such relief can be afforded under the Rehabilitation Act at all. Therefore, the Treasurer of the United States should be dismissed as a defendant.
CONCLUSION Accordingly, this action should be dismissed with prejudice in its entirety. If this entire action is not dismissed or disposed of on summary judgment, the Court should (1) dismiss the prayer for relief in which plaintiffs seek the inclusion of specific features in a redesign of the currency; (2) dismiss the prayer for relief in which plaintiffs seek a redesign of the one-dollar bill; and (3) dismiss the Treasurer of the United States as a defendant herein. Dated: May 28, 2003
Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
9 The administrative reporting scheme alleged in paragraph 15 of the Complaint is no longer in effect. See 67 Fed. Reg. 44,261 (July 1, 2002).
22

Case 1:02-cv-00864-JR Document 15 Filed 05/28/2003 Page 27 of 27
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel Attorneys, Department of Justice Civil Division, Room 7122 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS
23

 
 Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN COUNCIL OF THE BLIND et.al., )

Plaintiffs,

)

) CIVIL ACTION NO.

v.

) 1:02CV00864 JR

)

PAUL H. O'NEILL Secretary of the Treasury, et.al.,)

Defendants.

)

__________________________________________)

________________________________________________________________________

MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Dated: August 12, 2003

Jeffrey A. Lovitky D.C. Bar No. 404834 1735 New York Ave., NW, Ste. 700 Washington, DC 20006 (202) 429-3393 Attorney for Plaintiffs American Council of the Blind, et. al.

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 2 of 13
TABLE OF CONTENTS
I. THE DESIGN OF PAPER CURRENCY IS NOT COMMITTED TO THE SOLE DISCRETION OF THE DEFENDANT……………….………...1
II. PLAINTIFF’S LACK OF MEANINGFUL ACCESS TO PAPER CURRENCY TRANSACTIONS CONSTITUTES DISCRIMINATION UNDER THE REHABILITATION ACT................................................................4
III. EXHAUSTION OF ADMINISTRATIVE REMEDIES IS NOT REQUIRED………………………………………………………………6 A. No Requirement Exists For Exhaustion of Administrative Remedies under Section 504……….……………….…………………6 B. The Administrative Remedy Is Inadequate, Even If Exhaustion Is Otherwise Required………………………………….7
IV. DEFENDANT MAY REDESIGN THE $1.00 BILL……………………………..8 V. REDESIGN IS NOT SOLELY WITHIN THE
DISCRETION OF THE SECRETARY………………………………………….10 CONCLUSION…………………………………………………………………………..11

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 3 of 13
Pursuant to the schedule established by the Court, Plaintiff submits this memorandum in opposition to the Defendant’s Motion to Dismiss. For the reasons stated below, Plaintiff asserts that Defendant’s Motion to Dismiss should be denied. I. THE DESIGN OF PAPER CURRENCY IS NOT COMMITTED TO THE
SOLE DISCRETION OF THE DEFENDANT Defendant again asserts that the design of paper currency is committed to the sole discretion of the Secretary. Def. Mem. at pp 3-12. This is the identical argument already raised by Defendant in its prior Motion for Summary Judgment dated August 29, 2002, and denied by the Court in its Memorandum Order dated April 1, 2003. Once again, Defendant relies upon 12 U.S.C §418 in support of the proposition that the Secretary has unfettered discretion with respect to the design of paper currency. However, Section 504 of the Rehabilitation Act by its terms applies to all the operations of each executive agency. Thus, the statute states that “No otherwise qualified individual with a disability in the United States, as defined in section 7(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” (b) "Program or activity" defined. For the purposes of this section, the term "program or activity" means all of the operations of-- (1) (A) a department, agency, special purpose district, or other instrumentality of a State or of a local government;…. (Emphasis added). See 29 U.S.C. § 794.
There can be no doubt that the statute applies to the design of paper currency, and all other operations and activities of the Department of the Treasury. Had Congress intended any exemptions, it would have written them into the statute.
1

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Moreover, the Secretary’s regulations implementing the Act, states as follows: “This part applies to all programs or activities conducted by the agency, except for programs or activities conducted outside the United States that do not involve individuals with handicaps in the United States.” (Emphasis added). See 31 CFR §17.102. If the Secretary truly believed that the form of paper currency was exempt from the strictures of the Rehabilitation Act, this conclusion would presumably have been reflected the regulations. The fact that the regulations do not provide for any exemptions, except with respect to activities performed overseas, is persuasive as to the Secretary’s intent to cover all of the functions of the Department.
As such, the position now being taken by the Defendant is inconsistent with the Department’s regulations. Such a position on the part of the Defendant is simply untenable. See Alexander v. Choate, 469 U.S. 287, 304, n. 24 (1985) (regulations implementing Section 504 constitute an important source of guidance).
Moreover, the Defendant’s argument would essentially preclude any judicial review in connection with the design of paper currency. This argument runs contrary to the general proposition that, absent a clear Congressional mandate, federal courts have authority to conduct judicial review of agency action.
Plaintiff believes that the Supreme Court’s decision in Traynor v. Turnage, 485 U.S. 535, 99 L. Ed. 2d 618, 108 S. Ct. 1372 (1988), compels rejection of Defendant’s argument. In Traynor, the Supreme Court was asked to rule whether a regulation promulgated by the Department of Veteran’s affairs constituted a violation of the Rehabilitation Act. The regulation provided that disability benefits would not be paid for alcoholism. The government’s contention was that judicial review was precluded by 38 U.
2

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 5 of 13
S. C. § 211(a), which bars judicial review of "the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans."
The Supreme Court noted a “strong presumption that Congress intends judicial review of administrative action,” which presumption may be overcome only upon a showing of “clear and convincing evidence of a contrary legislative intent", citing to Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), and Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). Id. at 542. The Court held that review of the agency’s action was not precluded.
If in Traynor v. Turnage, supra, the Supreme Court held that judicial review was not barred, a fortiori the same result should apply in the instant case. Unlike Traynor, there is no statute in the instant case which goes nearly as far in arguably precluding judicial review. Indeed, the statute upon which the Defendant now relies, 12 U.S.C §418, is silent on the subject of judicial review under Section 504. Based upon the precedent in Traynor v. Turnage, supra, there is simply no basis for holding that judicial review of the Secretary’s decisions concerning design of paper currency is precluded.
Defendant’s argument that judicial review is precluded by 12 U.S.C §418 relies heavily upon the proposition that "a more specific statute will be given precedence over a more general one…” See Def. Mem. at pp 9-12. Plaintiff does not argue with this proposition as a general matter. However, Plaintiff fails to see the relevance of Defendant’s argument to the instant case.
Contrary to Defendant's belief, there is simply no conflict between the requirements of Section 504 and 12 U.S.C §418. Nor are the cases cited by Defendant relevant on this
3

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 6 of 13
point. The cases cited by Defendant all involve situations in which the courts have attempted to resolve conflicts between two or more separate statutes. These cases are inapposite because, as noted above, no conflict exists between 12 U.S.C §418 and Section 504.
II. PLAINTIFF’S LACK OF MEANINGFUL ACCESS TO PAPER CURRENCY TRANSACTIONS CONSTITUTES DISCRIMINATION UNDER THE REHABILITATION ACT As in its Motion for Summary Judgment, Defendant cites to Alexander v. Choate,
469 U.S. 287 (1985), for the proposition that Plaintiff’s have the right to only “meaningful access” to currency transactions. See Def. Mem. at pp 14-17. Defendant asserts that Plaintiff’s are seeking “optimal access” to paper currency, which they are not entitled to under the ruling in Alexander v. Choate, supra.
However, Defendant’s reliance upon Alexander v. Choate is misplaced. This is not a question of Plaintiff seeking optimal access to U.S. currency. Rather, under any construction of the term, Plaintiff’s do not even have “meaningful access” to paper currency.
For example, Plaintiff Otis Stephens must rely upon a sighted individual to inform him as to the denomination of a particular banknote. See Complaint, Paragraph 12. Similarly, Plaintiff Patrick Sheehan is able to distinguish between banknotes of varying denominations only in the very best of lighting conditions. See Complaint, Paragraph 13. Under these circumstances, Plaintiff’s access to U.S. currency can hardly be said to be meaningful.
Additionally, the fact that Plaintiffs must rely on sighted individuals to advise them of the banknote denomination leads to a very real possibility of fraud. This is not a mere
4

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 7 of 13
hypothetical occurrence. Rather, it is experienced regularly by persons with visual disabilities, including the Plaintiffs in this litigation.
Defendant’s argument that Plaintiff has meaningful access by folding bills in varying lengths depending upon denomination is without merit. The folding system is only useful after Plaintiff knows the denomination of the banknote. The key point is that Plaintiff must rely upon sighted individuals to advise him as to what the denomination is so that he can then fold the bill in the appropriate manner. Similarly, electronic devices currently on the market are of extremely limited use in assisting Plaintiffs in identifying banknote denomination. See Complaint, at Para. 33.
Finally, Defendant distinguishes between government imposed burdens and government provided benefits in applying the Rehabilitation Act. “Although a government should be able to control the nature and quantity of the benefits that it provides, government-imposed barriers or burdens should, in most circumstances, have an equal effect on the disabled and the non-disabled.” See Def. Mem. p.13.
Defendant’s view of the significance of the “benefit” versus “burden” distinction is somewhat unclear. On the one hand, the government refuses to assert that production of currency is not a “program or activity” to which the Rehabilitation Act applies.1 Therefore, the government would apparently agree that the meaningful access requirements spelled out in Alexander v. Choate apply to the production of paper currency, regardless of whether the latter activity is classified as a burden or a benefit. 1 In its Memorandum order, the Court invited Defendant to address the issue of whether Section 504 applies to the design and production of currency in the first place. However, Defendants have chosen not to seek dismissal on this basis, “given uncertainties regarding the law on that subject and the potential ramifications, in other contexts, of making an argument to the contrary.” See Def. Mem, p. 9, Footnote 3.
5

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 8 of 13
In any event, Plaintiff is unaware of any cases supporting the novel interpretation that the Rehabilitation Act is applied differently depending upon whether the activity involves a “burden” or a “benefit.” The Rehabilitation Act itself makes no distinctions between “burdens” and “benefits.” Moreover, the issuance of US currency is neither a “burden” nor a “benefit.” It is simply a government program to which the meaningful access must be afforded under the Rehabilitation Act. See Alexander v. Choate, supra. III. EXHAUSTION OF ADMINISTRATIVE REMEDIES IS NOT REQUIRED
A. No Requirement Exists For Exhaustion Of Administrative Remedies Under Section 504
Plaintiff is suing under Section 504 of the Rehabilitation Act, 29 U.S.C §794. Section 504 specifically incorporates the procedures set forth in Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq). See 29 U.S.C §794a. There is no exhaustion requirement under Title VI. Jeremy H. v. Mount Lebanon School Dist., 95 F.3d 272, 281 (3rd Cir. 1996). Applying Title VI procedures, the Courts have consistently held that actions under Section 504 do not require exhaustion of administrative remedies. See Freed v. Consolidated Rail Corporation, 201 F.3d 188 (3rd Cir 2000), and cases cited therein. Indeed, Defendant conceded in its brief that exhaustion is not statutorily required in cases brought under Section 504, unlike Section 501 claims. See Def. Mem. at pp. 15, Fn. 6.
The government asserts that exhaustion should be required for prudential reasons. However, this argument is not meritorious, particularly given that the statute expressly does not require exhaustion with respect to claims brought under Section 504.
6

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 9 of 13
Defendant cites to only two district court decisions supporting the notion that exhaustion should be required as a prudential matter. However, both of these decisions incorrectly apply federal appellate court precedent interpreting Section 504.
In Poynter v. United States, 55 F. Supp. 2d 558 (W.D. La. 1999), the district court incorrectly relied upon Prewitt v. United States, 662 F.2d 292 (5th Cir. 1981), in support of its holding that exhaustion should be required. Prewitt was a federal employment case, and as such, exhaustion is required regardless of whether the Plaintiff proceeds under Section 501 or Section 504.2 Similarly, in Isle Royale Boaters Association v. Norton, 154 F. Supp. 2d 1098, (W.D. Mich 2001), the district court relied upon Mickulicz v. Garthwaite, 2000 U.S. App. Lexis 22248 (6th Cir. August 22, 2000). Again, Mickulicz applied the exhaustion requirement in the employment context, and as such, in not applicable to the instant case.
B. The Administrative Remedy Is Inadequate, Even If Exhaustion Is Otherwise Required.
A generally recognized exception to the exhaustion requirement exists when it would be futile to raise arguments before the agency. See Chadmoore Communs. v. FCC, 113 F.3d 235, 239 (D.C. Cir. 1997). In Randolph-Sheppard Vendors of America v. Weinberger, 795 F.2d 90 (D.C. Cir. 1986), the Court extensively analyzed the case law of this Circuit in applying the futility exception. Id. at 104. The court held that this exception applies when denial of the requested relief by the administrative agency is a virtual certainty, citing to Daedalus Enterprises, Inc. v. Baldrige, 563 F. Supp. 1345, 1350
2 Generally, the courts have held that exhaustion is required in employment discrimination cases, regardless of whether these actions are brought under Section 501 or Section 504. See Spence v. Straw 54 F.3d 196, 199 (3rd Cir. 1995).
7

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 10 of 13
(D.D.C. 1983) ("When the agency has already made it abundantly obvious that it would not correct the error and would not conform its actions with the strictures of [the applicable statute], it would be meaningless to compel the hapless plaintiff to pursue further administrative remedies simply for form's sake.").
In the present case, denial of the requested relief is not a mere probability, it is an absolute certainty. Defendant states that the changes sought by Plaintiff would result in an additional cost of $245-$300 million, and an increase in annual production cost of $143$174 million. See Ferguson Declaration, Para 65. According to Defendant, additional “expenditures by the private sector to accommodate these changes would rival — and may even exceed — the expenditures incurred by the government in making the changes.” See Def. Mem. in support of Motion for Summary Judgment, p. 10. Defendant further asserts that the redesigns sought by Plaintiff would impose “undue financial and administrative burdens.” Id. at p. 5. Based upon the above, “the Bureau of Engraving and Printing has determined not to recommend, to the Secretary of the Treasury, the currency redesign requested by the plaintiffs. “ Id. at p. 10.
In any event, Defendant’s argument that Plaintiff should exhaust its administrative remedies under the Rehabilitation Act is undermined by its assertion in this case that the form of paper currency is not subject to the Rehabilitation Act. See Def. Mem. in support of Motion to Dismiss, pp. 3-8. Therefore, by the government’s own admission, there is no administrative remedy to pursue. The regulations implementing the Rehabilitation Act cannot by their very definition have broader coverage than the Act itself. As such, if as Defendant states the Act does not cover the design of paper currency, than neither can the regulations implementing the Act provide any meaningful administrative remedy.
8

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 11 of 13
In sum, the government is trying to force Plaintiff to pursue an administrative
remedy which would be an utterly futile exercise with a predetermined result. Such a
remedy should not be imposed upon Plaintiff.
IV. DEFENDANT MAY REDESIGN THE $1.00 BILL
Defendant once again argues that Congress has prohibited any re-design of the
$1.00 bill. The identical argument was raised previously by Defendant in its Motion for
Summary Judgment, and has already been addressed in Plaintiff’s Reply dated October 31,
2002.
In fact, Plaintiff contends that the Congressional purpose was exactly the opposite.
Conference Report on H.R. 4104, Treasury and General Government Appropriations Act,
1999, states as follows:
The conferees remain concerned about the cost associated with producing special anti-counterfeiting properties for the estimated 6 billion circulating $1 Federal Reserve Notes. As a result, the conferees do not believe the Bureau of Engraving and Printing should undertake cost prohibitive anti-counterfeiting changes to the $1 note. However, the conferees do believe it is important to update the currency, such as making minor modifications to assist the visually impaired. Therefore, the conferees direct the Department of the Treasury and the Bureau of Engraving and Printing not to pursue redesign of the $1 Federal Reserve Note to combat international counterfeiting threats, but to only make minor design enhancements to the $1 note for the visually impaired and elderly population, provided it has no effect on the use of $1 Federal Reserve Notes with existing bill accepting machinery.
See Conference Report on H.R. 4104, Treasury and General Government Appropriations
Act, 1999, 144 Cong. Rec, H 9870, October 7, 1998. (Emphasis added).
The Conference Report evinces a Congressional intent that the $1.00 note not be re-
9

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 12 of 13
designed for anti-counterfeiting purposes. However, it is equally clear that Congress expressly desired the Treasury to make changes to the $1.00 note for the purposes of assisting persons with visual disabilities.
The Conference Report language further undermines any notion that the Secretary need not consider the interests of the visually disabled community in designing paper currency. Rather, the Conference Report makes clear that the Secretary is obligated to consider the needs of disabled individuals in the design of U.S. bank notes.
V. REDESIGN IS NOT SOLELY WITHIN THE DISCRETION OF THE SECRETARY Finally, Defendant argues that the specifics of any currency redesign are within the
sole decision of the Secretary. The identical argument was raised previously by Defendant in its Motion for Summary Judgment.
Defendant apparently believes that this Court should have no role in either participating in any redesign decisions, or in ordering the inclusion of any specific design features
Defendant’s argument lacks merit. Assuming this Court possesses authority to review the design of currency under the Rehabilitation Act, this Court necessarily also has authority to evaluate the specifics of any redesign in determining whether the Secretary’s actions are in compliance with the Act, and to grant such relief as may otherwise be required.
Moreover, Plaintiff does not in this litigation seek the imposition of one fixed design for all paper currency. Rather, Plaintiff seeks declaratory and injunctive relief requiring that the Secretary comply with Section 504 in the redesign process, and that the
10

Case 1:02-cv-00864-JR Document 17 Filed 08/12/2003 Page 13 of 13
Court further review the Secretary’s actions to determine whether he has complied with the mandate of the Act. In any event, it is beyond doubt that this Court has jurisdiction to order such appropriate relief as may be required for the purpose of ensuring that there are no further violations of the Rehabilitation Act.

CONCLUSION For the reasons stated above, Defendant’s Motion to Dismiss should be denied

DATED: August 12, 2003

Respectfully submitted,
/s JEFFREY A. LOVITKY D.C. Bar No. 404834 Law Office of Jeffrey A. Lovitky 1735 New York Ave., NW, Ste. 700 Washington, DC 20006 (202)429-3393 Attorney for Plaintiff

11

 
 Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,
Plaintiffs,
v.
JOHN W. SNOW, Secretary of the Treasury, et al.,
Defendants.

: : : : : : Civil Action No. 02-0864 (JR) : : : : :

MEMORANDUM Plaintiffs, blind and visually impaired individuals and the American Council for the Blind, an organization that advocates for the blind and visually impaired, allege in this suit that the Department of Treasury’s failure to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs seek a declaratory judgment and an order requiring the defendants to implement specific design changes to the currency. I denied an early defense motion for summary judgment because the record lacked factual development. Defendants now move to dismiss, on the grounds: (1) that the design of U.S. currency is entrusted by statute to the discretion of the Department of the Treasury and not subject to the Rehabilitation Act; (2) that existing currency does not discriminate against the visually impaired; and (3) that plaintiffs’ have not exhausted their administrative remedies. In the alternative, defendants argue (a) that the agency should

Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 2 of 11

retain discretion over any redesign of the currency; (b) that redesign of the one-dollar bill is expressly prohibited by Congress; and (c) that the Treasurer of the United States should be dismissed as a defendant.

Analysis

1.

The Secretary’s discretion does not preclude

application of the Rehabilitation Act.

Defendants assert that the Rehabilitation Act cannot be

applied to the design of U.S. currency because the form of the

currency is committed to the sole discretion of the Secretary of

the Treasury (the Secretary). The Federal Reserve Act provides:

In order to furnish suitable notes for circulation as Federal reserve notes, the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of such notes of the denominations of $1, $2, $5, $10, $20, $50, $100, $500, $1,000, $5,000, $10,000 as may be required to supply the Federal Reserve banks. Such notes shall be in form and tenor as directed by the Secretary of the Treasury under the provisions of this chapter and shall bear the distinctive numbers of the several Federal reserve banks through which they are issued.

12 U.S.C. § 418 (emphasis added). Defendants argue, essentially,

that this specific provision trumps the more general language of

Section 504 of the Rehabilitation Act, which provides that:

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Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 3 of 11
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794. To determine whether the specific provisions of the Federal Reserve Act preclude application of section 504, I must first determine whether the statutes are in conflict with one another. Edmunds v. United States, 520 U.S. 651, 659 (1997) (“Ordinarily, where a specific provision conflicts with a general one, the specific governs.”). The cases defendants offer to support their argument all involve specific provisions that actually conflict with more general statutes. See, e.g., Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982); Farmer v. Employment Sec. Comm’n of N.C., 4 F.3d 1274, 1284 (4th Cir. 1993); Knutzen v. Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343 (10th Cir. 1987). But, of course, there is no obvious conflict between the Secretary’s duty to design the currency “in the best manner to guard against counterfeits and fraudulent alterations” and his obligations under the Rehabilitation Act. In fact, plaintiffs advance a persuasive argument to the contrary. They suggest that creating bills in varying sizes would eliminate the
- 3 -

Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 4 of 11

counterfeiting practice of bleaching the ink off smaller

denomination bills and printing higher denomination markings onto

the currency paper. This, however, is a matter to be heard and

decided on the merits.

2.

Plaintiffs have stated a claim under the Rehabilitation

Act.

To state a claim under section 504, a plaintiff must

(1) be an individual with a disability (2) who is “otherwise

qualified” for participation in a program or activity (3) of an

Executive agency, and who is (4) “denied the benefits of” or

“subjected to discrimination under” that program or activity. 29

U.S.C. § 794. The Secretary’s motion, addressing only the fourth

element, asserts that the form of the existing currency neither

denies plaintiffs the benefit of currency-based transactions nor

subjects them to discrimination.

Whether the form of U.S. currency denies plaintiffs the

benefits of currency-based transactions or subjects them to

discrimination within the meaning of section 504 turns on whether

plaintiffs have been afforded “meaningful access” to currency-

based transactions.1 Alexander v. Choate, 469 U.S. 287, 301

(1985). When applying this standard, I must balance “the need to

give effect to the statutory objectives and the desire to keep

[section] 504 within manageable bounds.” Id. at 299. Although an

1

It is assumed for purposes of this motion that the

“program or activity” involved is indeed “currency-based

transactions,” as the Secretary has suggested.

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Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 5 of 11
agency must provide meaningful access to its programs, id. at 301, it is not required to fundamentally alter the nature of the programs in order to do so, Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979)(section 504 did not require nursing school to make major adjustments to program to accommodate prospective student with severe hearing impairment).
Defendants assert that the plaintiffs already benefit from “meaningful access” to currency-based transactions and that the “optimal access” or “specially-designed access” sought by plaintiffs is not mandated by the Rehabilitation Act. It is true that section 504 does not guarantee equal access:
Section 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance. The Act does not, however, guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed. Choate, 469 U.S. at 304. It is equally clear that the Rehabilitation Act was not meant to address certain types of claims. For example, section 504 is not a mandate that benefits be allocated equally among different groups of handicapped individuals. See Traynor v. Turnage, 485 U.S. 535, 549 (1988)(“There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons must be extended to all other categories of handicapped persons.”; Modderno v. King, 82 F.3d 1059, 1060-61 (D.C. Cir.
- 5 -

Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 6 of 11
1996) (federal agency did not violate section 504 when it provided employees with health insurance that afforded greater benefits to those with physical illnesses than those with mental illnesses). Similarly, plaintiffs may not demand modifications that would plainly be at odds with the purpose of a program. See, e.g., Baker v. N.Y. Dep’t of Env’tl Conservation, 634 F. Supp. 1460 (N.D.N.Y. 1986) (plaintiffs’s request for special permission to use motorized vehicles to access wilderness areas of park would be “inimical to the nature of these areas” and would “destroy the very benefit sought by the plaintiffs.”). But, apart from these extremes, the “meaningful access” standard does not have precise boundaries, as the Supreme Court has acknowledged:
We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. Davis, 442 U.S. at 412. The complaint alleges that there are approximately 200,000 individuals in the United States who are blind and several million more who are visually impaired; that people who are blind are unable without assistance to identify banknote denominations; that people with low vision have difficulty with U.S. currency, especially under certain lighting conditions (e.g., in a taxi at night). Compl., at ¶¶ 23-32. Plaintiffs acknowledge that portable electronic devices do exist to assist
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Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 7 of 11
with banknote differentiation but maintains that they are expensive, relatively slow, and not always reliable. Compl., at ¶ 33. Here, assuming as I must the truth of plaintiff’s allegations and construing them in favor of the plaintiffs, I cannot conclude that "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of his claim which would entitle [them] to relief." Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). I am satisfied that plaintiffs have properly alleged that they are disproportionately burdened by the current form of the currency and that this burden may constitute denial of meaningful access. The inquiry beyond this point is necessarily fact-specific and demands an examination of the relative burdens of the handicapped and the entity administering the program. See, e.g., Crowder v. Kitagawa, 81 F.3d 1480, 1485-86 (9th Cir. 1996) (under Rehabilitation Act precedent “the determination of what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry”). Defendants do not assert, nor could they appropriately assert on a motion to dismiss, that redesign of the currency would impose undue financial or administrative burdens. The place for that argument would be a motion for summary judgment.
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Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 8 of 11

3.

Exhaustion of administrative remedies would be futile.

The question of whether exhaustion is required for a

claim brought under section 504 is a somewhat vexing one.

Plaintiff notes, correctly, that the plain language of the

statute does not require exhaustion,2 but defendants insist that

exhaustion should be required. There is some support for both

positions. The Third Circuit has recently found that “every

court of appeals to have addressed this question” has held that

plaintiffs suing private recipients of federal funds under

section 504 need not exhaust Title VI administrative remedies,

see Freed v. Consolidated Rail Corp., 201 F.3d 188, 192 (2000),

but that is because the only administrative remedy Title VI

2

The procedures applicable to claims brought under

section 504 are set forth in 29 U.S.C. § 794a(2), which provides:

The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.

Title VI, by its own terms, “includes an administrative procedure that can lead to the withdrawal of federal funding from programs or activities that discriminate on the basis of race, color, or national origin, but it does not require that plaintiffs exhaust the administrative process before bringing suit.” Freed, 201 F.3d at 191. (Notably, neither § 794a nor the remedial provisions of Title VI make any reference to the recent amendment to section 504 that extends the prohibition against discrimination to “any program or activity conducted by any Executive agency or by the United States Postal Service,” § 794.)

- 8 -

Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 9 of 11
offers is termination of federal funding to programs that violate
Title VI, with neither injunctive relief nor damages to aggrieved
individuals. Id. Defendants insist that exhaustion should
nevertheless be required in a suit like this one. The Fifth
Circuit has indeed read an exhaustion requirement into section
504 in a case brought against the U.S. Postal Services. Prewitt
v. United States, 662 F.2d 292, 304 (1981).
I need not decide whether exhaustion is required,
however, because, even if it were, exhaustion by these plaintiffs
would be futile. See Randolph-Sheppard Vendors of Am. v.
Weinberger, 795 F.2d 90, 105-106 (D.C. Cir. 1986).
The doctrine of exhaustion is intended, in part, to afford the administrative agency the first opportunity to correct any error. When the agency has already made it abundantly obvious that it would not correct the error and would not conform its actions with the strictures of [a statute], it would be meaningless to compel the hapless plaintiff to pursue further administrative remedies simply for form's sake.
Daedalus Enterprises, Inc. v. Baldrige, 563 F. Supp. 1345, 1350
(D.D.C. 1983). Defendants’ submission that the Rehabilitation
Act does not even apply to the printing of currency is tantamount
to an admission that “there is no administrative remedy to
pursue.” Rep., at 8. Moreover, the agency made its position on
the merits abundantly clear in its early motion for summary
judgment: that redesigning the currency to make it more
- 9 -

Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 10 of 11

accessible to the visually impaired would cost hundreds of

millions of dollars a year. See generally Ferguson Decl. (Def.

Mot. Sum. J., Ex. A). Further exhaustion by plaintiffs will not

be required in this case.

4.

Specific prayers for relief will not be dismissed or

stricken at this time.

Defendants ask that I dismiss, or strike, two of

plaintiffs’ specific prayers for relief: the inclusion of

certain specific features in a redesigned currency, and “a

permanent injunction mandating that the $1 banknote be redesigned

to incorporate new low vision features as mandated by Congress.”

Compl., at 17. I decline to do so, even though it does appear

unlikely that a specific injunction of any kind would be

appropriate given the extent of the Secretary’s discretion over

the design of the currency. It is true that redesign of the one-

dollar bill is precluded by the current-year appropriations act

for the Department of the Treasury, 117 Stat. 11, 439 (2003)

(“None of the funds appropriated... or otherwise available to the

Department of the Treasury or the Bureau of Engraving and

Printing may be used to redesign the $1 Federal Reserve note.”),

but there is no guarantee that a similar prohibition will be in

effect when a final ruling is issued in this case.

- 10 -

Case 1:02-cv-00864-JR Document 19 Filed 03/31/2004 Page 11 of 11

5.

The Treasurer of the United States will be dismissed as

a defendant.

Finally, defendants submit that the Treasurer of the

United States has no hand in the design or production of the

currency and therefore should be dismissed as a defendant from

this suit. Plaintiffs do not dispute the point. Under Local

Rule 7.1(b), the motion will be treated as conceded, and the

Treasurer will be dismissed as a defendant.

JAMES ROBERTSON United States District Judge

- 11 -

 
 Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

September 10, 2003

PETER D. KEISLER Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
HENRY A. AZAR, Jr., D.C. Bar 417249 W. SCOTT SIMPSON, Va. Bar 27487
Attorneys, Department of Justice Civil Division, Room 7122 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 2 of 14
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. The Form of United States Currency Is Within the Specific, Express Statutory Discretion of the Secretary and Thus Cannot Be Subject to the More General Provisions of the Rehabilitation Act . . . . . . . . . . . . 2
II. The Existing Currency Does Not Constitute "Discrimination" Against Visually-Impaired Persons . . . . . . . . . . . . . . . . . . . . . . 5
III. Plaintiffs Have Not Exhausted the Administrative Procedures Prerequisite to Seeking Judicial Relief . . . . . . . . . . . . . . . . . . . . . . . . 7
IV. Two of Plaintiffs' Prayers for Relief Must Be Dismissed . . . . . . . . . . . . . . . . . . . 9 A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury . . . . . . . . . . . . . . . . . 9 B. Congress Has Specifically and Expressly Prohibited Any Redesign of the One-Dollar Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
V. The Treasurer of the United States Should Be Dismissed as a Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 3 of 14
INTRODUCTION Designing our national currency involves security considerations that are crucial to the national economy, and Congress has entrusted this function exclusively to the Secretary of the Treasury. Nevertheless, plaintiffs assert that the Rehabilitation Act of 1973 requires the United States to redesign its currency so that persons who are visually impaired can more easily distinguish among the denominations. The general provisions of the Rehabilitation Act cannot, however, override Congress's specific, express conferral of discretion upon the Secretary in making these technical design decisions in which security must be the paramount consideration. Even if these security concerns, embodied in Congress's specific conferral of discretionary authority upon the Secretary, were not paramount, the Rehabilitation Act would not require redesigning the currency. Visually impaired persons have "meaningful access" to the use of the existing currency — they do, in fact, use it — which is all that the Act requires. See Alexander v. Choate, 469 U.S. 287, 302 (1985). The United States need not ensure that visually impaired persons can use the currency just as conveniently or cheaply as all other persons. In any event, this action should also be dismissed because plaintiffs have failed to employ the administrative process for submitting claims under the Act to the Department of the Treasury. And finally, if this action were not, for some reason, dismissed in its entirety, two of plaintiffs' specific prayers for relief should be dismissed — that is, the request that the Court order a specific design for the currency and that the one-dollar bill be included in the redesign. Further, one of the defendants named in the Complaint — the Treasurer of the United States — should be dismissed as a party.

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 4 of 14
ARGUMENT I. The Form of United States Currency Is Within the Specific, Express
Statutory Discretion of the Secretary and Thus Cannot Be Subject to the More General Provisions of the Rehabilitation Act Very few specific powers of the federal government are more central and critical to the function of the federal system than the design and production of our national currency. The Constitution specifically gives Congress the power "[t]o coin Money [and] regulate the Value thereof," and the Supreme Court has held that Congress is authorized to establish a national currency. See U.S. Const. art. I, sec. 8; Legal Tender Cases, 79 U.S. (12 Wall.) 457, 544-47 (1871). The strength and stability of the national economy depend, to a considerable extent, on the security and ready acceptance of our currency. See Levin v. Dare, 203 B.R. 137, 142 (S.D. Ind. 1996) (value of U.S. currency is based, in part, on "the relative difficulty of counterfeiting the currency"). In keeping with these priorities, Congress has specifically entrusted the Secretary of the Treasury with designing and producing currency "in the best manner to guard against counterfeits and fraudulent alterations." 12 U.S.C. § 418. Thus, the form of the currency "shall be . . . as directed by the Secretary of the Treasury." Id. These commands are expressly and specifically directed at one very discrete (and very crucial) governmental function, whereas the antidiscrimination provisions of the Rehabilitation Act apply very generally to a wide array of governmental conduct. If, as plaintiffs contend, the existing design of the U.S. currency violates the Rehabilitation Act, then the general anti-discrimination provisions of that Act are in conflict with Congress's more specific, express command regarding the design and production of
2

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 5 of 14
currency. Contra Memorandum in Opposition to Defendant's [sic] Motion to Dismiss 3-4 [hereinafter Pls' Opp.].
If the Secretary's discretion in this regard were subject to the Rehabilitation Act, then the "form and tenor" of the currency would be "as directed" by the courts and not as directed by the Secretary. But see 12 U.S.C. § 418. Moreover, the paramount consideration in the design of currency, as mandated by Congress, is its security. Subjecting the design and production of the currency to the Rehabilitation Act would subjugate that specific congressional priority to the general anti-discrimination provisions of the Rehabilitation Act, thus potentially reducing the security of the currency.
Furthermore, applying the Rehabilitation Act to the design and production of currency would require the courts to decide issues regarding its security. For example, the courts would have to decide whether changes allegedly mandated by the Rehabilitation Act would cause an unacceptable reduction in the security of the currency.1 This would involve the courts in issues which are not only entrusted "solely" to the Secretary of the Treasury, but which are also not readily subject to judicial determination. See Complaint ¶ 22. Therefore, the two statutes are necessarily in conflict, and the general provisions of the Rehabilitation Act must yield to the more specific, express commands and purposes of Congress regarding the design and production of currency. See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("[I]t is a
1 These issues would be particularly numerous and difficult if, as plaintiffs urge, the courts were to determine and order the exact design of the currency rather than permitting the Secretary to determine an appropriate redesign after an adverse judgment regarding the existing currency's compliance with the Rehabilitation Act. See Complaint at 16-17.
3

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 6 of 14
commonplace of statutory construction that the specific governs the general."); Farmer v. Employment Security Commission, 4 F.3d 1274 (4th Cir. 1993).2
The Supreme Court's decision in Traynor v. Turnage, 485 U.S. 535 (1988), is not to the contrary. Contra Pls' Opp. at 2-3. The defendant in Traynor contended that judicial review of a regulation of the Veterans Administration was foreclosed by a statute barring judicial review of "the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans." 38 U.S.C. § 211(a). The Court rejected that contention. However, the decision was based, not on a determination that the statute was not sufficiently specific to override the Rehabilitation Act — the concept for which plaintiffs cite Traynor here — but on a finding that the language of the statute did not encompass the kind of agency action in question — that is, the promulgation of a regulation. See 485 U.S. at 541-45. Unlike the situation in Traynor, the more specific statute involved here — the Federal Reserve Act — undeniably applies to the design and production of currency; indeed, it is the statute that most directly and immediately governs that activity.
Finally, the Secretary's regulations implementing the Rehabilitation Act, 31 C.F.R. § 17.102, are also not to the contrary. Contra Pls' Opp. at 2. The language to which plaintiffs
2 Plaintiffs are incorrect in asserting that this argument was raised in defendants' motion for summary judgment and rejected by the Court's order denying that motion. See Pls' Opp. at 1. Defendants' motion for summary judgment described 12 U.S.C. § 418 and stated — as does plaintiffs' Complaint — that the design of currency is within the sole discretion of the Secretary. See Complaint ¶ 22. But that earlier motion did not assert, as defendants have now asserted in the present motion to dismiss, that § 418 overrides the anti-discrimination provisions of the Rehabilitation Act in this context. In any event, the Court's order regarding the summary judgment motion rested entirely on a finding that the record in this case was inadequate to determine whether the accommodations sought by plaintiffs would impose undue financial and administrative burdens. See Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979).
4

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 7 of 14
refer originated in prototype regulations prepared by the Department of Justice and distributed to
the various federal agencies; and there is no indication that the Department of the Treasury
considered every possible application of the regulation — or any particular application — before
its promulgation. See 56 Fed. Reg. 40,781, 40,782 (Aug. 16, 1991) (Treasury notice of final rulemaking).3 Thus, that language does not imply anything about the Secretary's "intent" in
relation to the applicability or non-applicability of the Rehabilitation Act to the design and
production of currency. Contra Pls' Opp. at 2. In any event, the regulations cannot override the
contrary import of the Federal Reserve Act.
II. The Existing Currency Does Not Constitute "Discrimination" Against Visually-Impaired Persons
Even assuming that the Federal Reserve Act does not override the Rehabilitation Act in
this special context, plaintiffs' claims should be dismissed because the existing currency does not
violate the Rehabilitation Act. Plaintiffs do not attempt to controvert the assertions, in
defendants' opening memorandum, that visually-impaired persons are not "excluded" from
participation in currency-based transactions, that they are not entirely "denied the benefits" of
3 Hence, the exact language to which plaintiffs refer in the Treasury regulations is found in the Rehabilitation Act regulations of numerous other federal agencies. Compare 31 C.F.R. § 17.102 with, e.g., 3 C.F.R. § 102.102 (Executive Office of the President); 5 C.F.R. § 1723.102 (OPM); 5 C.F.R. § 2416.102 (FLRA); 7 C.F.R. § 15e.102 (USDA); 14 C.F.R. § 1251.502 (NASA); 15 C.F.R. § 8c.2 (Department of Commerce); 24 C.F.R. § 9.102 (HUD); 32 C.F.R. § 1906.102 (CIA); 36 C.F.R. § 1208.102 (NARA); 38 C.F.R. § 15.102 (VA); 43 C.F.R. § 17.502 (Department of the Interior); 45 C.F.R. § 85.2 (HHS); 49 C.F.R. § 28.102 (Department of Transportation). Even the preamble to the Treasury regulations is nearly identical to the preambles of many other agency regulations. Compare 56 Fed. Reg. at 40,781 with 51 Fed. Reg. 4566 (Feb. 5, 1986) (various agencies), 52 Fed. Reg. 16,374 (May 5, 1987) (Architectural and Transportation Barriers Compliance Board), 52 Fed. Reg. 25,124 (July 2, 1987) (various agencies), 52 Fed. Reg. 45,619 (Dec. 1, 1987) (FTC), 52 Fed. Reg. 47,601 (Dec. 15, 1987) (Railroad Retirement Board).
5

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 8 of 14
using currency, and that the existing currency does not constitute intentional "discrimination" against the visually-impaired. See Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss at 9-10 (quoting 29 U.S.C. § 794(a)) [hereinafter Defs' Memo.]. Nor do they attempt to controvert the principle that the Rehabilitation Act prohibits unintentional discrimination only where persons with disabilities are unable to "benefit meaningfully" from the governmental program or activity in question. See Alexander v. Choate, 469 U.S. 287, 302 (1985). Therefore, whether the existing currency violates the Rehabilitation Act depends on whether visually-impaired persons can "benefit meaningfully" from the use of the currency.
Plaintiffs' own allegations demonstrate that they can. Nowhere do the plaintiffs allege that they — or other visually-impaired persons — do not use United States currency. Indeed, the Complaint alleges, and plaintiffs' opposition memorandum emphasizes, that a visually-impaired person may rely upon "a trusted sighted individual" to fold each denomination in a unique way or may use a portable electronic device to distinguish among denominations, and that some persons who are visually-impaired can themselves distinguish among the denominations in certain lighting conditions. See Complaint ¶¶ 12, 13, 33; Pls' Opp. at 4-5. Plaintiffs contend that visually-impaired persons are "regularly" deceived by sighted individuals who misrepresent the denominations of currency, see id. at 5; but the Complaint contains no such allegation, and alleges simply that one of the plaintiffs "generally relies upon the store cashier to identify the denomination of each banknote handed to him." See Complaint ¶ 12. Plaintiffs also allege that the portable electronic devices available for distinguishing among denominations "usually" cost "approximately $300" and are "relatively slow." Id. ¶ 33.
6

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 9 of 14
The Rehabilitation Act does not, however, require the government to produce currency that visually-impaired persons can use just as conveniently, cheaply, and securely as sighted persons. The Supreme Court in Alexander v. Choate rejected the concept that the government must provide benefits "tailored" to the needs of beneficiaries with handicaps. 469 U.S. at 303. The Rehabilitation Act, said the Court, "seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance. The Act does not, however, guarantee the handicapped equal results . . . ." Id. at 304 (citation omitted). As shown above, the visually impaired can and do participate in, and benefit from, the use of United States currency. The Secretary need not change the currency, in ways that would affect the lives of every American and of every person and entity that uses it throughout the world, in order to guarantee "equal results" in its use by those who are visually impaired.4 III. Plaintiffs Have Not Exhausted the Administrative
Procedures Prerequisite to Seeking Judicial Relief
Plaintiffs cannot seriously contend that prudential exhaustion is not required in nonemployment cases, like this one, under section 504 of the Rehabilitation Act.5 29 U.S.C. § 794.
4 Also in relation to the issue of "meaningful access," plaintiffs state that they are "unaware of any cases" supporting the distinction between governmental burdens and benefits described in defendants' opening memorandum. See Pls' Opp. at 5-6. That dichotomy, however, appears to be the determinative distinction between the Supreme Court's decision in Alexander and the appellate court decisions in Crowder v. Kitagawa and Randolph v. Rodgers, cited in defendants' memorandum. See Defs' Memo. at 12-13. Moreover, regardless of whether the issuance of currency could be called a "benefit," see Pls' Opp. at 6, it certainly differs materially from the governmental activities involved in Crowder and Randolph, where each of the defendants had imposed, upon the defendant's own initiative, a governmental barrier or burden.
5 Defendants' exhaustion argument is contingent upon a finding that the design and (continued...)
7

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 10 of 14
See Darby v. Cisneros, 509 U.S. 137, 144 (1993); Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990) ("Exhaustion of administrative remedies is generally required before filing suit in federal court . . ."). The court in Poynter v. United States, cited in defendants' opening memorandum, expressly based its analysis on prudential concerns rather than on statutorilymandated exhaustion. 55 F. Supp. 2d 558, 562-64 (W.D. La. 1999).6 The plaintiffs, moreover, have been unable to cite any applicable authority to the contrary.
Further, plaintiffs' contention that exhaustion in this matter would be futile ignores the purposes of the exhaustion doctrine. The principal rationales for judicially-imposed exhaustion — allowing the agency "an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision," Oglesby, 920 F.2d at 61 — are especially relevant here, given that the subject matter of the Complaint is uniquely within the expertise of the agency. Perhaps most importantly, an administrative complaint in this matter might have resulted in a "factual record" permitting the Court to determine, without discovery, that the changes sought by the plaintiffs would entail "undue financial and administrative burdens." Id.; Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979). "[F]airness to the agency and the orderliness of administrative practice and procedure" — also cited as reasons for
5(...continued) production of currency are subject to the Rehabilitation Act and that plaintiffs have otherwise stated a cognizable claim. See Defs' Memo. at 15. The exhaustion argument does not undermine defendants' contention that the Secretary's discretion regarding the design of the currency overrides the Rehabilitation Act in this regard, nor does the argument regarding the Secretary's discretion undermine the exhaustion argument. Contra Pls' Opp. at 8.
6 Although Poynter cited authority under section 501 in the course of reaching its conclusion, that fact does not undermine its persuasiveness as precedent regarding prudential exhaustion in section 504 cases. Contra Pls' Opp. at 7.
8

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 11 of 14
requiring exhaustion — are also particularly relevant here, given that the relief sought would have enormous fiscal and policy ramifications. See Leonard v. McKenzie, 869 F.2d 1558, 1563 (D.C. Cir. 1989).
In any event, plaintiffs' futility argument relies entirely on defendants' position in this litigation. Thus, any rationale for excusing plaintiffs' failure to pursue the administrative process would necessarily excuse exhaustion in every case where the plaintiff had purposefully bypassed such a process and the defendant later chose to defend on the merits. That, of course, is not the law. Plaintiffs' failure to exhaust warrants dismissal of this case. IV. Two of Plaintiffs' Prayers for Relief Must Be Dismissed
If this case were not, for some reason, dismissed in its entirety, plaintiffs' request for an order requiring the inclusion of certain specific features in a redesign of the currency would have to be dismissed because the specifics of any redesign would be within the sole discretion of the Secretary; and plaintiffs' request for an order requiring a redesign of the one-dollar bill would have to be dismissed because Congress has expressly and specifically prohibited redesign of the one-dollar bill.
A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury
Plaintiffs misread their own Complaint in asserting that they seek only "declaratory and injunctive relief requiring that the Secretary comply with Section 504 in the redesign process" and a review by the Court "to determine whether" the Secretary's intended redesign complies with the statute. See Pls' Opp. at 10-11. In reality, the Complaint seeks an order requiring
9

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 12 of 14
several very specific elements in a redesign of the currency. In their prayers for relief, plaintiffs request —
a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral which is at
least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination. See Complaint at 16-17. Granting this request would involve the Court intimately in the redesign process. If this relief were granted, the Court would have to consider and approve (or disapprove), among other things, the color of the ink to be used for the "single denomination numeral," the color of the background surrounding the numeral, the degree of contrast between the numeral and the background, the degree to which the denomination numerals were "raised," and the degree to which the length, height, and color of each denomination "varied" from the length, height, and color of every other denomination. All of these determinations would involve the Court in complex factual questions regarding the expense of producing the notes as redesigned by the Secretary, the expense and technical feasibility of any changes to that redesign that the Court may find necessary, and the durability of the resulting re-redesign. Thus, granting the relief requested would violate Congress's directive that — as plaintiffs have acknowledged — the design of
10

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 13 of 14
United States currency is "solely within the discretion of the Secretary of the Treasury." Id. ¶ 22; see 12 U.S.C. § 418.
B. Congress Has Specifically and Expressly Prohibited Any Redesign of the One-Dollar Bill
Despite undeniably clear and binding law to the contrary, plaintiff continues to insist that the one-dollar bill must be included in any redesign of the currency. The current-year appropriations act for the Department of the Treasury provides that "[n]one of the funds appropriated [therein] or otherwise available to the Department of the Treasury or the Bureau of Engraving and Printing may be used to redesign the $1 Federal Reserve note." See Pub. L. No. 108-7, § 117, 117 Stat 11, 439 (2003). Identical language has appeared in the three immediately preceding appropriations acts. See Pub. L. No. 107-67, § 117, 115 Stat. 514, 525 (2001); Pub. L. No. 106-554, § 117, 114 Stat. 2763 (2000); Pub. L. No. 106-58, § 117, 113 Stat. 430, 441 (1999). Therefore, regardless of any contrary language in a 1999 committee report — not enacted into law — the Secretary is prohibited from redesigning the one-dollar bill. Contra Pls' Opp. at 9-10. V. The Treasurer of the United States Should Be Dismissed
as a Defendant Plaintiffs have not responded to defendants' contention that the Treasurer of the United States is not a proper party in this action. Therefore, the Treasurer should be dismissed as a defendant, not only because she is not a proper defendant, but also because of plaintiffs' failure to respond. See Local Rule 7.1(b) (in absence of opposition, Court may treat motion as conceded).
CONCLUSION For the foregoing reasons, as well as those set forth in defendants' opening memorandum, this action should be dismissed with prejudice in its entirety.
11

Case 1:02-cv-00864-JR Document 18 Filed 09/10/2003 Page 14 of 14

Dated: September 10, 2003

Respectfully submitted,
PETER D. KEISLER Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
HENRY A. AZAR, Jr., D.C. Bar 417249 W. SCOTT SIMPSON, Va. Bar 27487
Attorneys, Department of Justice Civil Division, Room 7122 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

12

 
 Case 1:02-cv-00864-JR Document 71 Filed 11/28/06 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, :

et al.,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 02-0864 (JR)

:

Henry M. Paulson, Jr., Secretary :

of the Treasury

:

:

Defendant.

MEMORANDUM ORDER

American Council of the Blind is a national advocacy

group for the visually impaired. In this suit, the Council and a

number of blind and visually impaired individuals allege that the

Department of Treasury violates section 504 of the Rehabilitation

Act, 29 U.S.C. § 794, by its repeated and continuing failures to

design and issue paper currency that is readily distinguishable

to blind and visually impaired people. The Council’s amended

complaint seeks a declaratory judgment to that effect and an

order mandating the creation and implementation of a corrective

action plan. I denied earlier defense motions for summary

judgment [#8] and to dismiss [#15], 311 F. Supp. 2d. 86 (D.D.C.

2004). After a period of discovery, the Secretary has renewed

his motion to dismiss or for summary judgment [#33], and

plaintiffs have moved for summary judgment [#35].1

1The Secretary’s motion asks me to dismiss or strike two of the plaintiffs’ prayers for relief: the inclusion of specific features in a redesign of the currency, and a redesign of the $1 bill. Plaintiffs amended

Case 1:02-cv-00864-JR Document 71 Filed 11/28/06 Page 2 of 26
Background
Some 937,000 Americans are legally blind, meaning that the visual acuity of the better-seeing eye, when corrected, is no better than 20/200. An additional 2,361,000 Americans are considered “low vision” - the better-seeing eye, when corrected, is no better than 20/40. National Eye Institute Statistics, [#35-46, at 2]. Individuals with low vision are unable, among other things, to read the regular print on a newspaper. National Academy of Sciences, Currency Features for Visually Impaired People, [#35-5, at 14] (“NAS Study”).
Most people with low vision, and all blind people, are incapable of looking at American currency and distinguishing one denomination from another. In order to know whether the bill in her hand is worth five dollars or fifty, a blind person must ask someone else for help or use a machine that can identify the denomination and speak it out loud. Plaintiff Patrick Sheehan, who has no right eye vision and left eye vision of 20/450, is capable of distinguishing between banknotes in ideal lighting conditions. Usually, however, he identifies bills using a closed circuit television system that magnifies them. Plaintiff Otis Stephens is legally blind, as is Melanie Brunson, the Council’s
their complaint after the government’s motion and no longer seek such relief. Those aspects of the government’s motion are accordingly moot.
- 2 -

Case 1:02-cv-00864-JR Document 71 Filed 11/28/06 Page 3 of 26
Rule 30(b)(6) designee. They rely on sighted people to identify paper money for them.
Visually impaired Americans have developed a variety of methods for keeping track of the value of their paper money after their bills have been properly identified for them. Ms. Brunson folds her currency into different shapes: she keeps $1 bills straight; she folds $5 bills in half left-to-right, $10 bills in half top-to-bottom, and $20 bills in quarters. Dep. of Melanie Brunson, [#33-2, at 32]. Other blind individuals keep different denominations in separate parts or pockets of their wallets or purses.
There is no authoritative data on the frequency with which the visually impaired use paper money. Dr. Stephens estimates that, over a two-month period, he makes approximately 145 purchases, of which roughly half are made using paper currency. Dep. of Otis Stephens, [#33-3, at 107]. Mr. Sheehen uses currency with similar frequency. Dep. of Patrick Sheehen, [#33-4, at 96]. Ms. Brunson, however, makes purchases using currency only about ten times a month. Dep. of Melanie Brunson at 60. When they do make purchases, Dr. Stephens and Ms. Brunson usually select bills that they have folded and ask the cashier for verbal confirmation of the denomination before paying. When receiving change after a transaction, Dr. Stephens asks the cashier to verbally identify each bill, so that he can fold it
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properly. Dep. of Otis Stephens at 85. Similarly, Ms. Brunson asks cashiers to “separate the bills for me and give me the bills one at a time so that I can fold them.” Dep. of Melanie Brunson at 54.
Unable to identify the value of paper money without help from others, blind and low vision individuals are always at risk of being cheated. The frequency of such acts against blind and low vision individuals is impossible to measure, because victims may not know that they have been deceived unless someone tells them. Ms. Brunson, Dr. Stephens, and Mr. Sheehan could recall only a few instances when they learned that they had been defrauded.2 It is reasonable to assume, however, that deliberate fraud or accidental shortchanging may go unnoticed for some time, and that some instances may never be noticed. Currency in Other Countries
Of the more than 180 countries that issue paper currency,3 only the United States prints bills that are identical in size and color in all their denominations. NAS Study at 9, 101. More than 100 of the other issuers vary their bills in size
2For example, Ms. Brunson recalled one occasion in which a store clerk informed her she was being given a $20 bill. She later learned, when attempting to make another purchase, that this bill was actually worth only $5. Dep. of Melanie Brunson at 56-57.
3Not all issuers of currency are independent sovereign countries. For example, Northern Ireland, England, and Scotland all issue banknotes that are exchangeable throughout the United Kingdom. NAS Study at 104.
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according to denomination, and every other issuer includes at least some features that help the visually impaired. See generally, NAS Study at 101-12.
The Euro varies in size based on denomination: the greater the value of the note, the greater the length. The i5, i10, i20, i50, and i100 notes also vary in height. Euro Vision, Understanding Euro Notes and Coins, a Guide for People with Poor Vision, [#35-26, at 5]. Euros also possess tactile features: each bill includes a large, raised numeral designed to be perceptible to touch, at least when the banknotes are new, id. at 4, and a foil feature that can be identified by touch; the foil feature on the smaller notes – i5, i10, i20 – is of a different shape and in a different location than those on the larger ones. Id. at 6.
The Swiss Franc contains intaglio digits and a perforated numeral that can be identified by touch. Copy of Swiss Bank Note, [#35-41]. Japan, in a new design for the Yen, has incorporated a tactile feature in the ¥10,000, ¥5,000 and ¥1,000 notes, different for each note, that has a rougher texture than the rest of the bill. Security Features of the New Bank of Japan Notes, [#35-40].
The Canadian Dollar also contains tactile features. On the upper right corner on the face of each bill is a series of raised symbols separated by a smooth surface, which differ
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according to denomination. The $5 note has one raised symbol, the $10 note has two such symbols, and so forth. The Bank of Canada also provides (free to blind and low vision individuals) an electronic hand-held note reader. Bank of Canada, Accessibility Features, [#35-28].
Australia’s dollars differ in color and size. English Pound notes vary in color and size and contain tactile symbols. Chinese currency differs in color and possesses a tactile symbol, as does the currency in Argentina and Israel. Saudi Arabia’s currency varies in color and size. NAS Study at 106-112. U.S. Currency
The Secretary’s statutory responsibility for the design and production of U.S. currency, 12 U.S.C § 418, has been delegated to the Bureau of Engraving and Printing (BEP). The BEP is not financed by appropriations from Congress, but by a revolving fund that is replenished by the sale of its products currency and postage stamps - to other federal entities. In 2004, the BEP earned revenues of $525 million on the sale of 8.8 billion currency notes to the Federal Reserve and 6.1 billion postage stamps to the U.S. Postal Service. Bureau of Engraving and Printing, Chief Financial Officer Performance and Accountability Report (2004), [#35-42, at iii].
Most production of new currency is to replace worn out bills. Decl. of Thomas Ferguson, (August 28, 2002) [#8-2, at
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¶ 15]. The Federal Reserve withdraws tens of millions of bank notes from circulation each day: if a banknote is deemed unfit for recirculation, or if its denomination or authenticity cannot be verified, it is destroyed. The useful life of bills varies by denomination. The average life for the $1 bill is twenty-one months, whereas the $100 note lasts some eighty-nine months. Frequently Asked Questions, Federal Reserve Board, [#35-44]. Approximately half of all BEP production is of $1 bills. Dec. of Thomas Ferguson [#8-2, at ¶ 5].
On several occasions, the House of Representatives has expressed interest in changing U.S. currency to accommodate the visually impaired. Congressman Pete Stark introduced bills in 1979, 1981, and 1983 that would have required currency to be “printed in a manner which enables an individual who is blind to determine the denomination of each such note.” H.R. 6027, 96th Cong. (1979); H.R. 3656, 97th Cong. (1981); H.R. 2666, 98th Cong. (1983). In 1991, Congressman Joseph P. Kolter introduced a bill that would have required the Federal Reserve System to “develop a design for Federal Reserve notes in the denominations of $5, $10, $20, $50, and $100, and a method for producing such notes, that includes the designation of the denomination in braille on the face of the notes.” H.R. 2160, 102nd Cong. (1991). In 1997, finding that “electronic means of bill identification will always be more fallible than purely tactile means,” the House of
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Representatives “strongly encourage[d] the Secretary of the Treasury and the Bureau of Engraving and Printing to incorporate cost-effective, tactile features into the design changes, thereby including the blind and visually impaired community in independent currency usage.” H.R. Res. 122, 105th Cong. (1997).
In 1983, at the request of Congressman Edward R. Roybal, chairman of the House Select Committee on Aging, the BEP conducted a formal study of this issue. A Study of Mechanisms for the Denomination of Currency by the Blind or Visually Impaired, (Aug. 24, 1983), [#35-4] (“1983 Study”). That study found that “the most widely useful currency design change would be to produce [notes] in a different size for each denomination,” but that “the effects of such a change on broad and diverse segments of the population would be monumental.” Id. at 6.4 The study also found that “almost as broad a segment of the sight impaired population would benefit from use of an electronic device to audibly denominate bank notes as from sized currency,” and that given the greater cost of sizing currency, electronic currency readers should be developed to assist the visually impaired. Id. at 16.
Electronic note readers are available, but many models are considered slow, unreliable and expensive. NAS Study at 25.
4This finding of “monumental” effect, repeated verbatim at 17, is unquantified and unexplained.
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The government asserts that one such device, the Note Teller 2, is effective. The Note Teller 2 is approximately six inches long, three inches wide and one inch high, weighing approximately seven ounces. Decl. of Julia Wilson [#33-6, at ¶ 2]. Users insert bills into the machine and after approximately two seconds, a human voice, says either a number - “one,” “five,” ten,” etc., or “cannot read.” Id. at ¶ 4. The Note Teller 2 retails for $270. Id. at ¶ 8. In May 2004, the BEP solicited proposals for the development of a pocket-size currency reader that could be mass produced at a target retail price of $35 or less. In September 2004, BEP awarded $50,000 to Mnemonics, Inc. to develop these currency readers. Def.’s Resp. to Interrog. 13. Mnemonics has committed to begin marketing the device within three years after BEP accepts the prototype. A prototype was due from Mnemonics on September 30, 2005. Supp. Decl. of Thomas Ferguson, (Aug. 30, 2005) [#33-7, at ¶ 15]. The record does not reveal whether this prototype was delivered by the deadline or whether it has been accepted by the BEP.
In 1995, the National Academy of Sciences issued a comprehensive report entitled “Currency Features for Visually Impaired People.” One of the study’s findings was:
An important aspect of a person's full participation in today's society is being able to conveniently and confidentially exchange currency in everyday transactions, as when using public transportation or making purchases. U.S. citizens with low vision experience a uniquely difficult task in that U.S.
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banknotes are remarkably uniform in size, color, and general design. The banknotes provide no basis for denominating by blind persons. NAS Study at 1. The study recommended three features that could be incorporated into U.S. banknotes without significant further research: (1) changing the size of banknotes to correspond with denomination; (2) increasing the size and contrast of a banknote’s numerals; and (3) varying banknote color according to denomination. Id. at 4. The report further recommended that the BEP undertake “high priority” research to determine “optimum dimensions, optical contrast, location, colors, physical size” to implement these changes. Id. at 65. Major changes were made to U.S. currency in 1996 and 2004 – for the first time since 1929. Coming as they did after the House bills and the BEP and NAS studies, the 1996 redesign and the 2004 redesign presented “an opportunity to introduce features into the design that will make U.S. banknotes more readily usable by visually disabled people.” NAS Study at 2. The 1996 redesign did add two features intended to accommodate the visually impaired: a single larger numeral, placed on one side of the banknote at slightly less than twenty percent of the height of the banknote, to “facilitate recognition by persons with low vision,” and an infrared feature, to “facilitate the development of a new hand-held currency reader for the blind.” Supp. Decl. of Thomas Ferguson, (Aug. 30, 2005)
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[#33-7, at ¶ 4]. The changes fell well short of the NAS recommendations, however; the NAS report had recommended a denomination numeral forty to sixty percent of banknote height, printed on both sides, with either white ink on a black background or black ink on a white background. NAS Study at 46. As far as the BEP was concerned, the primary purpose of the redesigns was to make American currency less susceptible to counterfeiting. Mot. Hr’g Tr. (May 4, 2006) at 25.5
The 1996 redesign cost the BEP approximately $34 million, of which $26 million was devoted to funding a public education campaign.6 The redesign further increased annual costs by $31 million. Supp. Dec. of Thomas Ferguson (Aug. 30, 2005)[#33-7, at ¶ 5]. The total initial cost for the 2004 redesign was $113,037,205. This included approximately $38 million for the purchase of six new presses and $50 million for a
5The 1996 redesign introduced several new security features, including watermark portraits, an embedded security thread, micro-printed words, and color shifting ink. Supp. Decl. Of Thomas Ferguson, (Aug. 30, 2005) [#33-7, at ¶ 4]. The 2004 redesign added small yellow denomination numerals on the back of each note, a more complex design and additional background colors to the $10, $20, $50, and $100 bills. Id. at ¶ 6.
6The total costs of the 1996 redesign also included $1.5 million for research, consultation and design, $4.5 million on engraving and manufacturing new printing plants, $1.1 million on inspection equipment, $200,000 for inhouse contracts and $90,000 on site preparation.
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public education campaign.7 In addition, the 2004 redesign required over $25 million in increased annual costs. Id. at ¶ 7.
Jurisdiction
In its renewed motion to dismiss, the government interposes a sovereign immunity defense for the first time, invoking Lane v. Pena, 518 U.S. 187 (1996), in which the Supreme Court found that the United States had not waived sovereign immunity in a suit alleging a violation of § 504(a) of the Rehabilitation Act. That is the code section upon which these plaintiffs rely. It provides, in relevant part:
No otherwise qualified individual with a disability in the United States, as defined in section 706 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity8 receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794. Lane brought suit after he was discharged from the U.S. Merchant Marine Academy for having diabetes. The district court granted summary judgment and ordered him reinstated as a cadet, but it refused to award compensatory
7The total cost of the 2004 redesign also included $6.1 million for site preparation, $13.1 million for research, consultation and design, and $5 million to manufacture new printing plates.
8It appears to be undisputed, despite the awkward “fit” of the language, that the design, production and issuance of currency is a “program or activity” under the Rehabilitation Act. See Def.’s Renewed Mot. [#33, at 7, n.5]; Mem. Op. [#19, at 4, n.1].
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damages, finding that the government had not waived sovereign immunity for damages claims. Lane appealed, arguing that sovereign immunity had been waived by § 505(a)(2) of the Act, which provides: “The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance.” He argued that, because § 505(a)(2) incorporates “the remedies, procedures and rights” of Title VI, and because Title VI allows suits for monetary damages, the United States had waived its sovereign immunity. The Supreme Court disagreed, finding that § 505(a)(2) contained an “unequivocally expressed” waiver of sovereign immunity only for violations by “any recipient of Federal assistance or Federal provider of such assistance.” Section 505(a)(2) does not waive sovereign immunity, the Court found, for the much broader group of violations occurring “under any program or activity” authorized in § 504(a).
The present case, like Lane, is based on the “program or activity” language of the Rehabilitation Act, but the government’s reliance on Lane misses the mark. These plaintiffs seek only injunctive relief. Injunctive relief was awarded by the district court in Lane, was not challenged by the government, and was not disturbed by the Supreme Court. Lane v. Pena, 518
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U.S. 187, 190 (1996). The Court’s reasoning in Lane indeed supports the view that injunctive relief is available against the sovereign under this provision. To explain its holding that sovereign immunity was not waived in § 505(a)(2) of the Rehabilitation Act, the Court contrasted that provision with § 505(b), which contains a “clear waiver” of sovereign immunity for claims of attorney’s fees. As plaintiffs point out, there would be no purpose in crafting a provision allowing attorney fees unless the statute contemplates awards of declaratory and injunctive relief.
Analysis
In Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 (1979), and Alexander v. Choate, 469 U.S. 287 (1985), the Supreme Court identified two countervailing concerns that are to inform a court’s interpretation of § 504 of the Rehabilitation Act: “(1) effectuation of the statute's objectives of assisting the handicapped; and (2) the need to impose reasonable boundaries in accomplishing this purpose.” Three Rivers Center for Independent Living v. Housing Authority of City, 382 F.3d 412, 427 (3d Cir. 2004)(citing Choate, 469 U.S. at 299). The Court struck a balance between these two considerations by requiring that individuals have “meaningful access” to the benefits of programs or activities provided by grantees of federal assistance. Choate, 469 U.S. at 300. Plaintiffs are not entitled, however,
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to perfect access, or to remedies “specially tailored” for their circumstances. Id. at 303. Even where plaintiffs do not have meaningful access, moreover, the Rehabilitation Act entitles them only to such accommodations as are “reasonable.” Id. at 301. Accommodations are not reasonable if they would entail either “undue financial and administrative burdens” or a “fundamental alteration in the nature of a program.” Davis, 442 U.S. at 410, 412. The cross-motions for summary judgment in this case address the two core issues that the Davis and Choate cases present, namely, (1) whether blind and visually impaired plaintiffs have “meaningful access” to U.S. currency, and (2) if not, whether the acts necessary to achieve meaningful access would impose an “undue burden” on the government. Meaningful Access
The question of what is “meaningful access” in a specific case is ultimately one of law, but the legal precedents available to the parties and to the court are unhelpful because they are so few, and so fact-bound. In Jones v. City of Monroe, 341 F.3d 474 (6th Cir. 2003), a municipal parking lot provided free all-day parking, but the lot was two blocks from plaintiff’s office. Plaintiff, who had multiple sclerosis and used a wheelchair, sued under the Rehabilitation Act for a free parking space adjacent to her office building. The Sixth Circuit rejected her claim that she had been denied meaningful access to
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the benefits of free parking. Reasoning that “equal results from the provision of the benefit. . . are not guaranteed,” id. at 479 (quoting Choate, 469 U.S. at 305), the court found that the plaintiff had “access to the service offered by Monroe - free downtown parking in specific locations. She does not have a right to free downtown parking that allows her access to her destination of choice.” City of Monroe, 341 F.3d at 479. In United States v. Board of Trustees for University of Alabama, 908 F.2d 740 (11th Cir. 1990), federal regulations requiring the provision of sign-language interpreters for the hearing impaired were upheld, because, “in the case of a deaf student . . . all access to the benefit of some courses is eliminated when no signlanguage interpreter is present.” Id. at 748. Citing Davis, the Eleventh Circuit found that “if the provision of interpreters when necessary would not impose an undue financial burden on UAB, then it would be a reasonable accommodation. . . .” Id.
Plaintiffs in the instant case align themselves with the deaf students in Board of Trustees, arguing that they have “no access” to currency because they have no way to distinguish one bill from another without a scanning device or help from a sighted person. “No access” overstates the case, to be sure – the visually impaired have developed an impressive array of coping mechanisms, and they do make use of paper money – but plaintiffs do not need to prove “no access” to prevail. Like
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deaf students who can have real access to a lecture only with an interpreter or a realtime transcript, blind or visually impaired people cannot make effective use of American currency without help. There was a time when disabled people had no choice but to ask for help – to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, by enacting the Rehabilitation Act, whose stated purpose is “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society.” 29 U.S.C. § 701(b)(emphasis added). It can no longer be successfully argued that a blind person has “meaningful access” to currency if she cannot accurately identify paper money without assistance. Undue Burden
Plaintiffs who do not have meaningful access are entitled only to “reasonable accommodations.” Choate, 469 U.S. at 301. Accommodations are not reasonable if they would entail either “undue financial and administrative burdens” or a “fundamental alteration in the nature of a program.” Davis, 442 U.S. at 410, 412.
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The government submits that the burden-shifting approach outlined in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), should be applied where plaintiffs seek an accommodation under the Rehabilitation Act. Under Barnett, plaintiffs must first show that a requested accommodation would be “reasonable on its face.” The burden then shifts to defendant to show “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 401-02. Plaintiffs rightly point out the lack of authority for applying this method outside Barnett’s employment-discrimination context, but it is as good as any method of shifting the balance.
Plaintiffs have proposed several possible changes to U.S. currency: dimensions varied by denomination, embossed dots, foil, micro-perforations, and raised intaglio printing.9 The fact that each of these features is currently used in other currencies suggests that, at least on the face of things, such accommodations are reasonable, but the government denies it, pointing to a “host of factors” that it says distinguish U.S. currency from other paper money. Def.’s Mem. Opp’n. [#43, at 10]. None of these factors demonstrates undue hardship, however.
9The parties have also debated design changes that would accommodate plaintiffs who have low vision, but who are not blind. These include: increasing the size of the numeral, altering background colors, and adding geometric patterns. While such changes would no doubt be a welcome improvement for many people, any solution that accommodates some, but not all, individuals with impaired vision is, at best, a half-measure.
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First, the government suggests that any changes to the currency could interfere with the BEP’s statutory mandate to guard against counterfeiting, id., and warns that the increasing sophistication of counterfeiting efforts would “significantly complicate any effort to add a tactile feature to U.S. currency.” Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J, (October 25, 2005) [#43-2, at ¶ 3]. This suggestion is unsupported argument, and it is utterly unpersuasive. The government offers no reason to think that the addition of a tactile feature would render U.S. currency more vulnerable to counterfeiting, and indeed the use of foil and raised print on the Euro is considered a security feature, as is the microperforated number on a Swiss banknote. See The Euro, Our Money, [#60-2], European Central Bank - Security Features, [#60-3], and Swiss National Bank - Security Features, [#60-4].
The government also contends that any “drastic or sudden” changes to the currency could undermine international recognition and acceptance of U.S. currency “as a common medium of exchange throughout the world.” Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J, (October 25, 2005) [#43-2, at ¶ 2]. This contention is not only unsupported, but, on its face, is fairly absurd. If the government has any evidence that U.S. currency is accepted throughout the world because it is a
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“greenback,” rather than because of the strength of the American economy, it has not placed that evidence in the record.
Lastly, the government asserts, more plausibly, that each of the proposed changes might decrease the life span of American currency, requiring more frequent replacement. Increasing the size of currency, for example, might cause people to fold bills more frequently, “thus increasing the wear on those denominations. . . and increasing expenditures to replace worn currency.” Id. at ¶ 5.10 Such costs “cannot be determined.” Def.’s Resp. To Interrogs. 5, 6 [#35-11].11 In 2001, the Canadian Bank Note Company (CBNC) conducted preliminary tests on ten U.S. banknotes to determine the feasibility of adding tactile features such as those used in Canadian currency. The parties disagree about whether those tests were persuasive, compare Decl. of H.H. Holton [#35-45, at ¶¶ 8-9], with Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at
10The record contains little information about the effect of currency changes on third parties, and what information there is is inconclusive. The National Automatic Merchandising Association (NAMA), as amicus curiae, argues that changes to U.S. currency impact the $30 billion vending machine industry. A small survey of NAMA members (eight respondents) reveals mixed levels of concern about the economic impact of the proposed changes, however. The surveyed firms agreed that changing the width of bills would be the most costly alteration. Some firms estimated major costs associated with any change, whereas other respondents, particularly those that conduct business outside the U.S., stated that changes would not be difficult to implement. See Mem. of Nat’l Automatic Merchandising Ass’n [#39].
11Government counsel’s oral estimate of cost increase that would result from a reduction in the useful life of each bill, Mot. Hr’g Tr. (May 4, 2006) at 26-27, is unsupported in the record.
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¶ 10], but they appear to agree that a test of ten notes is not statistically significant. Id. The BEP has chosen not to pursue further testing, because the results of the initial test were “sufficiently disappointing that pursuing inclusion of the proposed feature on U.S. currency was not considered worthwhile,” and because security considerations for transferring 1,000 bank notes to a foreign location “make the preliminary testing of only small quantities more practical.” Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at ¶¶ 910]. Neither explanation is compelling. The Federal Reserve distributes a “large” amount of currency to foreign banks each year, see Federal Reserve Board, Currency and Coin Services, [#60-14], and the results of a statistically insignificant test, no matter how disappointing, should not serve as the basis for a decision not to conduct a statistically significant one. Lacking any statistically significant evidence from the government, I cannot find that a hypothetical reduction in the life span of bank notes constitutes an undue burden.
Moreover, the government has tacitly conceded at least the feasibility of each proposed feature, except raised intaglio printing, by providing cost estimates.12 Production of bills of
12Defendant’s initial cost estimates in this matter were startling, and ultimately misleading. Defendant first asserted that the changes sought by plaintiffs would require an initial investment of $26 to $101 million dollars more than its total budget for 2001, and an annual increase in expenses of sixty-five to seventy-nine percent. See Def.’s Mem. Opp’n. [#43, at 24];
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different sizes, the most expensive option, would require an initial investment of $178 million for new printing presses, inspection and verification machines, numbering machines, and processing equipment, and $37-50 million for new printing plates for each new bill. See Def.'s Resp. to Pls.’ Second Req. for Produc. of Documents [#43-3]. In addition to these initial costs, the BEP foresees increased annual costs of approximately $30 million to acquire additional paper and ink and $22 million to meet increased labor needs. Id. An embossed feature on each bill, such as a raised numeral, would have initial capital costs of $45.5 million and additional annual costs of approximately $16 million. Supp. Decl. of Thomas Ferguson (Aug. 30, 2005), [#33-7, at ¶ 9]. Perforating (punching a hole in) each note would require initial costs of $75 million, with additional annual costs of approximately $9 million. Id. at ¶ 10. A foil feature would require an initial expenditure of $51.5 million with annual costs of approximately $15 million. Id. at ¶ 14. In addition, the government notes, any change would require worldwide public education to ensure public acceptance of the new bills, which
Def.’s Reply [#61, at 16]. This estimate appears to have been calculated to include all of the changes proposed by plaintiffs, however. Just one such tactile feature would suffice. See Pls.’ Surreply [#67, at 15].
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would cost between $70 to $90 million. Decl. of Thomas Ferguson (Aug. 28, 2002) [#33-5, at ¶ 48].13
These cost estimates are the heart of the government’s undue burden argument. The government asserts that any of the accommodations proposed by plaintiffs would force it to undertake the kind of “undue financial and administrative burdens" precluded by Supreme Court precedent.
Any change to the design of U.S. currency would undoubtedly require a substantial investment of labor, time, and money devoted to, among other things, research, consultation, planning, the creation of new plates, the purchase, installation, and operation of new equipment, and increased maintenance and production costs. Yet the government’s own estimate of such costs would represent only a small fraction of BEP’s annual expenditures. Over the past ten years – and two redesigns – the BEP has spent $4.2 billion on currency production, an average of $420 million per year. Def.’s Resp. to Interrog. 1 [#35-11]. Over the same ten year period, the addition of an embossed numeral - at an initial cost of $45.5 million and annual costs of
13All cost estimates were provided by the government. See Def.'s Resp. to Pls.’ Second Req. for Produc. of Documents; Supp. Decl. of Thomas Ferguson (Aug. 30, 2005). These figures may be inflated, however, due to the government’s inclusion of the cost of modifying the one dollar bill. See Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at ¶ 11]. Plaintiffs do not seek changes to the one dollar bill, which by BEP estimates accounts for roughly half of all currency printed each year.
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$16 million - would have increased BEP spending by approximately $205.5 million, or less than five percent. If additional savings could be gained by incorporating the new feature into a larger redesign, such as those that took place in 1996 or 2004, the total burden of adding such a feature would be even smaller.
Further Proceedings
Plaintiffs have demonstrated that they lack meaningful access to U.S. currency. They have put forth several potential accommodations that are reasonable on their face. The government has not sustained its burden of showing that any of them would be unduly burdensome to implement. I find, accordingly, that the Treasury Department’s failure to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates § 504 of the Rehabilitation Act, and I will grant plaintiffs’ prayer for a declaratory judgment.
Plaintiffs also seek three forms of injunctive relief: (1) a permanent injunction prohibiting defendant from continuing to manufacture banknotes in the present manner; (2) a permanent injunction requiring that banknotes be designed to incorporate features that will make them accessible to people with blindness and other vision impairments; and in conjunction therewith an order that defendant provide for court approval a detailed corrective action plan as to the features which it will incorporate into the design of U.S. banknotes to accomplish such
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purpose; and (3) a permanent injunction mandating that defendant diligently pursue the development of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes.
This Court has neither the expertise, nor, I believe, the power, to choose among the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law. The Clerk will be directed to set a status conference for the purpose of discussing remedy and scheduling any further proceedings, unless within ten days of the issuance of this memorandum order the government applies for leave to file an interlocutory appeal. (This memorandum order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal from this order may materially advance the ultimate termination of this litigation. See 28 U.S.C. § 1292(b).)
* * * * * For the foregoing reasons, it is ORDERED that defendant’s renewed motion to dismiss or for summary judgment [#33] is denied; it is FURTHER ORDERED that plaintiffs’ motion for summary judgment [#35] is granted in part, and that it is ADJUDGED AND DECLARED that the Treasury Department’s failure to design,
- 25 -

Case 1:02-cv-00864-JR Document 71 Filed 11/28/06 Page 26 of 26 produce and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates § 504 of the Rehabilitation Act. And it is
FURTHER ORDERED that the clerk set a status conference for a date and time convenient to the parties approximately 30 days after the date of this memorandum order.
JAMES ROBERTSON United States District Judge
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 Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT The defendants, by their undersigned counsel, hereby move that summary judgment in their favor be granted under Rule 56 of the Federal Rules of Civil Procedure, on the grounds that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. The grounds for this motion are more fully set forth in the accompanying Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment and Defendants' Statement of Material Facts as to Which There Is No Genuine Issue. Dated: August 29, 2002
Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 2 of 40
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel Attorneys, Department of Justice Civil Division, Room 986 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8202 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS
2

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 3 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

August 29, 2002

ROBERT D. McCALLUM, JR. Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel
Attorneys, Department of Justice Civil Division, Room 986 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8202 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 4 of 40
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY AND ADMINISTRATIVE BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The Rehabilitation Act Does Not Require Changing the Currency for Visually-Impaired Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. Two of Plaintiffs' Prayers for Relief Must Be Dismissed . . . . . . . . . . . . . . . . . . 16 A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury . . . . . . . . . . . . . . . . 17 B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. The Treasurer of the United States Should Be Dismissed as a Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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INTRODUCTION By statute, the "form and tenor" of United States Federal Reserve Notes "shall be . . . as directed by the Secretary of the Treasury." 12 U.S.C. § 418. Therefore, as the plaintiffs concede, "the form and design of United States currency is solely within the discretion of the Secretary," subject only to statutory requirements regarding the denominations to be produced, the use of a specific printing process, the printing of a distinctive letter and serial number on each bill, and the inclusion of the motto "In God We Trust" and of the portrait and name of a deceased person. See Complaint ¶ 22; see also 12 U.S.C. §§ 413, 418; 31 U.S.C. § 5114. Notwithstanding the Secretary's broad discretion regarding the "form and design" of the currency in every other respect, plaintiffs assert that the Rehabilitation Act of 1973 requires the Secretary to make several changes to enable blind and visually-impaired persons to distinguish more easily among the various denominations. 29 U.S.C. §§ 791 et seq. Specifically, plaintiffs seek an order requiring (1) that each denomination have a different length, height, and color from all others, (2) that a "raised" (i.e., embossed) denomination numeral and a Braille symbol be included on each note, and (3) that a denomination numeral at least one-half the height of the note, printed in black ink, be included on each note. See Complaint at 16-17. Plaintiffs' aim is an appropriate subject for public policy discussion. Cf. Modderno v. King, 82 F.3d 1059, 1060 (D.C. Cir. 1996) ("Whatever the merit of these broader arguments, we must leave them for resolution in other spheres, such as the political branches of government . . . ."), cert. denied, 519 U.S. 1094 (1997). As a legal matter, however, the Rehabilitation Act does not require the Secretary to make the changes requested by the plaintiffs, because plaintiffs' redesign of the currency would impose "undue financial and administrative burdens" on the Bureau of Engraving and Printing, to which the Secretary has delegated the

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 6 of 40
development of currency design and the production of currency. See Southeastern Community College v. Davis, 442 U.S. 397, 412 (1979). The fact that this task is statutorily committed to the sole discretion of the Secretary counsels even further against any court order requiring a redesign of the currency.
The plaintiffs' redesign would, moreover, impose burdens at least as great on the entire banking and commercial sector, which would have to replace or modify automated teller machines, vending machines, and other currency-handling equipment to accommodate the change, and on the Federal Reserve System, which circulates the currency and removes worn and counterfeit notes from circulation. The financial impact of designing and producing the new currency would also fall upon the Federal Reserve System, which is statutorily responsible for reimbursing the BEP's costs. See 31 U.S.C. § 5143. Furthermore, this redesign would affect the currency transactions of every American individual and business, and give rise to a host of public-policy issues not appropriate for resolution in a judicial setting. For all of these reasons, summary judgment should be granted to the defendants, and this action should be dismissed with prejudice.
Assuming summary judgment of this entire action were, for some reason, deemed inappropriate, two of plaintiffs' individual prayers for relief should be dismissed — that is, their request for an order that certain specific features be included in any redesigned currency, and their request for an order requiring a redesign of the one-dollar bill. See Complaint at 16-17. Assuming the existing currency were found to violate the Rehabilitation Act, the details of a redesign of the currency would be within the sole discretion of the Secretary of the Treasury; and a specific legislative provision expressly prohibiting any redesign of the one-dollar bill would
2

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 7 of 40
foreclose including that denomination in an injunction. Lastly, one of the two defendants named
in this action — the Treasurer of the United States — should be dismissed because the Treasurer
has no role in the design or production of currency.
STATUTORY AND ADMINISTRATIVE BACKGROUND
The country's current monetary system was established by the Federal Reserve Act of
1913. See Act of Dec. 13, 1913, ch. 6, 38 Stat. 251. A portion of section 16 of that enactment,
now codified as section 418 of Title 12, governs the production of United States currency:
§ 418. Printing of notes; denomination and form
In order to furnish suitable notes for circulation as Federal reserve notes, the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of such notes of the denominations of $1, $2, $5, $10, $20, $50, $100, $500, $1,000, $5,000, $10,000 as may be required to supply the Federal Reserve banks. Such notes shall be in form and tenor as directed by the Secretary of the Treasury under the provisions of this chapter and shall bear the distinctive numbers of the several Federal reserve banks through which they are issued.
12 U.S.C. § 418 (emphasis added); see Act of Dec. 13, 1913, ch. 6, § 16, 38 Stat. at 267. This
section has been amended several times since its initial enactment in 1913. Most recently,
Congress amended section 418 to change "the Comptroller of the Currency shall, under the
direction of the Secretary of the Treasury, cause plates and dies to be engraved," in the first
sentence, to "the Secretary of the Treasury shall cause plates and dies to be engraved." See Pub. L. No. 103-325, § 602(g)(3), 108 Stat. 2160, 2293 (1994).1
1 This recent amendment affirms that Congress is aware of the content of section 418, and thus reinforces the conclusion that Congress intends the Secretary to exercise sole discretion over the form of currency. See Consolidated Rail Corp. v. United States, 896 F.2d 574, 579 (D.C. Cir. 1990) (amendment bolsters conclusion that Congress is aware of statute and intends adherence to
(continued...) 3

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 8 of 40
The underlined language in section 418 indicates that the "form and tenor" of the currency are committed to the Secretary of the Treasury.2 Thus, the design and production of our national currency are committed to the sole discretion of the Secretary. 12 U.S.C. § 418; see Complaint ¶ 22. That discretion is limited only by statutes which control the denominations of currency that may be produced; mandate the use of a specific printing process; and require that each bill bear a distinctive letter and serial number, the portrait and name of a deceased person, and the motto "In God We Trust." 12 U.S.C. §§ 413, 418; 31 U.S.C. § 5114. The Secretary has delegated the development of currency design and the production of currency to the Bureau of Engraving and Printing ("Bureau" or "BEP"), a component of the Department of the Treasury. See Declaration of Thomas A. Ferguson ¶ 3 [hereinafter Ferguson Decl.].
The BEP does not circulate the currency that it produces. Rather, it sells currency to the Federal Reserve System ("Fed"), a federal government entity composed of a Board of Governors and twelve regional Federal Reserve Banks. Id. ¶¶ 10, 11. Banks and other private depository institutions are members of a Federal Reserve Bank. Id. ¶ 10. The Federal Reserve Board orders new currency from the Bureau based on the needs of the Federal Reserve Banks, which correspond to the circulation needs of depository institutions. Id. ¶ 11. The Federal Reserve Banks place currency in circulation by selling currency to depository institutions. Id. ¶¶ 11, 13.
1(...continued) its plain language); accord Oviawe v. INS, 853 F.2d 1428, 1433 (7th Cir. 1988).
2 The use of the word "tenor" in this provision is apparently an instance of the nowobsolete definition "quality, character, or condition." See The Random House College Dictionary 1354 (rev. ed. 1980).
4

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The Federal Reserve Banks are also responsible for detecting overly-worn and counterfeit bills and removing them from circulation. Id. ¶ 14; see 31 U.S.C. § 5141 et seq.
The BEP's activities are financed by a revolving fund which is replenished by the sale of the Bureau's products. See Ferguson Decl. ¶ 7. Thus, the Bureau recovers its costs of designing and producing currency by selling currency to the Federal Reserve System. Id. The Fed, in turn, recovers its costs of purchasing and handling currency by selling currency to private depository institutions. Banks and other depository institutions then recover their costs through banking fees, lending rates, and charges for other banking services. Id. ¶ 56.
ARGUMENT I. The Rehabilitation Act Does Not Require Changing
the Currency for Visually-Impaired Persons Section 504(a) of the Rehabilitation Act provides in part:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. . . . 29 U.S.C. § 794(a). Under this provision, a government agency may be required to make accommodations for a disability, but need only make such accommodations as are "reasonable." See Alexander v. Choate, 469 U.S. 287, 301 (1985). Moreover, requested accommodations are not "reasonable" if they would entail either "undue financial and administrative burdens" or a "fundamental alteration in the nature of a program." Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979); see School Bd. of Nassau County v. Arline, 480 U.S. 273, 287
5

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 10 of 40
n.17 (1987); Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993), cert. denied, 511 U.S. 1030 (1994).
In this case, the accommodations sought by the plaintiffs — extensive changes in United States currency — would impose "undue financial and administrative burdens," and would not, therefore, be reasonable. Specifically, the changes sought would require the expenditure of millions of dollars and thousands of man-hours of labor to redesign the currency, replace existing equipment, and produce the changed currency (above the amounts now expended to produce the existing currency). Additional costs would be incurred by the Federal Reserve System to adapt to the new currency. Moreover, expenditures by the private sector to accommodate these changes would rival — and may even exceed — the expenditures incurred by the government in making the changes.
Based on all of these factors, the Bureau of Engraving and Printing has determined not to recommend, to the Secretary of the Treasury, the currency redesign requested by the plaintiffs, and that decision is well within the statutory discretion governing the design and production of U.S. currency. See Ferguson Decl. ¶ 58; 12 U.S.C. § 418. Indeed, the plaintiffs themselves recognize and concede that the Federal Reserve Act places the "form and design" of the currency "solely within the discretion of the Secretary." See Complaint ¶ 22. Summary judgment should, therefore, be entered for the defendants.
The existing precedent on "reasonable accommodation" applies here only in miniature, for the Rehabilitation Act has never been used in attempting to compel such a vast and expensive undertaking. The Supreme Court long ago established the extent of a defendant's obligation to undertake accommodation in Southeastern Community College v. Davis. In Davis, a licensed
6

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 11 of 40
practical nurse was denied admission to the school's nursing program because of a severe hearing disability, and the nurse alleged that that denial violated the Rehabilitation Act. The Supreme Court disagreed, rejecting plaintiff's contention that the school should have accommodated her disability by giving her "individual supervision by faculty members whenever she attend[ed] patients directly" and by dispensing with certain course requirements. 442 U.S. at 407-08. Section 504 of the Rehabilitation Act requires "evenhanded treatment" of handicapped persons, but does not require "affirmative efforts to overcome the disabilities caused by handicaps." Id. at 410. Thus, the Court held, a refusal to make "major adjustments" or to undertake "undue financial and administrative burdens" does not constitute "discrimination" under the Act. Id. at 412-13. The Court rejected the accommodations sought by the plaintiff, holding that "[s]uch a fundamental alteration in the nature of a program" is not required. Id. at 410.
The Supreme Court also addressed the reasonableness of requested accommodations in Alexander v. Choate. Alexander involved a state's decision to reduce, from twenty to fourteen, the number of inpatient hospital days that the state's Medicaid program would provide for each recipient in one year. Plaintiffs asserted, among other things, that the imposition of any durational limitation on inpatient coverage violated the Rehabilitation Act. 469 U.S. at 306. "The thrust of this challenge," the Court noted, was that "(1) the effect of such limitations falls most heavily on the handicapped and . . . (2) this harm could be avoided by the choice of other Medicaid plans that would meet the State's budgetary constraints without disproportionately disadvantaging the handicapped." Id.
The Court rejected this challenge, primarily because of the expense of implementing the decisionmaking implicit in plaintiffs' argument. Specifically, the Court noted that to avoid
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imposing any durational limitation having an unduly disproportionate impact on the handicapped, a state would need to analyze the effect of every "across-the-board action affecting Medicaid recipients." Id. at 308. Such an analysis "would have to be further broken down by class of handicap," and "the State would then have to balance the harms and benefits to various groups to determine, on balance, the extent to which the action disparately impacts the handicapped." Id. "It should be obvious," said the Court, that the "administrative costs" of carrying out such an accommodation would be "well beyond" what the Rehabilitation Act requires. Id.
The accommodations requested — and held to be unreasonable — in Davis and Alexander are minuscule compared to the sweeping, costly changes in the United States currency sought by the plaintiffs here. The plaintiffs seek (1) the production of Federal Reserve Notes of varying length, height, and color, by denomination, (2) the printing of an embossed denomination numeral, and the inclusion of a Braille symbol, on each note, and (3) the inclusion, on each note, of a denomination numeral at least one-half the height of the note, printed in black ink on a white background. See Complaint at 16-17. Implementing these changes — particularly the production of notes in various sizes — would impose substantial financial and administrative burdens on the Bureau of Engraving and Printing in at least the following areas: research and consultation; planning the redesign of the currency; plate engraving and manufacture; purchasing and installing additional equipment; producing the new currency; public education; and replacing worn currency. See Ferguson Decl. ¶ 21.
Any redesign of the currency requires thorough research, consultation, and planning. Consultation must occur with other federal entities, such as the Secret Service and the Federal
8

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Reserve Board, and with interested members of the public. Id. ¶ 23. In relation to the redesign sought by the plaintiffs, considerable research and planning would be required to determine the appropriate sizes of the bills and to create a new, different design for each denomination. Id. ¶¶ 24-25. Implementing the Braille symbols and raised numerals requested by the plaintiffs would substantially complicate and lengthen this process. Id. ¶ 25. These initial tasks would take approximately three to six years and cost between 1 and 2 million dollars. Id. ¶ 26.
After designing the new currency, the Bureau would have to engrave new templates and manufacture new printing plates. A template would have to be engraved, by hand, for each denomination. Id. ¶ 27. Approximately half of the BEP's 455 plates would have to be replaced (given that the one-dollar bill, which, by statute, cannot be changed, accounts for about half of the Bureau's production). Id. ¶¶ 5, 28. This task would take approximately five to seven years — after completion of the research and design phase — and cost between 3 and 4 million dollars. Id. ¶ 29.
The most costly impacts of implementing plaintiffs' redesign of the currency would occur in purchasing, installing, and operating additional equipment. The Bureau uses separate machinery to perform intaglio printing on the currency, to perform offset printing of new security features, to inspect the printed bills, and to add identifying marks (serial numbers, etc.) and package the completed bills. Id. ¶¶ 30-39. The Bureau's existing intaglio and offset equipment is designed to accommodate the size of the existing printing plates, on which thirty-two bills are printed. Producing larger bills would entail printing fewer bills on each plate, thus requiring
9

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additional printing runs to maintain current production levels.3 Id. ¶¶ 31, 33. To perform those additional printing runs, the Bureau would have to acquire at least four additional intaglio presses and two additional offset presses. Id. ¶¶ 32, 34. The cost of these machines would be between 46 and 61 million dollars. Id.
As part of the production process, the Bureau uses automated equipment that inspects the bills in order to ensure accurate and uniform output. Changing the size of the currency, and producing different denominations in different sizes, would require not only changing the physical dimensions of the currency-handling portions of those machines, but also changing the software that governs the inspection process. Id. ¶ 35. Additionally, varying the sizes of the denominations would eliminate the ability to use the same inspection machines for all denominations; this loss of flexibility would require adding inspection capacity in order to maintain current production levels. Id. ¶ 36. Based on all of these considerations, implementing plaintiffs' currency redesign would require the Bureau to design, purchase, and install at least two new pieces of inspection equipment, at a total cost of between 16 and 21 million dollars. Id. ¶ 37.
After inspection, the printed sheets of currency run through another machine to print the serial numbers and other identifying marks, cut the sheets into individual bills, and package the completed currency. Id. ¶ 38. Producing bills of different sizes would require designing and purchasing new equipment (and new software) to perform these tasks. Id. ¶ 39. As with the
3 Printing fewer bills on each plate would be much cheaper than varying the size of the printing plates by denomination, because the latter alternative would entail replacing half of the Bureau's existing intaglio and offset presses to accommodate different-size plates, rather than only acquiring a few additional presses to perform additional printing runs. See Ferguson Decl. ¶ 31.
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inspection step, too, eliminating the flexibility of using every machine for every denomination would require increased capacity to maintain current production levels. Id. Thus, the Bureau would have to design, purchase, and install twenty new pieces of equipment for these tasks, at a total cost of between 100 and 130 million dollars. Id.
Acquiring all of this new equipment would, of course, involve preparing equipment specifications and requests for proposals, evaluating contract offers, and otherwise working with contractors. Id. ¶¶ 40-44. These procurement tasks would consume approximately 7,000 manhours, over a period of several years, to acquire all of the above-described equipment. Id. ¶ 44. The Bureau would have to expend between 9 and 12 million dollars, in addition to the abovestated direct acquisition costs, to award and administer the contracts and prepare its work space for replacement and additional equipment. Id.
In addition to the costs of acquiring new equipment, implementing the redesign sought by the plaintiffs would increase the yearly cost of producing United States currency. More distinctive currency-grade paper and more ink would be needed. Id. ¶ 45. Other production expenses would also increase, such as maintenance costs for the new equipment described above and additional man-hours for BEP's existing employees involved in production. Id. These increased production costs — the paper, the ink, and the other expenses — would total between 36 and 45 million dollars per year.4 Id. Additionally, new employees would be needed to operate the new
4 These figures do not include certain additional costs that the Bureau has not estimated at this time, due to technical uncertainties and challenges — that is, the costs of equipment for embossing a numeral and adding a Braille symbol, and the likely increased costs of packaging, handling, and storage due to variations in the thickness of each bill because of the addition of those features. See Ferguson Decl. ¶ 47.
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equipment — up to a total of 246 full-time equivalents, or another 15 to 20 million dollars per year. Id. ¶ 46.
Another very significant increase in yearly expenses would be the increased cost of replacing worn currency. Approximately 95% of the BEP's yearly production is attributable to the need to replace worn currency removed from circulation by the Federal Reserve System. Id. ¶ 15. Including the embossed numeral and the Braille symbol requested by the plaintiffs would cause the currency to wear out much faster, because the ink of the embossed numeral would rub off during circulation and the raised dots of the Braille symbol would wear away faster than the surrounding paper, rendering those features useless for blind persons. Id. ¶ 49. Until the means of implementing those features is determined and tested, it is difficult to know precisely how much their inclusion would decrease the useful life of each bill. The Bureau believes, however, that including such features would reduce the life of each bill by at least fifty percent. Id. ¶ 50. Assuming an even more conservative estimate of a forty percent reduction in the life of each bill, the increased production volume caused by including an embossed numeral and a Braille symbol on each bill (other than the $1 bill) would increase the overall costs of producing the country's currency by between 92 and 109 million dollars per year . Id. ¶ 51.
Lastly, to introduce a drastic change in the currency such as that sought by the plaintiffs, the Bureau would have to undertake an extensive public-education campaign. Given that United States currency is widely used throughout the world, a worldwide public education campaign would be needed to familiarize users with the new currency and to advance public acceptance of the currency. Id. ¶ 48. An additional effort would be needed to prepare blind and visuallyimpaired persons to recognize and use the redesigned currency. For the 1996 redesign, which
12

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involved enlargement of the portrait and the addition of a watermark and a security thread, the Bureau expended approximately 50 million dollars on public education. Id. For the much more extensive changes requested by the plaintiffs here, the Bureau would have to spend between 70 and 90 million dollars on public education. Id.
In summary, implementing the currency redesign sought by the plaintiffs would require an extensive effort of several years' duration, affecting every BEP employee to one degree or another. Id. ¶¶ 26, 29, 43, 44, 53. Initial expenses attributable to the redesign (research, consultation, and redesign; engraving and manufacturing new printing plates; purchasing and installing new equipment; and public education) would amount to between 245 and 320 million dollars. Id. ¶ 53. Increased annual production costs due to the redesign would total between 143 and 174 million dollars — not counting the increased cost of producing each denomination in a different color and including an embossed numeral and Braille symbol on each bill, nor the cost of increasing the Bureau's production capacity to meet the increased demand due to the shorter life of the redesigned notes. Id. ¶¶ 52, 55.
Given this monumental impact on its operations, the currency redesign sought by the plaintiffs would clearly impose "undue financial and administrative burdens" on the Bureau of Engraving and Printing, and a refusal to undertake this task is well within the Secretary of the Treasury's statutory discretion. Davis, 442 U.S. at 412; 12 U.S.C. § 418. The burdens described above far exceed the course adjustments held unreasonable in Davis and the analysis of Medicaid program changes held unduly burdensome in Alexander. 442 U.S. at 407-08, 412; 469 U.S. at 308.
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A redesign of the currency would also have very substantial impacts on other persons and entities — specifically, the Federal Reserve System and the entire American public. The Fed, which issues and circulates the currency, is responsible for identifying worn and counterfeit bills and removing them from circulation. See Ferguson Decl. ¶ 54. Because these tasks are performed automatically by machinery, the issuance of redesigned bills in different sizes would require the Fed, at the very least, to adjust its equipment; at worst, the Fed would have to replace its equipment, if the largest redesigned bill exceeded the size parameters of its existing equipment. Id. The Bureau's costs of implementing plaintiffs' redesign would also fall upon the Fed, which would be responsible for reimbursing those costs. See 31 U.S.C. § 5143. Further, the Fed's ongoing costs of acquiring new currency from the Bureau would increase because of the reduction in the useful life of the redesigned bills, given the inclusion of the raised numeral and Braille symbol requested by the plaintiffs. See Ferguson Decl. ¶¶ 13, 49-51, 55.
The impact on the American public may well dwarf the impact on the BEP and the Federal Reserve System. Plaintiffs' redesign would affect American individuals and businesses in countless ways, many of them probably not yet imagined. For example, automated teller machines and vending machines would have to be replaced or modified to accommodate bills of different sizes. Id. ¶ 57. The life of every member of the public would be affected, such as in the need to adjust to the new currency and even to purchase new wallets. And, as noted already, all of the costs of the redesign, from the Bureau's initial and increased production costs to the Fed's increased costs and the costs of replacing or modifying business equipment, would ultimately be borne by the public, in higher banking fees, higher lending rates, and higher retail prices. Id. ¶¶ 22, 56.
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Finally, the plaintiffs should not be heard to argue that the supposed "benefits" of redesigning the currency outweigh these administrative and financial burdens. See Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 139 (2d Cir. 1995); Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 543 (7th Cir. 1995). First, the Supreme Court did not engage in any such comparison in Davis or Alexander, and has never addressed whether the Rehabilitation Act requires comparing costs and benefits. Second, any comparison of the costs and "benefits" of plaintiffs' redesign would turn on a host of issues regarding unquantifiable "costs" and subtle impacts that a court would be ill-equipped to evaluate. Cf. Borkowski, 63 F.3d at 138 (reasonableness depends on "the desirability of a particular accommodation according to the consequences that [it] will produce"); US Airways, Inc. v. Barnett, 122 S. Ct. 1516, 1522 (2002) (noting that a requested "accommodation could prove unreasonable because of its impact, not on business operations, but on fellow employees"). For example, other advocates of the blind and visually-impaired may disagree that a court order requiring the changes sought by the plaintiffs would best serve the overall interests of those persons. Third and finally, a comparison of costs and benefits is entirely inappropriate where the defendant is a federal agency, the task in question is statutorily committed to the discretion of the agency, and the plaintiffs seek a change with drastic nationwide consequences.5
5 Any attempt to compare the costs of plaintiffs' redesign and the Bureau's resources would be similarly unavailing. Although Supreme Court precedent indicates that a court must consider a costs-versus-resources defense proffered by the defendant (and must give the defendant "wide discretion in adopting its own systems of cost analysis"), the Court has not addressed whether such a comparison is required if not offered by the defendant. See Olmstead v. L.C., 527 U.S. 581, 603-04 (1999) (plurality); id. at 608, 615 (Kennedy, J., concurring). Furthermore, none of the regulations often cited as the basis for a cost-resources comparison apply here, and a comparison of costs and resources makes little, if any, sense in relation to the
(continued...) 15

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 20 of 40
Under these circumstances, the issues raised in this action should be left to the legislative
and administrative processes responsible for determining national policy. The Rehabilitation Act
simply was not intended as a vehicle for major social reform affecting the daily life of every
American. Defendants should be granted summary judgment on plaintiffs' claims to the contrary.
II. Two of Plaintiffs' Prayers for Relief Must Be Dismissed
If this entire case were not disposed of on summary judgment, two of plaintiffs' prayers
for relief would have to be dismissed. See generally Crawford v. Bell, 599 F.2d 890, 893 (9th
Cir. 1979) (upholding dismissal of certain prayers for relief but not others). First, their request
for an order requiring the inclusion of certain specific features in a redesign of the currency must
be dismissed because the specifics of any redesign required by the Rehabilitation Act would be
within the sole discretion of the Secretary of the Treasury. Second, plaintiffs' request for an order
requiring a redesign of the one-dollar bill must be dismissed because Congress has expressly and specifically prohibited redesign of the one-dollar bill.6
5(...continued) activities of the federal government itself, whose resources are theoretically limitless. See, e.g., 45 C.F.R. § 84.12(c) (HHS regulations); see also Borkowski, 63 F.3d at 139 ("[W]here the employer is a government entity, Congress could not have intended the only limit on the employer's duty to make reasonable accommodation to be the full extent of the tax base on which the government entity could draw."); Vande Zande, 44 F.3d at 542-43. In any event, a costresources comparison in this case would favor the defendants, given that the initial cost of preparing to implement plaintiffs' redesign would exceed, by 26 to 101 million dollars, the Bureau's entire expenditure in producing currency during the most recently-concluded fiscal year, and the redesign would increase by 65% to 79% the Bureau's annual cost of producing currency. See Ferguson Decl. ¶¶ 6, 52. These figures do not take into account the increased costs due to including the Braille symbol and raised denomination numeral that plaintiffs seek, nor the impacts on the Federal Reserve System and the private sector.
6 In the alternative to dismissal, defendants request that these prayers be stricken from the complaint. See Fed. R. Civ. P. 12(f).
16

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 21 of 40
A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury
In their prayers for relief, plaintiffs seek not only "a permanent injunction prohibiting Defendants from continuing to manufacture banknotes in the present manner," but also —
a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral which is at
least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination. See Complaint at 16-17. In other words, plaintiffs ask the Court not only to enjoin continuing issuance of the currency as presently designed, but also to order the inclusion of certain specific features in the new currency. To some extent, therefore, plaintiffs are asking the Court to participate in the redesign of the currency. As plaintiffs acknowledge, however, the design of United States currency is, pursuant to the Federal Reserve Act, "solely within the discretion of the Secretary of the Treasury." Id. ¶ 22; 12 U.S.C. § 418 (Federal reserve notes "shall be in form and tenor as directed by the Secretary"). Thus, assuming the existing United States currency were somehow found to violate the Rehabilitation Act, this Court could only enter declaratory judgment to that effect and enjoin the violation. The Court should not order the inclusion of any specific features in a redesign of the currency, and plaintiffs' prayer for relief to that effect must be dismissed.
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B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill
Another of plaintiffs' prayers for relief seeks "a permanent injunction mandating that the $1 banknote be redesigned to incorporate new low vision features as mandated by Congress." See Complaint at 17. However, the current-year appropriations act for the Department of the Treasury provides that "[n]one of the funds appropriated [therein] or otherwise available to the Department of the Treasury or the Bureau of Engraving and Printing may be used to redesign the $1 Federal Reserve note." See Pub. L. No. 107-67, § 117, 115 Stat. 514, 525 (2001). Identical language has appeared in the two immediately preceding appropriations acts. See Pub. L. No. 106-554, § 117, 114 Stat. 2763 (2000); Pub. L. No. 106-58, § 117, 113 Stat. 430, 441 (1999). Therefore, even if the existing currency were found to violate the Rehabilitation Act as a general matter, this specific, recently-reenacted prohibition would easily override, in relation to the onedollar bill, the more general anti-discrimination provisions of the Rehabilitation Act. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("[I]t is a commonplace of statutory construction that the specific governs the general."); Busic v. United States, 446 U.S. 398, 406 (1980) ("[A] more specific statute will be given precedence over a more general one, regardless of their temporal sequence.").
The plaintiffs not only fail to recognize that the prohibition in the current appropriations act forecloses redesigning the one-dollar bill; they also contend that a statement in a 1999 congressional committee report actually requires redesigning the one-dollar note. In that report, the conferees on an appropriations bill wrote that they were "concerned about the cost associated with producing special anti-counterfeiting properties for the estimated 6 billion circulating $1
18

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 23 of 40
Federal Reserve Notes," but that they "believe[d] it [was] important to update the currency, such as making minor modifications to assist the visually impaired." H.R. Conf. Rep. No. 105-789, at 76 (1998), reprinted in 144 Cong. Rec. H9870, H9890 (daily ed. Oct. 7, 1998). Thus, the conferees purported to "direct the Department of the Treasury and the Bureau of Engraving and Printing . . . to only make minor design enhancements to the $1 note for the visually impaired and elderly population, provided it has no effect on the use of $1 Federal Reserve Notes with existing bill accepting machinery." Id.
This statement cannot, however, be read as requiring the redesign that plaintiffs seek. First, a statement in a committee report is not legislation; such a statement cannot, itself, establish a legal mandate. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ("indicia in committee reports and other legislative history as to how . . . funds should or are expected to be spent do not establish any legal requirements on the agency") (internal quotation marks omitted); American Hospital Ass'n v. NLRB, 499 U.S. 606, 616 (1991) (statements in committee reports do not have "the force of law"). Second, the bill to which this conference report relates (which did not, in any event, become law) contains no language regarding a redesign of the currency. See H.R. Conf. Rep. No. 105-789, at 1-62 (setting forth text of H.R. 4104), reprinted in 144 Cong. Rec. at H9871-H9886. Moreover, no legislative enactment during that fiscal year, or since, has required any redesign of currency for the visually-impaired. See Pub. L. No. 105-277, 112 Stat. 2681 (1998) (FY 1999 appropriations act). Third, even if the bill to which the above-quoted conference report relates had required the Secretary of the Treasury to redesign the one-dollar bill for the visually-impaired, it would have been overridden by the current appropriations act, which forbids any redesign regardless of its purpose. See Clarke v. United States, 915 F.2d 699, 701
19

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(D.C. Cir. 1990) (one appropriations act "superseded" by next act). Fourth and finally, even if a prior appropriations act were not overridden by the current act, the 1999 act could not require a redesign of the one-dollar bill now, because an appropriations act expires at the end of the fiscal year to which it relates. See Massachusetts v. Nuclear Regulatory Comm'n, 924 F.2d 311, 324 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991). III. The Treasurer of the United States Should Be Dismissed
as a Defendant In addition to the Secretary of the Treasury, who is responsible for the design and production of United States currency, the plaintiffs have named as a defendant the Treasurer of the United States. The Treasurer is basically the government's cashier, serving as the custodian of funds received and held in the United States Treasury. See, e.g., 2 U.S.C. § 158; 12 U.S.C. §§ 1439a, 1712, 1755(d); 16 U.S.C. § 3172(b); 28 U.S.C. § 2041; 33 U.S.C. § 944(a); 40 U.S.C. § 174j-4. The Treasurer is not, however, involved in the design or production of currency. See 12 U.S.C. § 418; 31 U.S.C. § 5114.7 In any event, an order solely against the Secretary would provide the relief sought by the plaintiffs — assuming such relief can be afforded under the Rehabilitation Act at all. Therefore, the Treasurer of the United States should be dismissed as a defendant.
CONCLUSION Accordingly, defendants' motion for summary judgment should be granted, and this action dismissed with prejudice.
7 The administrative reporting scheme alleged in paragraph 15 of the Complaint is no longer in effect. See 67 Fed. Reg. 44,261 (July 1, 2002).
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If this entire action were not disposed of on summary judgment, the Court should (1) dismiss the prayer for relief in which plaintiffs seek the inclusion of specific features in a redesign of the currency; (2) dismiss the prayer for relief in which plaintiffs seek a redesign of the one-dollar bill; and (3) dismiss the Treasurer of the United States as a defendant herein. Dated: August 29, 2002
Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel Attorneys, Department of Justice Civil Division, Room 986 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8202 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS
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Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 26 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

DEFENDANTS' STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7.1(h), the

defendants, by their undersigned counsel, submit the following statement of material facts as to

which there is no genuine issue, in relation to their motion for summary judgment:

The Bureau of Engraving and Printing

1. The Secretary of the Treasury has delegated the design development and the production

of Federal Reserve Notes, our national currency, to the Bureau of Engraving and Printing

("Bureau" or "BEP"), which is solely responsible for these tasks. See Declaration of Thomas A.

Ferguson ¶ 3.

2. The Bureau produces approximately 36 million Federal Reserve Notes each day, five

days per week. Billions of notes are produced each year. Id. ¶ 5.

3. The BEP produced just over 7 billion Federal Reserve Notes in Fiscal Year 2001, 9

billion in 2000, and 11.4 billion in 1999. Of the 7,004,800,000 notes produced in 2001, the

Bureau produced 4,748,800,000 one-dollar bills, 915,200,000 five-dollar bills, 652,800,000

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 27 of 40
ten-dollar bills, 486,400,000 twenty-dollar bills, and 201,600,000 one-hundred-dollar bills. Id. ¶ 5. 4. Over the years, about one-half of the Bureau's production consists of one-dollar bills.
Id. ¶ 5. 5. During Fiscal Year 2001, the BEP expended approximately $219,240,000 in producing
currency. Additionally, $29,000,000 was spent on capital investments, and $9 million on research and development. Id. ¶ 6.
6. Bureau operations are financed by a revolving fund established in 1950 pursuant to Public Law 81-656. The revolving fund is reimbursed for all direct and indirect costs of operations, through the sales of Bureau products. Id. ¶ 7.
7. In 1977, Congress expanded the Bureau's revolving fund to allow the Bureau to include, in the prices charged for its products, amounts sufficient to fund capital investments, thus eliminating the need to seek appropriations from Congress. Id. ¶ 7.
8. All of the Bureau's costs of designing and producing Federal Reserve Notes are covered by the revolving fund. Id. ¶ 7.
9. The Bureau introduced a major redesign of the currency in 1996. The planning of this redesign began in 1991, with production of the highest denomination beginning in 1995. Id. ¶ 9.
10. The cost of the design phase for the 1996 redesign was approximately $750,000. At various times during the pre-production phase, from 80 to over 400 employees were involved in the research, design, and planning of the new design. Id. ¶ 9.
11. The design of U.S. currency occurs at a BEP facility in Washington, D.C., and production occurs at BEP facilities in Washington, D.C., and Fort Worth, Texas. Id. ¶ 4.
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The Federal Reserve System 12. The Federal Reserve System ("FRS" or "System") consists of the Board of Governors, an agency of the federal government composed of members appointed by the President, which oversees the activities of the Federal Reserve Banks; twelve regional Federal Reserve Banks, which act collectively as our nation's central bank; and membership in the System for private commercial banks. Id. ¶ 10. 13. The Federal Reserve Board, rather than the BEP, issues Federal Reserve Notes to the Federal Reserve Banks. The Federal Reserve Banks, in turn, distribute Federal Reserve Notes to the public through the nation's depository institutions. Id. ¶ 11. 14. The Federal Reserve System purchases Federal Reserve Notes from the BEP at cost of production. The Federal Reserve Banks sell the notes to depository institutions at face value. Id. ¶ 13. 15. The Federal Reserve System detects worn and counterfeit Federal Reserve Notes and withdraws them from circulation. The FRS destroys worn notes, and forwards counterfeit notes to the United States Secret Service within the Department of the Treasury. Id. ¶ 14. 16. Approximately 95% of the Federal Reserve Notes produced by the BEP are used to replace notes withdrawn from circulation. The Federal Reserve Banks withdraw almost 34 million Federal Reserve Notes each day. Id. ¶ 15. 17. In Fiscal Year 2001, the Federal Reserve Banks withdrew and destroyed 7,727,626,921 Federal Reserve Notes (8,510 tons), with a face value in excess of $86 billion. Id. ¶ 15.
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18. When a new currency design is placed in circulation, the FRS begins the withdrawal and destruction of the old design currency. Id. ¶ 15
Changes Sought by the Plaintiffs: Ramifications for BEP 19. Implementing the currency redesign sought by the plaintiffs in this action would entail financial and administrative burdens in the following areas: research and consultation; planning the redesign; plate engraving and manufacture; purchasing and installing additional equipment; producing the currency; public education; and replacing worn currency. Id. ¶ 21. 20. All of the costs described below would be passed to the Federal Reserve System, which, in turn, would pass the costs to its member banks and other private financial institutions. Banks and other financial institutions would then recover those costs from their commercial and individual customers. Id. ¶ 22. A. Research, consultation, and redesign 21. The introduction of redesigned banknotes requires time for consultation with interested entities, including the U.S. Secret Service, the Federal Reserve Board, and the Department of the Treasury. Id. ¶ 23. 22. Implementing the currency redesign sought by the plaintiffs would involve consultation with external focus groups. Id. ¶ 23. 23. The size of each denomination would be a key issue to be determined in implementing plaintiffs' redesign of the currency. After determining the size of each denomination, the process of designing each denomination would begin. Id. ¶ 24.
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24. Designing different sizes of currency would significantly complicate and lengthen the redesign process, given that the use of different sizes would prevent applying the same design decisions to all denominations. Id. ¶ 25.
25. The redesign process would also be complicated and lengthened by the need to determine how to implement the Braille symbols and the raised printing sought by the plaintiffs. Id. ¶ 25.
26. These initial tasks in implementing plaintiffs' redesign — that is, from size determination to finalizing the design — would take approximately three to six years. Research, consultation, and design would cost between 1 and 2 million dollars. Id. ¶ 26. B. Plate engraving and manufacture
27. Producing redesigned Federal Reserve Notes requires engraving and manufacturing new printing plates. A template of the plates for each denomination is engraved by hand, and metallic printing plates are manufactured based on the hand-engraved templates. BEP employees engrave the templates by hand, and the plates are manufactured in-house by BEP's craftsmen. Id. ¶ 27.
28. The Bureau has approximately 455 printing plates that are presently used in the production of currency. Implementing the redesign sought by the plaintiffs would require replacing approximately one-half of the Bureau's existing currency plates (given that the one-dollar bill, which would not be changed, accounts for approximately half of the Bureau's production). Id. ¶ 28.
29. The engraving and manufacture of new printing plates for plaintiffs' redesign — from the start of engraving experimental designs to the delivery of all new plates necessary to produce
5

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the current numbers of each denomination — would take approximately five to seven years. Engraving and manufacturing the new plates would cost between 3 and 4 million dollars. Id. ¶ 29. C. Purchasing and installing additional equipment
30. The Bureau uses equipment to produce, inspect, and package currency at its production facilities. To implement the currency redesign sought by the plaintiffs, the Bureau would have to acquire additional production equipment, and would have to replace half of its inspection equipment and half of its packaging equipment. Id. ¶ 30.
31. The Bureau's existing production equipment is designed to accommodate the size of the existing printing plates, which currently print 32 notes per sheet of currency paper. Id. ¶ 31.
32. In order to avoid the need to replace at least half of the Bureau's existing production equipment (which would entail designing, purchasing, and installing all new equipment), the printing plates for the redesigned currency would have to be the same size as the plates now in use. Id. ¶ 31.
33. Because the newly-designed bills would be larger than the existing bills, fewer bills would fit on each printing plate, requiring additional printing runs to maintain current production levels. Id. ¶ 31.
34. In order to perform additional printing runs, the Bureau would have to acquire additional production equipment to implement plaintiffs' redesign of the currency. Id. ¶ 31.
35. To implement plaintiffs' currency redesign, the Bureau's facility at Washington, D.C., would have to procure at least two additional intaglio presses, and the Fort Worth facility would
6

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 32 of 40
have to procure at least two additional intaglio presses. The cost of acquiring those four additional intaglio presses would be between 30 and 40 million dollars. Id. ¶ 32.
36. The Bureau is currently in the process of adding new anti-counterfeiting features to the currency, now scheduled for issuance in 2003. Adding these features will require running each sheet of currency through an additional (offset) printing process, using new, sheet-fed equipment which the Bureau has already acquired. Id. ¶ 33.
37. Plaintiffs' redesign would entail printing fewer bills on each sheet, thus increasing the need for the new offset printing equipment in order to maintain current production levels. Id. ¶ 33.
38. To implement plaintiffs' currency redesign, both the Washington, D.C., facility and the Forth Worth facility would each have to procure one additional offset printing press to add the new anti-counterfeiting features to the redesigned bills. The cost of acquiring those two additional offset presses would be between 16 and 21 million dollars. Id. ¶ 34.
39. As part of the production process, the Bureau uses equipment to inspect the bills in order to ensure accurate and uniform output. This equipment examines each bill automatically, using software written for the Bureau by a federal contractor. Id. ¶ 35.
40. Changing the size of the currency, and producing different denominations in different sizes, would require not only changing the physical dimensions of the currency-handling portions of the inspection equipment, but also changing the software that governs the inspection process. Id. ¶ 35.
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41. Varying the sizes of the denominations would eliminate the ability to use the same inspection machines for all denominations. This loss of flexibility would require adding inspection capacity in order to maintain current production levels. Id. ¶ 36.
42. To implement the plaintiffs' currency redesign, the Bureau would have to design, purchase, and install at least one new piece of inspection equipment for its Washington, D.C., facility and at least one new piece of inspection equipment for its Fort Worth facility. The cost of acquiring those two additional inspection machines would be between 16 and 21 million dollars. Id. ¶ 37.
43. After inspection, the bills run through another printing process to add the serial numbers and other identifying marks. The same machines that print serial numbers and identifying marks then cut and package the currency, because security and accountability considerations dictate that the bills be packaged in numerical sequence. Id. ¶ 38.
44. Producing bills of different sizes would require designing and purchasing new equipment (and new software) to add serial numbers and identifying marks and to cut and package the currency. Id. ¶ 39.
45. Eliminating the flexibility of using every machine for every denomination, to perform the tasks described in paragraph 43 above, would require increased capability to maintain current production levels, and replacing existing equipment with more flexible equipment. Id. ¶ 39.
46. To implement the plaintiffs' currency redesign, the Bureau would have to design, purchase, and install ten new pieces of equipment, at each of its production facilities, to print serial numbers and identifying marks and to cut and package the currency. The cost of acquiring those twenty new pieces of equipment would be between 100 and 130 million dollars. Id. ¶ 39.
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Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 34 of 40
47. In addition to the above-stated figures for purchasing additional equipment, acquiring the necessary equipment would entail significant contracting costs. The Bureau would have to undertake a lengthy procurement process for each type of redesigned equipment needed to implement the currency redesign sought by the plaintiffs. Approximately 22 BEP employees, devoting approximately 7,000 man-hours, would be required for this entire process. Id. ¶¶ 4044.
48. Designing new equipment to produce the redesigned currency would cost between 162 and 212 million dollars in contractor payments. Additionally, the Bureau would expend between $1.4 and 2 million in-house to award and administer contracts for the new equipment. A further expenditure of between $7.6 and 10 million could be expected for site preparation for the new and additional equipment. Id. ¶ 44. D. Production of the currency
49. Producing notes of different (and larger) sizes, in different colors, with an embossed numeral and a Braille symbol, would entail costs that are not incurred in producing the existing currency. Id. ¶ 45.
50. Producing larger bills would require more of the specialized inks used in producing currency. Id. ¶ 45.
51. Producing the redesigned currency would mean purchasing more of the distinctive paper used for United States currency, both because larger bills would require more paper and because more of each sheet would be discarded in the production process (given that the size of each sheet of paper would remain the same, to avoid the need to replace approximately half of the Bureau's existing production machinery). Id. ¶ 45.
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Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 35 of 40
52. Other production expenses would also increase due to plaintiffs' redesign, such as maintenance costs for the new equipment described above, additional man-hours for BEP's existing employees involved in production, and depreciation on the new equipment. Id. ¶ 45.
53. The above-described increases in production costs would total between 36 and 45 million dollars per year, at least. Id. ¶ 45.
54. The need to acquire additional equipment would also give rise to a need for additional personnel to operate the new equipment. For the new intaglio printing equipment, approximately 30 additional plate printers and 15 non-craft personnel would have to be recruited and hired. For the new offset presses, approximately 22 additional offset pressmen and 11 non-craft personnel would have to be recruited and hired. For the new currency inspection equipment, approximately 23 bookbinders and 8 non-craft personnel would have to be recruited and hired. For the new numbering and packaging equipment, approximately 14 offset pressmen, 73 bookbinders, and 50 non-craft personnel would have to be recruited and hired. Id. ¶ 46.
55. In summary, to operate the new equipment needed for plaintiffs' redesign of the currency, the Bureau would have to recruit and hire approximately 30 plate printers, 36 offset pressmen, 96 bookbinders and 84 non-craft personnel — for a total of 246 full-time equivalents at a total cost of approximately 15 to 20 million dollars per year. Id. ¶ 46.
56. The above figures do not include certain other increases in the cost of production due to plaintiffs' redesign of the currency. Embossing a numeral would require an additional step in the production process and additional, as yet unidentified equipment. Including a Braille symbol would require newly-designed equipment to imprint a Braille symbol on currency paper. Both the embossing and the Braille symbol could result in additional, as-yet unknown packaging,
10

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handling, and storage expenses given that the embossed area, the Braille symbol, or both would increase the thickness of the note in that location. Id. ¶ 47. E. Public education
57. An extensive public education campaign would be required to advance public acceptance of the redesigned currency. Id. ¶ 48.
58. The Bureau has expended approximately 50 million dollars on public education in relation to the 1996 redesign. Id. ¶ 48.
59. The extensive, worldwide public education necessitated by the change in sizes and other new features sought by the plaintiffs would cost between 70 and 90 million dollars. Id. ¶ 48. F. Replacing worn currency
60. Two of the changes sought by the plaintiffs — the printing of a "raised" (i.e., embossed) denomination numeral and the inclusion of a Braille symbol on each note — would cause the new currency to wear out faster than the existing currency. The additional ink on the embossed numeral would rub off, and the raised dots comprising the Braille symbol would wear away faster than the surrounding paper. Additional wear would result from daily handling as well as machine processing at banks and in vending machines. Id. ¶ 49.
61. A Federal Reserve Note of plaintiffs' redesign would no longer be fit for circulation — and would have to be withdrawn and replaced — when the embossed numeral or the Braille symbol had become sufficiently worn that a blind person could no longer recognize either of those features. Id. ¶ 49.
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62. Currently, on average, a five-dollar bill is withdrawn after approximately two years in

circulation, a ten-dollar bill is withdrawn after approximately three years in circulation, a

twenty-dollar bill is withdrawn after approximately four years in circulation, and both a

fifty-dollar bill and a one-hundred dollar bill is withdrawn after approximately nine years on

circulation. Id. ¶ 50.

63. The inclusion of an embossed numeral and a Braille symbol would reduce the useful

(that is, blind-readable) life of each bill by at least forty percent. Id. ¶¶ 50, 51.

64. Based on the currency needs of the Federal Reserve System during Fiscal Year 2001,

the increased production volume caused by including an embossed numeral and a Braille symbol

on each bill (other than the $1 bill) would increase by between 92 and 109 million dollars per

year the overall costs of producing the country's currency. Id. ¶ 51.

G. Summary

65. The following table summarizes some of the costs described above:

Research, consultation, and redesign $1-2 million

Plate engraving and manufacture

$3-4 million

Purchasing and installing additional equipment

Intaglio presses

$30-40 million

Offset presses

$16-21 million

Inspection equipment

$16-21 million

Numbering, cutting, and packaging equipment

$100-130 million

In-house contract expenses

$1.4-2 million

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Site preparation

$7.6-10 million

Public education

$70-90 million

Total initial costs

$245 - 320 million

Production costs

$36-45 million (per year)

New personnel costs

$15-20 million (per year)

Replacing prematurely worn currency $92-109 million (per year)

Total increase in annual costs

$143 - 174 million

Id. ¶ 52.

66. The above table does not include potential costs that are not estimated above, such as

the increased cost of printing each denomination in a different color, the additional production

and material costs of embossing a numeral or including a Braille symbol, nor the costs of

additional equipment needed for these two tactile features. Id. ¶ 52.

Ramifications of Plaintiffs' Changes for the Federal Reserve System

67. In addition to the above-described burdens on the Bureau of Engraving and Printing,

the currency changes that plaintiffs seek would impose very significant burdens on the Federal

Reserve System. Id. ¶ 54.

68. The Federal Reserve System's tasks of circulating new and fit Federal Reserve Notes,

withdrawing worn notes, and identifying counterfeit notes are performed automatically, using

sophisticated processing and authentication systems. Id. ¶ 54.

69. Plaintiffs' redesign of the currency would, at the very least, require the FRS to adjust

its equipment and sensors to recognize the new features of the redesigned Federal Reserve Notes.

Id. ¶ 54.

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Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 39 of 40
70. The FRS would be required to purchase new equipment to perform these tasks on notes of different sizes (rather than only to adjust its equipment and sensors), if the largest redesigned bill exceeded the size parameters of existing equipment. Id. ¶ 54.
71. Because the one-dollar note would be the smallest in size, it is likely that plaintiffs' redesign of the currency would require the FRS to purchase completely new equipment. Id. ¶ 54.
72. The FRS's cost of purchasing new Federal Reserve Notes from the BEP would increase as a result of any decrease in the useful life of Federal Reserve Notes due to the addition of the Braille symbol and raised numeral requested by the plaintiffs. Id. ¶ 55.
73. The FRS's currency-related costs are passed to its member depository institutions. Those institutions, in turn, pass those costs to their customers. Thus, the increased costs to the FRS that would result from implementing plaintiffs' redesign of Federal Reserve Notes, including the cost of replacing or modifying equipment and increased orders for new notes due to decreased usable life of the notes, would be borne by the public through increased bank fees, lending rates, and cost of services. Id. ¶ 56.
Ramifications of Plaintiffs' Changes for the Private Sector 74. The currency redesign sought by the plaintiffs would impose significant burdens on the private sector. Id. ¶ 57. 75. A change in the size of the currency would require replacing or altering automated teller machines and automatic vending machines. Id. ¶ 57. 76. The changes required by plaintiffs' redesign of the currency would require thousands of hours of design, planning, and labor, and millions of dollars in labor and equipment. Id. ¶ 57.
14

Case 1:02-cv-00864-JR Document 8-1 Filed 08/30/2002 Page 40 of 40

Dated: August 29, 2002

Respectfully submitted,
ROBERT D. McCALLUM, JR. Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel
Attorneys, Department of Justice Civil Division, Room 986 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8202 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

15

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 Case 1:02-cv-00864-JR Document 14 Filed 03/31/2003 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,
Plaintiffs,
v.
PAUL H. O'NEILL, Secretary of the Treasury, et al.,
Defendants.

: : : : : : Civil Action No. 02-0864 (JR) : : : : :

MEMORANDUM ORDER Plaintiffs are a number of visually impaired and blind individuals and the American Council for the Blind, an organization that advocates for the blind and visually impaired. Their submission is that the Department of Treasury's failure to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. They seek a declaratory judgment to that effect, and they seek an order requiring the defendants to implement specific design changes to U.S. currency, such as different sizes, colors, and/or the addition of Braille or other tactile cues. The defendants move for summary judgment. Defendants assert that the plaintiffs cannot prevail as a matter of law, because the Rehabilitation Act does not require an accommodation that imposes "undue financial or administrative burdens." Alexander v. Choate, 469 U.S. 287, 298-99 (1985); Southeastern Cmty College v. Davis, 442 U.S. 397, 412 (1979). That assertion may turn out to be correct, given the Bureau of

Case 1:02-cv-00864-JR Document 14 Filed 03/31/2003 Page 2 of 2
Engraving and Printing Director's estimate that it would cost $143-174 million a year to design and produce paper money with different sizes for different denominations, Ferguson Decl. at ¶ 17, but the present record does not provide a standard of comparison to determine whether expenditures to accommodate the needs of the blind and visually impaired would be unreasonable relative to expenditures that have been made to modify currency design and production for other purposes. Mr. Ferguson's declaration, moreover, is unchallenged because there has been no discovery yet in this case.
Defendants also assert that the Secretary is vested with unreviewable discretion concerning the design of currency by 12 U.S.C. § 418, but they have not supported that argument. Nor, indeed, has either side addressed the issue of whether Section 504's prohibition of discrimination or exclusion from "any program or activity conducted by any Executive agency . . . ." applies to the design and production of currency in the first place.
The motion for summary judgment [#8] is denied. The Clerk is directed to set a status conference.
JAMES ROBERTSON United States District Judge
- 2 -

 
 Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN COUNCIL OF THE BLIND et.al., )

Plaintiffs,

)

) CIVIL ACTION NO.

v.

) 1:02CV00864 JR

)

PAUL H. O'NEILL Secretary of the Treasury, et.al.,)

Defendants.

)

__________________________________________)

________________________________________________________________________

REPLY MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dated: October 31, 2002

Jeffrey A. Lovitky D.C. Bar No. 404834 1735 New York Ave., NW, Ste. 700 Washington, DC 20006 (202) 429-3393 Attorney for Plaintiffs American Council of the Blind, et. al.

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 2 of 17
TABLE OF CONTENTS
I. THE DESIGN OF PAPER CURRENCY IS NOT COMMITTED TO THE SOLE DISCRETION OF THE DEFENDANT…………………………1
II. DEFENDANT’S UNDUE BURDEN ARGUMENT ADDRESSES ONLY ONE FORM OF THE RELIEF REQUESTED BY PLAINTIFF………...4
III. CHANGING THE SIZE OF PAPER CURRENCY WOULD NOT RESULT IN AN UNDUE BURDEN TO THE GOVERNMENT………….5
IV. DEFENDANT IS NOT PRECLUDED FROM RE-DESIGNING THE $1.00 BILL………………………………………8
V. THE COURT SHOULD DEFER ITS RULING ON DEFENDANT’S MOTION UNTIL AFTER PLAINTIFF HAS HAD AN OPPORTUNITY TO CONDUCT REASONABLE DISCOVERY…...9
CONCLUSION…………………………………………………………………………..10

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 3 of 17
Pursuant to the schedule established by the Court, Plaintiff submits its
memorandum in reply to the Summary Judgment Memorandum of Defendant. For the
reasons stated below, Plaintiff asserts that Defendant’s Motion for Summary Judgment
should be denied.
I. THE DESIGN OF PAPER CURRENCY IS NOT COMMITTED TO THE SOLE DISCRETION OF THE DEFENDANT The Defendant’s motion for summary judgment is largely based upon its assertion
that the design of paper currency “is statutorily committed to the sole discretion of the
Secretary…” Def. Mem. at 2. As will be shown below, this is an argument which is
simply not supported by the applicable legal authority.
Defendant refers to 12 U.S.C §418 in support of the proposition that the Secretary
has unfettered discretion with respect to the design of paper currency. This statute
authorizes the Secretary to print banknotes “in the form and tenor as directed by the
Secretary of the Treasury…” However, Section 504 of the Rehabilitation Act itself very clearly applies to all
the operations of each executive agency. Thus, the statute states that
“No otherwise qualified individual with a disability in the United States, as defined in section 7(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”
(b) "Program or activity" defined. For the purposes of this section, the term "program or activity" means all of the operations of-- (1) (A) a department, agency, special purpose district, or other instrumentality of a State or of a local government;…. (Emphasis added). See 29 U.S.C. § 794.
Accordingly, the statute by its terms applies to “all of the operations” of the Department of the Treasury, without exception.

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 4 of 17
Equally significant, Treasury Department regulations implementing the Rehabilitation Act specifically state that the Act applies to all activities conducted by the Department, with the sole exception of activities conducted outside of the United States. Thus, 31 CFR §17.102 states as follows: “This part applies to all programs or activities conducted by the agency, except for programs or activities conducted outside the United States that do not involve individuals with handicaps in the United States.” (Emphasis added).
As such, government counsel is now taking a position in this litigation which is directly contrary to the Department’s own regulations. Such a position on the part of the Defendant is simply untenable. See Alexander v. Choate, 469 U.S. 287, 304, n. 24 (1985) (regulations implementing Section 504 constitute an important source of guidance).
Moreover, the argument that the design of paper currency is committed solely to the discretion of the agency would preclude any meaningful judicial review of actions taken by the Defendant. This is contrary to the general rule that, absent a clear Congressional mandate to the contrary, agency action taken in violation of law is subject to meaningful judicial review.
For example, in Traynor v. Turnage, 485 U.S. 535, 99 L. Ed. 2d 618, 108 S. Ct. 1372 (1988), the Supreme Court was asked to decide whether a VA regulation stating that disability benefits would not be paid for alcoholism constituted a violation of the Rehabilitation Act. The government asserted that its determination was not subject to judicial review under the terms of 38 U. S. C. § 211(a), which bars judicial review of "the
2

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 5 of 17
decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans."
The Supreme Court noted a “strong presumption that Congress intends judicial review of administrative action,” which presumption may be overcome only upon a showing of “clear and convincing evidence of a contrary legislative intent", citing to Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), and Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). Id. at 542.
In the instant case, nothing in either the statutory or regulatory framework cited by Defendant evinces clear and convincing evidence that Congress intended to preclude judicial review under Section 504 of the design of paper currency. Indeed, the opposite appears to be the case. The statute and implementing regulations specifically and unequivocally apply to all activities of the Department of Treasury, except those occurring outside of the United States. As such, any argument that the design of paper currency is unreviewable under Section 504 is completely without merit.
Finally, Defendant argues that even if the Secretary’s design of paper currency is reviewable under the Rehabilitation Act, the specifics of any such re-design should be within the sole decision of the Secretary. Def. Mem. at 17. Thus, Defendant objects to allowing this Court to participate in any re-design decisions to be made by the Secretary.
Defendant’s argument in this regard is without merit. Assuming that this Court has authority to review the Secretary’s design of paper currency under the Rehabilitation Act, the Court necessarily also has the authority to review the specifics of any such redesign to determine whether it complies with the statute.
3

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 6 of 17
Moreover, Plaintiff’s have not requested that this Court impose upon the Secretary one fixed design for all paper money. Rather, Plaintiff’s are merely seeking an order that the Secretary comply with Section 504 in the redesign process, a process which is in any event ongoing even without regard to the changes sought by the Plaintiff. See Ferguson Declaration at ¶ 33 (redesign to be implemented by 2003 for anti-counterfeiting purposes). Clearly, this Court clearly has jurisdiction to order such appropriate relief as may be required to ensure that there are no more continuing violations of Section 504 of the Rehabilitation Act. II. DEFENDANT’S UNDUE BURDEN ARGUMENT ADDRESSES ONLY
ONE FORM OF THE RELIEF REQUESTED BY PLAINTIFF Defendant asserts that the changes sought by Plaintiff in the design of currency would constitute an undue financial and administrative burden, and would not therefore be reasonable. Def. Mem. at 5-16. In support of this assertion, Defendant submits a Declaration from Mr. Thomas Ferguson, Director of the Bureau of Engraving and Printing. However, Mr. Ferguson’s Declaration is directed almost exclusively to Plaintiff’s request that the denomination of paper currency be differentiated by size. The Ferguson Declaration virtually ignores the several alternative forms of relief requested by Plaintiff, include placement of a single high contrast denomination numeral on the back of bills, use of colors to differentiate between denominations, placement of tactile cues on currency, etc.1
1 Mr. Ferguson refers to the possibility of placing tactile cues on currency in a highly conclusory form at the end of his Declaration. Thus, Mr. Ferguson “estimates” that the inclusion of a tactile feature would cost an additional 92-109 million dollars per year. Ferguson Declaration at ¶ 51. However, Mr. Ferguson readily concedes that the Bureau has never really examined this issue in a meaningful way. Indeed, Mr. Ferguson admits
4

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 7 of 17
As such, Mr. Ferguson’s assertions go only to the issue of changing the size of currency. Mr. Ferguson’s Declaration offers no support for the Defendant’s assertion that any of the other forms of relief requested by Plaintiff would impose an undue burden on the government III. CHANGING THE SIZE OR OTHER FEATURES OF PAPER CURRENCY
WOULD NOT RESULT IN AN UNDUE BURDEN TO THE GOVERNMENT Defendant's argument that changing the size of paper currency would result in an
undue cost burden is based upon the data furnished by Mr. Ferguson. However, Mr. Ferguson’s Declaration rests primarily upon a series of unsupported assumptions. Mr. Ferguson offers numerous cost estimates without providing any indication as to the source of those estimates. Indeed, Mr. Ferguson concedes that many of the costs referred to in his Declaration are “difficult to estimate.” See Ferguson Declaration, ¶ 18.
Moreover, the cost estimates contained in Mr. Ferguson’s Declaration are based upon the assumption that the newly designed bills would be larger than existing currency. See Ferguson Declaration, ¶ 31 (“increased cost of purchasing and installing equipment results from the fact that fewer of the larger bills would fit on each printing plate”); ¶ 45 (“producing notes of larger size would require more use of specialized inks and purchasing more paper”); ¶ 54 (“additional costs to be incurred by the Federal Reserve if the largest redesigned bill exceeded the parameters of existing equipment”). However, it is altogether feasible that any re-design could result in significantly smaller sized bills,
that “Without testing, it is difficult to know the precise degree…” by which the costs of producing currency would be increased as a result of adding a tactile feature. Ferguson Declaration at ¶. 50. Paragraph 47 of the Ferguson Declaration also states that the expenses involved in placing tactile features on bills “are too uncertain at this time to estimate the resulting costs.” The vagueness of Mr. Ferguson’s Declaration deprives it of any validity in supporting the Defendant’s motion for summary judgment.
5

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 8 of 17
thereby avoiding the additional costs cited in Mr. Ferguson’s Declaration.2 Indeed, BEP may actually achieve significant cost savings by reducing the size of
paper currency. Thus, BEP would use less paper, less ink, and would be able to produce more of the higher denomination notes in the same area of paper, thereby improving operating efficiency. Additionally, most other countries have different size notes, and these countries do not appear to have experienced any substantial problems. See Currency Features for Visually Impaired People, National Research Council, 1995. 3
Defendant argues that because it is statutorily precluded from redesigning the $1.00 note, any redesigned higher denomination notes would necessarily be larger than the existing $1.00 note. However, there is no reason that higher denomination notes could not be smaller than lower denomination notes, thereby resulting in paper and ink cost savings to the government. This is the case in coinage as a dime is smaller than a nickel. Defendant’s statement that an unscrupulous vendor could fold a $1.00 bill so as to shape it to the dimensions of a higher denomination note is absurd. A blind person could easily detect that a note had been folded, thereby defeating the design of such an unscrupulous vendor. In any event, Defendant concedes that the possibility of such a fraud occurring is remote. See Ferguson Declaration at ¶20.
2 Ironically, Defendant argues that Plaintiff’s should not be permitted to argue the issue of whether the benefits of re-designing the currency outweigh its supposed costs. Defendant argues that the Supreme Court has never engaged in any such comparison in deciding cases under the Rehabilitation Act. Def. Mem at 15-16. This is a particularly anomalous argument given that Defendant’s position rests upon its assertion that the costs involved in re-designing currency would impose an undue burden. 3 This study, commissioned by the Department of the Treasury, may be read in its entirety at http://www.nap.edu/catalog/4828.html?se_side.
6

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 9 of 17
Defendant reliance upon the Supreme Court’s decision in Southeastern Community College v. Davis, 442 U.S. 397 (1979) is completely misplaced. See Def Mem at pp. 6-8. In Southeastern Community College v. Davis, supra, the Supreme Court held that requiring admission of a deaf student into the institution’s nursing program would have lowered the school’s standards, and would potentially result in adverse consequences to patient safety. There is no such analogy in this case. Plaintiffs are not seeking to lower the standards by which currency is produced. Rather, all that is being sought is a reasonable accommodation to the needs of blind and low vision individuals.
Similarly, Defendants reliance upon Alexander v. Choate, 469 U.S. 287 (1985) is also misplaced. In Alexander v. Choate, supra, the Supreme Court held that imposition of equal medical benefits for both disabled and non-disabled individuals had no exclusionary impact on disabled individuals. However, this is not the case in the instant litigation. Defendant’s design of paper money completely excludes individuals with certain categories of disabilities from participating in the benefits of the U.S. currency program.
Finally, as noted by Defendant, any costs associated with changing the size of paper currency would be borne by third parties, and not by the government. See Ferguson Declaration at ¶¶ 7, 22. Costs associated with currency production are paid by commercial banks through an account with the Federal Reserve. See Ferguson Declaration at ¶ 7. As such, Defendant can not properly assert an undue burden defense when in fact the government is not responsible for paying any such costs.
7

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 10 of 17
Additionally, any increased costs in manufacturing paper currency would be miniscule when compared to the overall size of the U.S. commercial banking system. Defendant’s argument that the richest nation in the world can not afford to modify its currency so as to be useable by persons with visual disabilities is simply ludicrous, and should not be seriously considered by this Court. This is particularly true when considering that the majority of countries in the world issue different sized notes. See Currency Features for Visually Impaired People, 1995. Table D-1, Summary of Currency Features for Visually Disabled People Used in Currency from 171 Issuing Authorities around the World.4
It must further be emphasized that the redesign sought by Plaintiff is in the context of the Treasury’s overall plan to re-design the currency by 2003. See Ferguson Declaration at ¶ 33. Therefore, many of the redesign costs concerning which Defendant so vociferously complains are likely to be incurred in any event.
IV. DEFENDANT IS NOT PRECLUDED FROM RE-DESIGNING THE $1.00 BILL Defendant asserts that Congress has precluded it from redesigning the $1 note.
However, the Congressional purpose was exactly the opposite. Thus, the Conference Report on H.R. 4104, Treasury and General Government Appropriations Act, 1999, makes explicit the Congressional intent with respect to the $1 banknote. The Conference Report states as follows:
The conferees remain concerned about the cost associated with producing special anti-counterfeiting properties for the
4 This study may be read in its entirety at http://www.nap.edu/catalog/4828.html?se_side
8

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 11 of 17
estimated 6 billion circulating $1 Federal Reserve Notes. As a result, the conferees do not believe the Bureau of Engraving and Printing should undertake cost prohibitive anti-counterfeiting changes to the $1 note. However, the conferees do believe it is important to update the currency, such as making minor modifications to assist the visually impaired. Therefore, the conferees direct the Department of the Treasury and the Bureau of Engraving and Printing not to pursue redesign of the $1 Federal Reserve Note to combat international counterfeiting threats, but to only make minor design enhancements to the $1 note for the visually impaired and elderly population, provided it has no effect on the use of $1 Federal Reserve Notes with existing bill accepting machinery.
See Conference Report on H.R. 4104, Treasury and General Government Appropriations
Act, 1999, 144 Cong. Rec, H 9870, October 7, 1998.
It is evident from the language of the Conference Report that Congress did not
want the $1.00 note to be re-designed for anti-counterfeiting purposes. However, it is
equally clear that Congress encouraged the Treasury to modify the $1.00 note for
purposes of assisting the visually disabled.
The language of the Conference Report further undermines the notion that the
Secretary has no obligation to modify paper currency for purposes of assisting the
visually impaired. Indeed, the Congressional intent makes explicit that which the
Secretary denies, i.e., the Secretary’s obligation to consider the interest of the disabled
community in designing U.S. paper money.
V. THE COURT SHOULD DEFER ITS RULING ON DEFENDANT’S MOTION UNTIL AFTER PLAINTIFF HAS HAD AN OPPORTUNITY TO CONDUCT REASONABLE DISCOVERY
Defendant’s undue burden defense is based primarily on statements contained in
Mr. Ferguson’s Declaration concerning the costs of changing the size of paper currency.
9

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 12 of 17
As noted above, Mr. Ferguson fails to provide any documentation supporting the costs cited in his Declaration. Rather, Mr. Ferguson’s Declaration is largely conclusory. Absent further discovery, Plaintiff has no means to ascertain the reliability of the “cost estimates” contained in the Declaration submitted by Mr. Ferguson.
It should further be noted that there is little expertise outside of the Bureau of Engraving and Printing in connection with the cost of printing money. As such, the cost estimates cited by Mr. Ferguson lie exclusively within the knowledge of the BEP. Absent outside expertise, the only means for Plaintiff to examine the validity of Mr. Ferguson’s estimates is through conducting discovery. For this reason, Plaintiff believes that the Court should defer any ruling on Defendant’s motion until after Plaintiff has had an opportunity to cross-examine the Defendant’s assertions, and to conduct such discovery as may be required.
CONCLUSION For the reasons stated above, Defendant’s Motion for Summary Judgment should be denied. In the alternative, this Court should defer ruling on Defendant’s Motion for Summary Judgment until such time as Plaintiff has had an opportunity to conduct such discovery as may be required.
DATED: October 31, 2002
10

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 13 of 17 Respectfully submitted, /s JEFFREY A. LOVITKY D.C. Bar No. 404834 Law Office of Jeffrey A. Lovitky 1735 New York Ave., NW, Ste. 700 Washington, DC 20006 (202)429-3393 Attorney for Plaintiff
11

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 14 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN COUNCIL OF THE BLIND et.al., )

Plaintiffs,

)

) CIVIL ACTION NO.

v.

) 1:02CV00864 JR

)

PAUL H. O'NEILL Secretary of the Treasury, et.al.,)

Defendants.

)

__________________________________________)

PLAINTIFF’S RESPONSE TO DEFENDANT’S RULE 7.1 STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
Pursuant to LCvR 7.1(h) of the local rules of United States District Court for the District of Columbia, Plaintiff hereby responds to Defendant’s Rule 7.1 Statement of Material Facts Not In Dispute (“Defendant’s Statement”), in accordance with Rule 56 of the Federal Rules of Civil Procedure. Responding specifically to the numbered paragraphs of Defendant’s Statement and using the same paragraph numbering, Plaintiff responds to the following specific assertions in Defendant’s Statement. 1. Denies Defendant’s suggestion that the BEP is solely responsible for the
production of currency to the extent that Defendant suggests that it is not subject to the requirements of Section 504 of the Rehabilitation Act in performing this function. 19. Denies that implementing the changes sought by Defendant would constitute an undue burden 24. Denies that changing the size of currency would significantly complicate the process or render it more expensive. Indeed, BEP may actually achieve

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 15 of 17
significant cost savings by re-designing currency to be smaller than the existing notes. Thus, BEP would use less paper, less ink, and would be able to produce more notes in the same area of paper, thereby improving operating efficiency. Additionally, most other countries have different size notes, and these countries do not appear to have experienced any substantial problems. 26. Denies that implementing redesign of currency would take 3-6 years. A National Academy of Sciences study commissioned by the Department of the Treasury found that dimensional changes, large numerals, and appropriate use of color, could be implemented within 1-3 years. See Currency Features for Visually Impaired People, National Research Council, 1995, Chapter 6, Implementation Strategies. Further denies the cost estimates citied by Defendant. No supporting documentation for the cost estimates presented by Defendant are contained in the Ferguson Declaration. Rather, the Ferguson Declaration is conclusory in nature, and is based on highly speculative estimates of future costs. Additionally, the estimates contained in the Ferguson Declaration are premised upon the assumption that any redesign would necessarily result in the product of larger than existing banknotes, thus rendering obsolete existing manufacturing and inspection equipment. However, the accommodations sought by Plaintiff could just as easily result in the production of smaller banknotes, thereby avoiding the additional costs cited by Mr. Ferguson. Additionally, the production of smaller banknotes would actually result in a net cost savings to the government due to the use of lesser quantities of key materials used in the production process, such as ink and paper.
2

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 16 of 17
28-30. Denies for the reasons states in ¶ 26. 33-35. Denies for the reasons states in ¶ 26. 37-38. Denies for the reasons states in ¶ 26. 40-42. Denies for the reasons states in ¶ 26. 44-55. Denies for the reasons states in ¶ 26.
56. Denies for the reason that Defendant’s estimate of the cost of placing tactile cues on currency is highly speculative. Defendant admits that it has never conducted any testing to determine what steps would be involved in the placing of a tactile cue on currency. Defendant further concedes that the cost of inclusion of such features on bills is too uncertain at this time to estimate. 59 Denies for the reason that Defendant provides no basis for its cost estimate of a public education campaign, and further that Defendant would be required to furnish such a public education campaign in any event upon the occasion of its upcoming redesign. 60 Denies for the reason stated in ¶ 56. 63-64 Denies for the reason stated in ¶ 56. 65-67 Denies for the reasons stated in ¶¶ 26 and 56. 69. Denies for the reasons stated in ¶¶ 26 and 56. 70. Denies to the extent that the redesign sought by Plaintiff would not require larger
bills than currently being produced. 71. Denies as the one-dollar note need not be smaller in size than higher
denomination notes. 72. Denies for the reasons stated in ¶ 56. 74-76 Denies for the reasons stated in ¶¶ 26 and 56.
3

Case 1:02-cv-00864-JR Document 10 Filed 10/30/2002 Page 17 of 17 DATED: October 31, 2002
Respectfully submitted, /s JEFFREY A. LOVITKY D.C. Bar No. 404834 Law Office of Jeffrey A. Lovitky 1735 New York Ave., NW, Ste. 700 Washington, DC 20006 (202)429-3393 Attorney for Plaintiff
4

 
 Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.)

)

Plaintiffs,

)

) CIVIL ACTION NO.

v.

) 1:02CV00864 JR

)

HENRY M. PAULSON, JR.

)

Secretary of the Treasury,

)

)

Defendant.

)

PLAINTIFFS RESPONSE TO DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES REGARDING FINAL JUDGMENT
During the status conference on September 4, 2008, the Court advised that plaintiffs could respond to the defendant’s memorandum pertaining to the appropriateness of injunctive relief in this case. Plaintiffs respond as follows:
I. An Injunction Is Appropriate As Defendant Is Not Taking Appropriate Corrective Action Defendant states that it is inappropriate to award injunctive relief because the Court should assume that the Secretary is already taking corrective action. Docket # 88, Def. Mem. at pp. 1-5. Plaintiffs wish this were true. However, it is not true for the reasons stated in the sealed

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 2 of 8
memorandum furnished to the Court on September 15, 2008. See Docket No. 86.
That Plaintiffs have suffered irreparable injury cannot be disputed. Irreparable injury is experienced whenever a blind or visually impaired person hands over the wrong denomination, or receives incorrect change. Irreparable injury is also suffered by virtue of the fact that blind and other visually impaired persons are completely dependent “upon the kindness of strangers” whenever they use currency. Am. Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 59 (D.D.C. 2006).
Moreover, the government’s assertion that a mandatory injunction is inappropriate because there are no clearly non-discretionary duties to enforce is without merit. As noted in Wilbur v. U.S. ex rel. Kadrie, 281 U.S. 206, 218 (1930) mandamus may be “[e]mployed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way…”. See also Work v. United States, 267 U.S. 175, 184 (1925).
The mandamus statute has been employed to compel officials to perform their statutory and regulatory duties, without directing them as to the manner of performance. See Pennsylvania by Sheppard v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11, 27 (3rd Cir. 1975) (mandamus used to compel
2

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 3 of 8
Secretary to enforce provisions of a statute which requires an element of discretion. The court noted that mandamus “may issue to require the exercise of permissible discretion, although the manner in which the discretionary act is to be performed is not to be directed by the court” (internal quotations omitted); Workman v. Mitchell, 502 F.2d 1201 (9th Cir, 1974) (mandamus available to compel prison officials to comply with their constitutional duties in administering discipline, even if the precise contours of those duties are not prescribed); Carpet, Linoleum & Resilient Tile Layers, etc. v. Brown, 656 F.2d 564, 566 (10th Cir. 1981) (mandamus employed to require adherence to statutory duties which are generally left to the agency’s discretion when there exists “standards delimiting the scope or manner in which such discretion can be exercised”, quoting Davis Associates, Inc. v. Secretary, Department of Housing and Urban Development, 498 F.2d 385, 389 & n.5 (1st Cir. 1974)); Naporano Metal & Iron Co. v. Secretary of Labor, 529 F.2d 537, 542 (3rd Cir. 1976) (mandamus may be employed even when the performance of an act is committed to agency discretion).
Plaintiff’s proposed order seeks to compel the Treasury to adhere to its obligations under Section 504, without attempting to direct the manner of performance. In effect, plaintiffs proposed order would remand the matter back to the Secretary to implement an appropriate accommodation in
3

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 4 of 8
accordance with the regulations contained in 31 C.F.R. Part 17. These regulations merit special deference, as they were mandated by statute, and the responsible congressional committees and the Congress itself endorsed them in their final form. 29 U.S.C. § 794(a); Conrail v. Darrone, 465 U.S. 624, 634 (1984). 1
The broad and flexible nature of the district court’s equitable powers has long been recognized. Brown v. Board of Educ., 349 U.S. 294, 300 (1955). This is especially true when a significant public interest is involved in the litigation, Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946), or when responsible officials default on their obligation to furnish an acceptable corrective action plan. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (noting the broad authority of the district courts to fashion remedies in school desegregation cases when the local authorities default in their obligation to proffer an acceptable remedy).
The Secretary in this case has defaulted on his obligation to submit an acceptable corrective action plan for the reasons stated in the sealed memorandum furnished with this Court. See Docket No. 86. The Declaration provided by the BEP Director dated August 28, 2009 was also
1 These Treasury regulations are an adaptation of and virtually identical to the prototype coordination regulations established by the Department of Justice. See 56 FR 40781, August 16, 1991.
4

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 5 of 8
deficient in that it did not contain any time frames for coming into compliance with Section 504. See Declaration filed August 29, 2008, Document # 80-1; See also Transcript of Status Conference at 5-6 (Sept. 4, 2008).
The Secretary’s long record of inaction provides little assurance that prompt remedial action will be taken to rectify the ongoing discrimination which must be remedied in this case. As such, this Court is well within its equitable powers to order injunctive relief.
II. The First Paragraph of Plaintiffs Proposed Order Requiring the Secretary to Take Corrective Action Without Unreasonable Delay Is an Appropriate Exercise of Injunctive Relief Defendant further objects to the first paragraph of the order proposed by plaintiff on September 15, 2008, which would require that the Secretary “without unreasonable delay take such measures as are required to bring currency into compliance with Section 504 of the Rehabilitation Act.” The Secretary asserts that this provision would require redesign of the currency itself, as opposed to furnishing external note tellers. Def. mem. at 7. The order proposed by plaintiff would not absolutely preclude the use of external note tellers. However, the Secretary should be cognizant of the prohibition against providing “different or separate [s]ervices to individuals with handicaps … than is provided to others unless such action is necessary
5

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 6 of 8
to provide qualified individuals with handicaps with [s]ervices that are as effective as those provided to others.” 31 C.F.R. ¶17.130(b)(1)(iv).2
Plaintiffs have expressed throughout this litigation serious reservations concerning the practicality, reliability, and effectiveness of electronic readers. Plaintiffs believe that these devices also have the negative effect of segregating blind persons from the mainstream by virtue of being required to use an external device to denominate currency. This is not consistent with the overall purpose of Section 504, which is to promote the integration of disabled persons into society. 29 U.S.C. §701(b)(1).
Plaintiffs are apprehensive that the Secretary will use court mandated time frames as a justification for a remedy which is based on external note tellers. Redesigning the currency may require more time than would the furnishing of external note tellers. However, it is worth spending the extra time to achieve a result which is consistent with the purposes of the statute. The ACB does not believe that furnishing external note tellers would represent an acceptable conclusion to this litigation, merely because such an
2 The Secretary should also be mindful of the fact that the vast majority of the world’s currencies incorporate features which permit blind and other visually impaired persons to distinguish between denominations. Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1262 (D.C. Cir. 2008). It is simply inconceivable that the United States cannot do the same.
6

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 7 of 8
accommodation could be implemented more expeditiously than redesigning the currency itself.
III. The Remaining Provisions of the Order Proposed By Plaintiffs Are Unobjectionable Defendant objects to ¶ 5 of plaintiffs proposed order, which would require a determination by either the Secretary or the Deputy Secretary to exempt a redesign from the order when required to combat an “immediate” counterfeiting threat. Defendant asserts that requiring a determination by the Secretary or Deputy Secretary “would require an additional administrative step and thus more time.” Def. Mem. at p. 11. However, defendant states in the preceding sentence that as a “redesign of currency requires some time … it makes little sense to speak of an "immediate" redesign.” Id. If there is no such a thing as an “immediate redesign”, then we do not perceive the basis for defendant’s objection to requiring a determination by the Secretary or Deputy Secretary. Plaintiffs also believe that the determination referred to in ¶ 5 should be filed with the Court, and have no objection if this filing were made in camera or under seal when necessary.3
3 Defendant also objects to the use of the word “scheduled” in paragraph 2 of Plaintiffs proposed order filed on September 15, 2008. Def. Mem. at pp. 10-11. Defendant is correct in stating that major redesigns are not on any “precise schedule.” Nonetheless, beginning in the late 1980’s, the Treasury established a strategy to redesign U.S. currency every 7 to 10 years. See attached Testimony of Larry R. Felix, Director Bureau of Engraving and
7

Case 1:02-cv-00864-JR Document 89 Filed 09/21/08 Page 8 of 8
Defendant also objects to ¶ 8 of plaintiffs proposed order which
permits public comments on the progress reports to be submitted by the
Secretary. During the status conference on September 4, 2008, the Court
noted that it has already received numerous comments from the public. See
Transcript of Status Conference at 3 (Sept. 4, 2008). The Court further
noted that plaintiffs should be at liberty to make any motions they deem
necessary based on their review of the status reports. Id. at p. 16. Indeed,
plaintiffs very much seek an opportunity to comment on the process when
appropriate to ensure that it is being properly implemented.
Dated: September 21, 2008
Respectfully Submitted
___/s/_______________ JEFFREY A. LOVITKY D.C. Bar No. 404834 1776 K Street, NW, Ste. 800 Washington, DC 20006 (202) 429-3393 Attorney for Plaintiffs
Printing, before the House Financial Services Subcommittee, July 30, 2008, p. 4. There have been two scheduled currency redesigns in the past 12 years. The 1996 redesign involved the $5, $10, $20, $50 and $100 notes. Docket # 33, Declaration of Thomas Ferguson dated August 30, 2005, ¶ 4. The 2004 redesign involved the $10, $20, $50, and $100 notes. Id. at ¶ 6. The new $100 note which will likely be issued later this year was actually part of the 2004 redesign. Id. The intent of the proposed order was to require the Secretary to implement an accommodation as part of a major currency redesign, which is scheduled to occur every 7-10 years.
8

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.)

)

Plaintiffs,

)

) CIVIL ACTION NO.

v.

) 1:02CV00864 JR

)

HENRY M. PAULSON, JR.

)

Secretary of the Treasury,

)

)

Defendant.

)

EXHIBIT
TESTIMONY OF LARRY R. FELIX, DIRECTOR BUREAU OF ENGRAVING AND PRINTING, BEFORE THE HOUSE FINANCIAL SERVICES SUBCOMMITTEE, JULY 30, 2008

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 2 of 9
TESTIMONY OF LARRY R. FELIX, DIRECTOR BUREAU OF ENGRAVING AND PRINTING
UNITED STATES DEPARTMENT OF THE TREASURY
BEFORE THE HOUSE FINANCIAL SERVICES SUBCOMMITTEE ON DOMESTIC AND INTERNATIONAL MONETARY POLICY, TRADE AND TECHNOLOGY
To be submitted for the record July 30, 2008
Chairman Gutierrez, ranking member Paul and members of the subcommittee: Thank you for holding this hearing and inviting me to testify. I appreciate the opportunity to discuss the operations of the Bureau of Engraving and Printing (BEP) and expand upon our efforts to study, test and implement measures to help those who are blind and visually impaired more readily identify paper currency denominations.
MISSION AND OVERVIEW OF THE BUREAU OF ENGRAVING AND PRINTING
The BEP is the security printer for the United States. While our primary product is Federal Reserve banknotes, we also produce other security documents on behalf of Federal agencies. The Bureau produces billions of Federal Reserve notes and other products such as passport documents each year.
Financed through an industrial revolving fund; the BEP does not receive annual appropriations from the Congress. Instead, our customers reimburse the Bureau for the products we produce. By far, our largest client is the Federal Reserve System. This year

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 3 of 9
alone, the BEP will manufacture over 7 billion Federal Reserve notes. The Bureau works very closely with our primary customer, the Federal Reserve System, to ensure that the U.S. paper currency program meets rigorous quality, cost and design specifications.
The Bureau operates from two locations – the Washington, D.C. headquarters facility located at 14th and C Streets, S.W. and the Western Currency Facility in Forth Worth, Texas. The BEP’s workforce numbers just over 2,000 and all employees are career civil servants.
THE U.S. CURRENCY PROGRAM – A SHARED RESPONSIBILITY
The currency program of the United States is a shared responsibility that demands high levels of cooperation and coordination between several Federal agencies. The Department of the Treasury, the Bureau of Engraving and Printing, the Federal Reserve System and the United States Secret Service perform key and unique functions that contribute to the production and issuance of counterfeit-deterrent banknotes that are routinely accepted and used in commerce.
The Congress has authorized the Secretary of the Treasury to establish the design of U.S. currency and manage its manufacture, although most technical and day-to-day currencyrelated duties are delegated to the Bureau of Engraving and Printing. The Federal Reserve System is responsible for managing the flow of Federal Reserve notes through the commercial banking system and the United States Secret Service is the law
2

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 4 of 9
enforcement agency charged with monitoring and investigating counterfeiting activities. The Department of the Treasury and the BEP work in close partnership with the Federal Reserve System and the United States Secret Service to ensure that the design and production of U.S. currency meets the needs of our customers and helps to earn the public acceptance and use of Federal Reserve notes.
The U.S. banknote program is enormously important to our Nation. The Dollar is widely recognized as the predominant global currency and routine and widespread use and acceptance of Federal Reserve notes helps to maintain confidence in our Country’s economic and monetary systems. According to the Federal government’s report, U.S. Currency and Coin Outstanding and in Circulation, U.S. notes with a total estimated value of $779 billion are circulating worldwide, roughly two-thirds of this money is held outside the borders of the United States. The management of this portfolio of circulating currency generates significant interest earnings for the government. As the issuer of U.S. currency, the Federal Reserve, as required by law, holds collateral in the form of Treasury Securities for the value of U.S. currency in circulation. The Federal Reserve deposits the net earnings from its portfolio of Treasury securities into the General Fund of the Treasury. In 2007, the Federal Reserve System returned $34.4 billion to the U.S. Treasury.
3

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 5 of 9
U.S. CURRENCY REDESIGN PROGRAMS – 1929 to 2008
The U.S. government initiates a redesign of currency notes in order to stay ahead of evolving technologies that enable counterfeiting. Since counterfeiting techniques remained “traditional” for the better part of the previous century (counterfeit platemaking, use of high quality inks and use of standard printing press technology) the appearance and dimensions of U.S. currency remained unchanged from 1929 until the mid-1990s. During this period Federal Reserve notes resembled the design and size of the current $1 and $2 note.
Because the size of U.S. currency has remained constant since 1929, entire industries and product lines have been developed and built to facilitate the production, handling and use of our banknotes. These products include many of the Bureau’s printing presses, inspection devices and note finishing and packaging equipment; sophisticated, high-end cash handling machinery, inspection devices and automated vaults utilized by the Federal Reserve System and commercial banks; currency accepting machinery employed by the private sector; Automated Teller Machines; portable currency reading devices; cash register drawers; and even the basic size and composition of our wallets.
Due to the emergence of sophisticated and personal reprographic and digital technologies, in the late 1980s the government established a strategy to redesign U.S. currency every 7 to 10 years in order to maintain an edge over counterfeiters. This new policy led to the introduction of the New Currency Design series in 1996. The New
4

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 6 of 9
Currency Design or “large portrait” design was followed in 2002 by the introduction of the NexGen series, the current currency note design that utilizes distinct background colors. Since 2003, the Federal Reserve has issued the $5, $10, $20 and $50 notes, with a new $100 note to follow next. The government has no intention of redesigning the $1 and $2 note, as they are rarely targets of counterfeiters.
REDESIGN OF U.S. CURRENCY – MEASURES TO ASSIST THE BLIND
The government has used the recent design changes of U.S. currency as an opportunity to study, test and implement features to better assist those who are blind and visually impaired to more readily identify paper currency denominations. For example, in 1983 the Bureau commissioned a study to research design features that would assist the blind and visually impaired community to distinguish U.S. currency denominations. In accordance with the 1983 report’s recommendations, the Bureau procured equipment and undertook several initiatives to incorporate machine-readable features in U.S. currency.
Later, in 1995, the National Research Council (NRC), through its National Materials Advisory Board, completed a study that assessed and recommended features for people who are blind and visually impaired to recognize and denominate U.S. currency. This study recommended four modifications to banknotes – including different size banknotes, large high-contrast numerals, differing predominant colors for each denomination, and overt features that could lead to the development of effective, low-cost devices for examining banknotes.
5

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 7 of 9
Since the 1995 study, the Bureau has begun to incorporate each of the NRC recommendations, except for different size banknotes, into U.S. currency. Beginning with the Series 1996 New Currency Design notes (with the exception of the $100 note) an enlarged, high-contrast numeral was incorporated into the design on the reverse of the $5, $10, $20 and $50 notes to aid in distinguishing denominations.
After procuring new offset printing equipment, in 2003 the Bureau began adding color to newly designed banknotes (NexGen series). Most recently, the Series 2006 $5 note, which was issued on March 13, 2008, has a much larger, easy-to-read number “5” in the lower right corner on the back of the bill, which is printed in high-contrast purple ink. This enlarged numeral feature will be included on the back, lower right corner of future designs of $100 notes as well. Some blind-advocacy experts have estimated that this large, high-contrast numeral will enable 50 percent of all legally blind Americans to denominate the new $5 note.
Starting with the Series 1999 banknotes, a machine-readable feature was incorporated into the currency to facilitate the development and use of hand-held scanning devices to identify currency denominations. This feature now enables the use of small, portable readers that assist those who are blind and visually impaired to identify currency. These assistive devices are currently available and cost around $270. With the support and encouragement of the House Committee on Financial Services, the Bureau inspired private sector development of a lower-cost, portable currency reading device. We are optimistic that such a device will be available for sale in the near future.
6

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 8 of 9
NEXT STEPS TO ASSIST THOSE WHO ARE BLIND AND VISUALLY IMPAIRED
The BEP is committed to finding solutions that will assist individuals who are blind and visually impaired more effectively denominate currency. Even before the recent decision by the United States Court of Appeals, the Bureau awarded a contract to conduct a comprehensive study of the issue. Through the study and on its own, the BEP is including the American Council of the Blind (ACB), the National Federation of the Blind (NFB) and the National Council on Disability (NCD) in the effort to find solutions. The BEP and its contractor have already met with the ACB and NFB to represent consumer interests and have also met with the NCD – the independent federal agency tasked with making recommendations to Congress and the President on changes to disability policy. All of these entities have provided valuable input.
The study is intended to further advance the government’s understanding of the issues and review all possible options to help people who are blind and visually impaired. The comprehensive, three-phase study will examine the use of paper currency by the blind and visually impaired populations of the United States and the possible alternatives to improve their experience. The study will solicit input from a number of interested parties, employ surveys and use focus groups to fully study and evaluate the issue. The Bureau intends to use the data, research and analysis from the study to evaluate potential measures to improve the ability of those who are blind and visually impaired to identify currency denominations.
7

Case 1:02-cv-00864-JR Document 89-1 Filed 09/21/08 Page 9 of 9
This three phase study is intended to: 1) identify the characteristics of the blind and visually impaired Americans and their projected trends and needs for U.S. banknote identification; 2) examine the technical and practical feasibility of technological solutions and currency design changes that could assist people who are blind and visually impaired. This will include a review of the effectiveness of the feature, the ability to manufacture the feature, and other operational, timing and security considerations relating to any proposal deemed feasible; and, 3) provide an economic analysis of the design changes identified. The economic analysis will examine the societal cost to the public and private sectors and consider the effectiveness of these solutions relative to their cost.
The Department of the Treasury and the BEP are sensitive to the national currency needs of all Americans, including those who are blind and visually impaired. Changes to U.S. currency can have broad consequences on all currency users and potential solutions to assist the blind and visually impaired must be thoroughly evaluated prior to reaching any final decisions. The Department and the Bureau, in coordination with our Federal partners and the blind and visually impaired community, will continue to search for creative and practical solutions in this area.
Mr. Chairman, this concludes my prepared remarks and I am happy to answer your questions.
8

 
 Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 1 of 79

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 (a) of the Federal Rules of Civil Procedure, Plaintiffs move

for summary judgment on the basis that there is no genuine issue as to any material fact,

and Plaintiff is entitled to judgment as a matter of law. The reasons for this motion are

fully set forth in the accompanying Memorandum of Points and Authorities. Plaintiff

further requests an opportunity to present oral argument in this matter. A proposed Order

is attached.

Respectfully submitted,

____________________ JEFFREY A. LOVITKY D.C. Bar No. 404834 Law Office of Jeffrey A. Lovitky 1735 New York Ave., NW, Ste. 500 Washington, DC 20006 (202)429-3393 Attorney for Plaintiffs

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 2 of 79

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 3 of 79

TABLE OF CONTENTS

I. II. III.
A.
B.

INTRODUCTION & BACKGROUND………………….

1

THE BURDEN IS UPON DEFENDANT TO

DEMONSTRATE THAT ACCOMMODATIONS

FOR THE DISABLED ARE UNDULY

BURDENSOME…………………………………………...

2

DEFENDANT HAS NOT MADE A

REASONABLE EFFORT TO ACCOMMODATE

THE DISABLED IN DESIGNING BANKNOTES……...

3

Recommendations Made by the 1983 and 1995

Currency Studies …………………………………….……

4

1. NAS Panel Recommendations on

Varying Banknote Size by Denomination………..5

2. Recommendations of the NAS Panel on

Use Of Large High Contrast Numerals……….. 6

3. NAS Panel Findings on Use of Different

Colors for each Denomination…………………….6

4. Recommendations of the NAS Panel for

Future Research……………………………

7

Defendant’s Failure to Implement the

Recommendations Contained in the 1983 and 1995

Studies ……………………………………………….……..

7

ii

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 4 of 79

1. The Current Use of Color Is Inconsistent

With the Recommendations of the NAS

Panel………………………………………..

8

2. Design of the Large Denomination

Numeral Is Inconsistent With the

Recommendations of the NAS Panel……..

9

3. Defendant Has Not Undertaken

Reasonable Efforts to Develop a Portable

Electronic Device Capable Of Rapid And

Accurate Denomination……………………

11

4. Defendant Has Not Undertaken Any of

The Research and Testing Recommended

By the NAS Panel…………………………..

15

C. Currency Features In Use Worldwide Demonstrate

The Feasibility of Accommodating the Visually

Disabled…………………………………………………….

21

D. The Costs of Providing Accommodations to the

Visually Disabled are not Unduly Burdensome….………

23

1. The 1983 BEP and 1995 NAS Panel

Analysis of Cost Impacts…………………..

24

2. Defendant’s Current Analysis of Cost

Impacts……………………………………..

25

3. Defendant’s Current Cost Estimates are

iii

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 5 of 79

Either Inflated or Unsubstantiated……….

27

4. Defendant’s Asserted Cost Impacts Do

Not Impose an Undue Burden, Even

Assuming Their Accuracy…………………

30

IV.

THE DESIGN OF CURRENCY IMPOSES A

SIGNIFICANT BURDEN UPON THE VISUALLY

DISABLED…………………………………………………

35

V.

THE RELIEF SOUGHT BY PLAINTIFFS……………...

38

A. Currency Redesign………………………………………...

38

B. External Devices……………………………………………

40

VI.

CONCLUSION…………………………………………….

43

iv

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 6 of 79
TABLE OF AUTHORITIES FEDERAL CASES
American Council of the Blind v. Snow, 311 F.Supp. 2d 86 (D.D.C 2004)...................................................... 2, 24
Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 634 (1984) …….......................................................... 3
J.D. ex rel. J.D. v. Pawlet School Dist., 224 F.3d 60, 70 (2nd Cir. 2000) ........................................................ 14
Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1385 (3rd Cir. 1991)................................................. 3
FEDERAL STATUTES 12 U.S.C. § 418.............................................................................................. 1 29 U.S.C. § 701(b)......................................................................................... 14 29 U.S.C. § 794.............................................................................................. 1, 38 42 U.S.C. § 416(i)(1)(B)……………………………………………………. 36, 43
FEDERAL REGULATIONS 20 C.F.R. §404.1581……………………………………….………………36, 43 31 C.F.R. §17.103(c)…………………………………………………….. 9, 41 31 C.F.R. § 17.130(d)…………………………………………………..... 14, 42 31 C.F.R. § 17.150…………………………………………….…………. 2, 3, 14, 34, 42 31 C.F.R. §17.160(a)(1)…………………………………………………... 9, 41
v

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 7 of 79
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION & BACKGROUND On May 6, 2002, Plaintiffs filed a Complaint seeking declaratory and injunctive
relief under the provisions of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Pursuant to this provision, individuals with disabilities may not be excluded from or denied the benefits of participation in any program or activity conducted by the United States government. See 29 U.S.C. § 794(a). The Complaint asserted that U.S. banknotes are identical in size and feel, and virtually identical in color. The banknotes provide no basis whatsoever for denominating by blind persons. Moreover, banknotes contain minimal cues to assist persons with low vision in distinguishing between denominations. Disabled Americans experience considerable difficulty in conducting commercial transactions, and purchasing goods and services, as a result of the design of U.S. banknotes.
On August 29, 2002, Defendant filed a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure. Defendant asserted that the design of currency was subject to the sole discretion of the Secretary pursuant to 12 U.S.C. § 418, and also that modifying U.S. currency to accommodate the needs of the disabled would be unduly burdensome. The Court denied this motion by Memorandum Order dated April 1, 2003. The Court held that the record was insufficient to determine whether the modifications sought by Plaintiffs would impose an undue burden upon Defendant, and further that Defendant had failed to support its argument that the design of currency was not subject to the provisions of the Rehabilitation Act.

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 8 of 79
On May 28, 2003, Defendant submitted a Motion to Dismiss under Rule 12 of the Federal Rules of Civil Procedure. Defendant argued that the Secretary’s responsibility under the Federal Reserve Act to design currency in the best manner to guard against counterfeiting overrides the general anti-discrimination provisions of the Rehabilitation Act. Defendant also argued that no actionable discrimination existed because the visually disabled have meaningful ability to use currency. Additionally, Defendant asserted that the complaint should be dismissed under the doctrine of failure to exhaust administrative remedies.
On March 31, 2004, the Court denied the Defendant’s Motion to Dismiss. American Council of the Blind v. Snow, 311 F.Supp. 2d 86 (D.D.C 2004). The Court ruled that there is no apparent conflict between the Secretary’s responsibilities under Section 504, and the Secretary's responsibilities under the Federal Reserve Act. Id at 87. The Court further ruled that the Complaint sufficiently alleges that the Plaintiffs are “disproportionately burdened by the current form of the currency and that this burden may constitute denial of meaningful access.” Id. at 89. The Court held that the inquiry beyond this point demands an “examination of the relative burdens of the handicapped and the entity administering the program.” Id. Finally, the Court held that exhaustion of administrative remedies would be futile and therefore not be required. Id. at 90. II. THE BURDEN IS UPON DEFENDANT TO DEMONSTRATE THAT ACCOMODATIONS FOR THE DISABLED ARE UNDULY BURDENSOME
- 2 -

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 9 of 79
The burden is upon the agency to prove that compliance with the requirements of Section 504 would result in an undue burden upon the agency. The Department of Treasury regulations implementing Section 504 state in pertinent part as follows:
In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with the § 17.150(a) would result in such alteration or burdens. This determination may be made only after the agency considers all of the resources which it has available to operate the program or activity. See 31 C.F.R. § 17.150(a)(2). The Supreme Court has held that agency regulations implementing Section 504 are a particularly important source of guidance in interpreting the Act. Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 634 (1984) (noting that the responsible congressional committees participated in the formulation and adoption of these regulations). Therefore, appropriate deference to agency regulations mandates that the Defendant demonstrate that any accommodations sought by Plaintiff are unduly burdensome. III. DEFENDANT HAS NOT MADE A REASONABLE EFFORT TO ACCOMMODATE THE DISABLED IN DESIGNING BANKNOTES. Section 504 requires that the agency make a reasonable effort to accommodate individuals with disabilities. See 31 C.F.R. § 17.150. See also Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1385 (3rd Cir. 1991). However, the record is abundantly clear that the Defendant has not made a good faith effort to accommodate individuals with disabilities in the design of currency. This is evidenced by Defendant’s failure to implement the recommendation of the government’s own studies which have examined this issue in considerable detail.
- 3 -

Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 10 of 79
A. RECOMMENDATIONS MADE BY THE 1983 AND 1995 CURRENCY STUDIES
In 1983, the Bureau of Engraving and Printing (“BEP”) conducted a study pertaining to the inclusion of accessibility features in banknotes. This study was prepared by the BEP at the request of the Chairman of the House Select Committee on Aging. The results of this study are reflected in a draft report entitled "A Study of Mechanisms for the Denomination of Currency by the Blind or Visually Impaired", dated August 24, 1983, (hereinafter referred to as the “1983 Study”, and attached hereto as Exhibit P-1).
The 1983 Study reviewed a variety of approaches to make banknotes accessible to the visually disabled. The conclusion of the 1983 Study was that varying the size of banknotes by denomination would constitute the most effective method of making banknotes accessible to persons with visual disabilities. However, the 1983 Study recommended against this approach primarily for cost reasons. Instead, the 1983 Study recommended that BEP seek funding for the development of a sophisticated portable electronic device which could be used by the visually disabled to denominate banknotes. See Exhibit P-1, 1983 Study at pp. 5-6.
The issue of banknote denomination by individuals with blindness or low vision was thoroughly addressed in a 1995 study by the National Academy of Sciences (hereinafter referred to as the “NAS Panel” or “NAS Study”, and attached hereto as Exhibit P-2).1 This study, entitled Currency Features for Visually Disabled People, is by far the most comprehensive examination to date on the subject. The National Academy
1 Exhibit P-2 is divided into two parts to accommodate the Court’s 1.5 mb limit under ECF. Part 1 starts from the beginning through page 78. Part II continues from page 79 through the end of the document.
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of Sciences (NAS) was chartered by Congress in 1863 to provide advice to the federal government in the scientific, medical, and engineering disciplines.
The NAS Panel was commissioned by the Bureau of Engraving and Printing to analyze and make recommendations concerning currency features which could be useful to the visually impaired. Panel participants included leading experts in the fields of advanced reprographic technology, materials science, substrate materials, banknote production and currency design, psychophysics, optical engineering, chemical engineering, optics and physics, as well as leading experts in low vision and blindness research. The Panel also invited presentations by experts in the fields of visual and tactile perception, as well as representatives from organizations of the visually impaired. See Exhibit P-2, Preface to NAS Study.
The NAS Panel recommended that Defendant include the following features in near term (1-3 years) currency redesigns: (a) variation in both height and length of banknotes; (b) use of large, high contrast denomination numerals on a uniform background; (c) use of different predominant colors for each denomination; and (d) use of denominational UPC coding which could be used by external devices in denominating currency. Additionally, the NAS Panel recommended that the specifications for these new features should strive for sufficient differentiation between denominations to permit rapid, effortless performance. See Exhibit P-2, NAS Study, at pp. 4-5, 75-76. The NAS Panel found that each of the above features could be incorporated based on technologies which are already known and widely used. Id. at pp. 68-70.
1. NAS Panel Recommendations on Varying Banknote Size by Denomination
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As noted above, the Panel determined that varying banknote size by denomination was readily achievable within a three year period based on existing technology. See Exhibit P-2, NAS Study, at pp. 68-70. The NAS Panel noted that banknote size varies with denomination in over 120 countries, and that the technology for accomplishing this change is currently in existence. Id., at p. 40. The Panel also found that this feature is generally considered very useful by the visually impaired. Id. at pp. 40-44. The Panel cited to studies which indicate that variation of at least 5-7mm in both length and height of the banknote results in users achieving a 90% success rate with only 30 minutes of learning. Id. at p. 42. As noted below, the different denominations of the Euro vary between 5-7 mm in both length and height.
2. Recommendations of the NAS Panel on Use of Large High Contrast Numerals The NAS Panel found that use of a large high contrast numeral would require minimal additional capital investment. See Exhibit P-2, NAS Study, at p. 69. The Panel recommended implementation of this feature within 1-3 years. Id at pp. 4, 68-70. The Panel stated that people with acuity as low as 20/240 could be assisted if the numeral were 60 percent of the current note height. Id. at p. 46. People with acuity at the range of 20/160 would be assisted if the numeral were at least 40 percent of banknote height. Id. 3. NAS Panel Findings on Use of Different Colors for each Denomination The NAS Panel found that use of different predominant colors for each denomination, like the inclusion of large denomination numerals, would be relatively inexpensive to implement with little or no additional capital investment. See Exhibit P-2, NAS Study, at p. 70. The Panel determined that enough research currently exists to allow experts to identify the primary colors which would be most useful to the visually
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impaired in facilitating denomination. Id. at p. 47. The Panel recommended near term (1-3) year implementation of this feature. Id. at pp. 4, 68-70.
4. Recommendations of the NAS Panel for Future Research The NAS Panel also recommended that Defendant pursue a broad research agenda, with a view towards identifying potential combinations of features which could be employed to enhance denomination. Specifically, the NAS Panel recommended that “high priority” research be conducted to determine “optimum dimensions, optical contrast, location, colors, physical size” for making recognition and denomination of U.S. banknotes easy and convenient for visually disabled individuals. See Exhibit P-2, NAS Study, at pp. 65, 76. Additionally, the NAS Panel recommended “near or mid-term research” to determine the gradations which will permit reliable human discrimination of low-relief tactile features. Id., at p. 65. See also pp. 5, 76. The NAS Panel urged Defendant to conduct research into the development of durable tactile features. See Exhibit P-2, NAS Study, at pp. 5, 59, 62, 63, 86. The NAS Panel also recommended that Defendant work with device developers to develop improved external devices which could be useful to the visually impaired. Id at pp. 76. Further, the Panel recommended that Defendant involve appropriate user groups as early as possible to ensure selection of those features which would be most useful to the disabled population. Id at pp. 6, 77. B. DEFENDANT’S FAILURE TO IMPLEMENT THE RECOMMENDATIONS CONTAINED IN THE 1983 AND 1995 STUDIES Defendant has largely ignored the recommendations of the 1983 study and 1995 NAS Panel. The failure of the Defendant to adopt the corrective recommendations
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contained in the 1983 study and the 1995 NAS Study demonstrates its unwillingness to meaningfully address the problems of the disabled in dealing with U.S. currency.
The recommendation of the 1983 Study was that Defendant pursue the development of a portable electronic device which would be capable of rapid and accurate denomination. See Exhibit P-1, 1983 Study at pp. 5-6. However, it was not until 2004, after this litigation was commenced, that Defendants took any steps in this direction. Moreover, as will be noted in greater detail below in our discussion pertaining to portable electronic devices, the steps currently taken by Defendant to pursue the development of such a device are half-hearted at best.
Defendant has similarly ignored the recommendations of the NAS Panel. Defendant has not adopted any of the following features which the NAS Panel found could be implemented within a three year period; i.e. (a) use of different predominant colors for each denomination; (b) use of large high contrast denomination numerals; and (c) use of size as a key to denomination. See Exhibit P-2, NAS Study, at pp. 68-70.
1. The Current Use of Color Is Inconsistent With the Recommendations of the NAS Panel The manner in which Defendant has added color to banknotes is completely inconsistent with the recommendations of the NAS Panel. The NAS Panel recommended the use of a different predominant color for each banknote. See Exhibit P-2, NAS Study at p. 47. The NAS Panel stated that a mix of colors may be helpful from an anticounterfeiting perspective. However, a mix of colors is not desirable from a denomination standpoint. Id. The Committee also warned that blues and greens should not be used together, as it is particularly difficult to discriminate between these colors. Id.
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Notwithstanding the recommendations of the NAS Study, the color scheme adopted by the Defendant relies upon a mix of subtle colors, instead of a single predominant color for each denomination. Background colors of blue and red have been added to the $50 note. See Exhibit P-3, Reproduction of $50 and $20 notes. The $20 note features background colors of blue, peach, and green. Id. However, the main colors in $50 and $20 denominations remain green and black; the other colors are present only in subtle shades in secondary design elements. The BEP website properly describes the background colors on the $20 and $50 notes as “subtle.” See Exhibits P-4 and P-5, BEP Description of Color on $20 and $50 Notes. This contrasts with the Euro and other currencies, in which the main banknote colors contrast strongly with one another. See Section III(C), infra. The present use of color simply does not provide adequate contrast between denominations. See Exhibit P-8, Declaration of Patrick Sheehan, ¶ 10.
2. Design of the Large Denomination Numeral Is Inconsistent With the Recommendations of the NAS Panel Defendant’s introduction of the larger denomination numeral on the reverse of the $5, $10, $20, and $50 banknotes is also inconsistent with the recommendations of the NAS Panel. The NAS Panel recommended that the large denomination numeral be at least 40% - 60% of the current banknote height of 66.3 mm, preferably on each side of the banknote. See Exhibit P-2, NAS Study, at p. 46. See also Exhibit P-6, Def. Response to Interrogatory No. 15. Therefore, at a minimum, the large denomination numeral should be 26.52 mm. The NAS Panel also recommended that the large denomination numeral be printed in black ink against a white background, or in white against a black background. See Exhibit P-2, NAS Study at p. 46.
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However, the larger denomination numeral on the $5, $10, $20, and $50 banknotes is 13 mm, or slightly less than 20% of the current banknote height. See Exhibit P-7, Def. Response to Interrogatory No. 12. This is less than half of the size recommended by the NAS Panel. Further, the larger denomination numeral is placed on only one side of the banknote, contrary to the recommendation of the NAS Panel. See Exhibit P-2, NAS Study, at p. 46. See also Exhibit P-9, Declaration of Lorraine Marchi, at ¶7 (recommending larger denomination numeral on both sides of the banknote). Finally, the larger denomination numeral has not been included on the $1, $2, and $100 banknotes.
Moreover, this slightly larger denomination numeral is printed in green, as opposed to black ink, thereby reducing contrast levels. See Exhibit P-8, Declaration of Patrick Sheehan, ¶ 11. See also Exhibit P-9, Declaration of Lorraine Marchi, at ¶ 7. Defendant’s sole reason for using green ink is that it is the color traditionally associated with U.S. banknotes. See Exhibit P-10, BEP Explanation for Use of Green Ink. This is an insufficient justification for not providing greater contrast for the larger denomination numeral.
Enclosed is a statement from Lorraine Marchi, Founder and CEO of the National Association of the Visually Handicapped (“NAVH”), an organization founded in 1954 and dedicated to ensuring quality large print materials for people with low vision. See Exhibit P-9, Declaration of Lorraine Marchi. Ms. Marchi states that the contrast in the current large denomination numeral would be improved if its color were changed from the current green to black. Id., at ¶ 7. Ms. Marchi further suggests that the numeral on the bottom right front of the bill should be enlarged, its color should be changed to
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provide higher contrast, and a 1mm black outline should be positioned around the number. Id.
3. Defendant Has Not Undertaken Reasonable Efforts To Develop A Portable Electronic Device Capable Of Rapid And Accurate Denomination.
The BEP’s 1983 Study evaluated various features which could be used by the visually disabled to denominate currency. The 1983 Study concluded that the most practical solution was to pursue the development of a portable electronic device capable of denominating banknotes. See Exhibit P-1, 1983 Study, at p. 6.
The NAS Panel stated that the preferable approach was to permit the visually disabled to denominate currency without the aid of devices. See Exhibit P-2, NAS Study at p. 63. However, the NAS Panel recommended that the BEP work with device developers to support the development of low cost, highly accurate, and portable electronic devices capable of denominating currency. Id. at p. 71. The NAS Panel noted that devices currently on the market tend to be unreliable, slow, and costly. Id. at p. 25.
The inadequacy of the devices currently on the market is illustrated by the Declaration of Ms. Julia Wilson, a Supervisory Paralegal at the U.S. Department of Justice. See Exhibit P-11, Declaration of Ms. Julia Wilson. Ms. Wilson tested the Brytech Note Teller 2 electronic currency reader. The test results at Table A relates to the newer series of bills (Series 2002 through 2004), and the test results at Table B relate to older series (Series 1981 through 2001). The test results at Table A reveal a 25% error rate, while the test results at Table B reveal a 6% error rate. Id. at ¶5. An error rate of 25%, particularly on the newer series of notes, is beyond any reasonable tolerance. See also Exhibit P-12, Declaration of OurMoneyToo.org, at p. 2 (“electronic bill readers often
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do not work with anything but crisp, new bills”); See also Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 12. Ms. Wilson’s Declaration further notes that the retail price of this item is $270 per unit. See Exhibit P-11, Declaration of Julia Wilson, at ¶ 8.
In August 2004, the BEP issued Request for Quotations (“RFQ”) 04-0687 to industry seeking the development of a pocket sized device with a target retail price of $35 or less, which could be used to determine the denomination of U.S. currency. See Exhibit P-13, RFQ Specifications. Under the terms of the RFQ, the selected vendor would be provided with up to $50,000 to develop a prototype of a device which would have an inconclusive read rate of no greater than ten per thousand notes read, and an incorrect read rate of no greater than one per fifty thousand notes read. The successful vendor would have three years after delivery of a working prototype to bring the device to the retail market. If the vendor failed to bring the device to the retail market within the three year time frame, the design would be made public, and other companies would be invited to bring the device to the retail market. Id., at pp. 1, 3. An award incorporating the terms of the RFQ was made to Mnemonics Technologies, Inc., on September 30, 2004. See Exhibit P-7, Def. Response to Interrogatory No. 13.
The assistance given by Defendant to develop a workable prototype comes more than 20 years after the recommendation of the 1983 Study. Plaintiffs believe that such a device may eventually be useful to the visually disabled and to others in both denominating and authenticating banknotes. However, the prototype specifications are inadequate in several significant respects.
First, the ability to rapidly denominate banknotes is an important element of currency transactions. However, the specifications do not specify the response times
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which the prototype must be capable of achieving. See Exhibit P-13, RFQ Specifications. Moreover, the specifications require that the prototype be capable of reading banknotes in only two out of four orientations. Id. This is a significant limitation as the visually impaired may be incapable of orienting the banknote to the correct position.
More significantly, there is no assurance that a prototype meeting the specification will be developed. Moreover, even if such a prototype is developed, there is no assurance that the prototype will ever be brought to the retail market. Under the terms of the agreement, the prototype developer has three years to bring the design to the retail market. Id. If the developer fails to achieve this goal, then the design reverts to the public domain, in which case the design may still not be brought to the retail market. Id.
Further, the specifications state that the design “should facilitate the ability to mass-produce the units with a retail target price of less than thirty-five U.S. dollars.” Id. However, the retail price of such a unit depends largely on the size of the market and the number of people willing to purchase the item. Defendant admits that its agreement with the prototype developer “does not establish a ceiling on the sale price of the device to the public” and further that the government “…does not exercise control over the ultimate sale price.” See Exhibit P-14, Def. Admissions No’s 3 & 4. Nor is the Defendant willing to assume any role in marketing the unit, or in developing sales channels for the unit. See Exhibit P-13, RFQ Specifications. at pp. 2-3 (Questions and Answers No’s. 3, 10, 11).
The uncertainty as to the eventual retail price for such an item is a major concern to Plaintiffs. Devices currently on the market, such as the Note Teller 2, sell for
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approximately $270. See Exhibit P-11, Declaration of Julia Wilson, at ¶ 8. Such a price is completely unaffordable for many visually disabled people. A large percentage of the visually impaired are elderly individuals. These persons are often living on fixed incomes. The purchase of such an expensive item is simply beyond their reach.
Most importantly, Defendant states that it will not provide any subsidy to qualified individuals in purchasing the unit. See Exhibit P-13, RFQ Specifications, at pp. 3-4 (Questions & Answers No’s 7, 12). Defendant is unwilling to underwrite any portion of the cost of the unit for individuals who may be unable to afford it. Id. There is simply no assurance that the prototype, even if brought to market, would be affordable to the large number of visually impaired individuals with limited economic means.
Finally, development of such a device should not serve as a substitute to permitting the visually disabled to independently denominating banknotes with their own senses. Plaintiff’s concur with the NAS Panel that it is preferable to permit the visually disabled to denominate currency without need for external devices. See Exhibit P-2, NAS Study at p. 63.
The purpose of the Rehabilitation Act is to promote the independence of disabled persons, as well as their integration into mainstream society. See 29 U.S.C. § 701(b); J.D. ex rel. J.D. v. Pawlet School Dist. 224 F.3d 60, 70 (2nd Cir. 2000). The regulations implementing Section 504 recognize that government services should be provided to the disabled in the most integrated setting appropriate. 31 C.F.R. § 17.130(d); 31 C.F.R. § 17.150(b). Therefore, the visually disabled should be permitted to denominate currency without being required to carry around an external device. This is critical to allowing the
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visually disabled to maintain a sense of independence. See Exhibit P-12, Declaration of OurMoneyToo.org at p. 2.
4. Defendant Has Not Undertaken Any of the Research and Testing Recommended By the NAS Panel The NAS Panel recommended that Defendant conduct extensive research into features which could be potentially useful to the disabled. The NAS Panel urged that “high priority” research be conducted to determine “optimum dimensions, optical contrast, location, colors, physical size” which could facilitate denomination by the visually disabled. See Exhibit P-2, NAS Study, at pp. 65, 76. The NAS Panel recommended “near or mid-term research” to determine the gradations which will permit reliable human discrimination of low-relief tactile features. Id., at p. 65. See also pp. 5, 76. The Panel further recommended additional research into the development of durable tactile features. Id at pp. 5, 59, 62, 63, 86. Defendant has not undertaken any part of the broad research agenda recommended by the NAS Panel. Defendant claims to have conducted research and testing with respect to the following features: (a) inclusion of a large denomination numeral on the reverse side of the banknote; (b) inclusion of an embossed feature currently used on Canadian banknotes; (c) inclusion of a micro-perforation design currently used in Swiss currency, and (d) determination as to optimal color patterns for the visually disabled. See Exhibit P-6, Def. Response to Interrogatories No’s. 14-16. However, there is not even a scintilla of evidence to support Defendant’s claim to have conducted such testing.
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For example, Defendant states that it obtained an assessment by the University of Minnesota Laboratory for Low-Vision Research in connection with its design of the larger denomination numeral placed on the reverse side of the $5 and higher banknotes. See Exhibit P-6, Def Response to Interrogatory No. 15. However, Defendant is unable to locate a copy of this assessment. See Exhibit P-14, Def. Response to Document Production Request No. 19. Indeed, Defendant is not even certain whether the results of this assessment were conveyed orally or in writing. See Exhibit P-15, Letter from Defendant’s Counsel dated August 1, 2005.
Defendant claims to have tested an embossed feature which is currently used on Canadian banknotes. See Exhibit P-6, Def. Response to Interrogatory No. 14. Canadian currency incorporates a series of embossed dots which are used by the visually disabled to distinguish between denominations. This embossed feature was tested on ten (10) U.S. banknotes. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 8. Defendant stated that the Canadian feature “was found to have insufficient durability to approximate the average length of time required for Federal Reserve notes to remain in circulation.” See Exhibit P-6, Def. Response to Interrogatory No. 14.
Defendant was asked to produce the results of the testing which it conducted to determine the durability of the Canadian feature. See Exhibit P-14, Def. Response to Document Production Request No. 17. In response, Defendant furnished a document entitled “Tactile Feature for the Blind.” Id. However, this document reflects only durability testing of the Canadian feature on Canadian banknotes. See Exhibit P-16,
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Tactile Feature for the Blind, at pp. 6-7.2 Defendant has not produced any test results reflecting upon the durability of the Canadian feature on U.S. banknotes.
A more complete explanation of testing of the Canadian feature on U.S. banknotes is provided by H.H. Holton, President, Payment Systems, Canadian Bank Note Company, Limited. See Exhibit P-36, Declaration of H.H. Holton. The Canadian Bank Note Company developed and patented the Canadian tactile feature, and is one of two companies under contract to print paper currency for the Bank of Canada. Id., at ¶ 3,4.
At the request of Defendant, the Canadian Bank Note Company conducted preliminary wear testing on ten (10) U.S. banknotes using the Canadian formula. After wear testing, the relief provided by the Canadian feature on U.S. banknotes was reduced on average from 110 microns to 20 to 35 microns. Id. at ¶ 8. Based on research conducted by the Canadian Bank Note Company, the 20 to 30 micron range on worn banknotes was rated “satisfactory” by the visually impaired, while a 55 micron height or greater was rated as “very good.” Id. 3 The Canadian Bank Note Company states that it is probable that the embossed feature could be applied to U.S. banknotes in a manner which would be useful to the blind. Id. at ¶ 9.
The Holton Declaration clearly refutes Defendant’s assertion that the Canadian feature was found to have insufficient durability on U.S. banknotes. Moreover,
2 Exhibit P-16 is divided into three parts to accommodate the Court’s 1.5 mb limit under ECF. The cited reference is contained in Part I. 3 The Canadian Bank Note Company provided these test results to the Defendant. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 8. Plaintiffs Document Production Request No. 17 requested production of all documents reflecting testing of the Canadian feature on U.S. banknotes. See Exhibit P-14. For some unexplained reason, Defendant failed to provide these test results in response to Plaintiffs discovery request. Plaintiff would appreciate an explanation from Defendant concerning this apparent discrepancy.
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Defendant’s assertion contradicts its own prior statement in which it admits that it is unable to determine the extent to which an embossed feature would reduce the useful life of U.S. banknotes, or even whether such reduction would be significant. See Exhibit P-7, Def. Answer to Interrogatory No. 5. In any event, Defendant could not possibly have reached any conclusions as to the durability of the Canadian feature on the basis of a test sample of ten (10) U.S. banknotes. As noted by the Holton Declaration, sample sizes of 1000 banknotes would normally be required to produce statistically valid conclusions as to durability. Id., at ¶ 10.
Defendant also states that it tested a micro-perforation design developed for use as a security feature in Swiss currency to determine whether it could be useful to the visually disabled. See Exhibit P-33, Copy of Swiss Bank Note. Defendant stated that the presence of the perforation design was detectable by visually impaired persons. However, “the specific patterns could not be identified sufficiently for accurate denomination of currency. An analysis to determine the effectiveness and durability of the feature indicated that the perforation pattern could be altered or simulated easily and that the holes left by perforating accumulated dirt and debris.” See Exhibit P-6, Def. Response to Interrogatory No. 14.
Defendant was asked to produce the results of any testing which it conducted to determine the effectiveness and the durability of the micro-perforation feature. See Exhibit P-14, Def. Response to Document Production Request No. 18. In response, Defendant furnished a single page memorandum from Robert Stone to Thomas A. Ferguson, dated September 4, 2002. Id. However, this memorandum merely requests approval to provide twenty blank pieces of U.S. banknote paper to Switzerland for
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testing. See Exhibit P-17, Memorandum from Robert Stone to Thomas A. Ferguson, dated September 4, 2002. Defendant has not produced any test results reflecting upon the durability or the effectiveness of the Swiss micro-perforation feature on U.S. banknotes.
Most importantly, Defendant admitted that the presence of the micro-perforation design was detectable by persons with visual disabilities. See Exhibit P-6, Def. Response to Interrogatory No. 14. See also Exhibit P-18, Report Prepared by Deloitte & Touche/Shugoll, at p. 22. Therefore, the micro-perforation method could provide a meaningful denomination cue merely by virtue of its location on the banknote, even if the specific micro-perforation pattern was not itself sufficient to provide denomination information.
Defendant was also asked to describe any testing which it conducted to determine the optimal color schemes which would be useful to the visually disabled. Defendant stated that it contracted with Deloitte & Touche/Shugoll to conduct a research study as to how color may be useful to the visually disabled in denominating currency. See Exhibit P-6, Def. Response to Interrogatory No. 16.
Contrary to Defendant’s assertions, the needs of the disabled were not even considered by the Deloitte study. The purpose of the study was to determine public awareness of the design and counterfeit features in the recently redesigned U.S. currency, and to determine the receptivity of the target audiences to various anti-counterfeiting features. See Exhibit P-18, Report Prepared by Deloitte & Touche/Shugoll, June 2002, Executive Summary at p.2.4 The target audiences were derived from individuals in the
4 Exhibit P-18 is divided into two parts to accommodate the Court’s 1.5 mb limit under ECF. Part 1 starts from the beginning through page 28. Part II continues from page 29 through the end of the document. The Executive Summary is in Part I.
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following groups: consumers, bank tellers, cashiers, gaming industry employees, law enforcement officials, and teachers. Id. The study protocols expressly excluded from participation individuals with visual limitations. Id. at Appendix A, pp. 4R, 6C.5 This can hardly be a study designed to test the benefits of using color to assist the visually disabled in denominating currency.
Defendant’s inability to produce any results of the testing which it states it conducted raises grave doubts as to the good faith of its claim. In each case, Defendant has either lost the test results, is unable to produce any written report reflecting the results of such testing, or produced research results which have no bearing on the needs of the disabled. The obvious conclusion is that Defendant has not performed any research or testing for the purpose of making banknotes more accessible to the visually disabled.
U.S. banknotes are today no more accessible to the visually disabled than 50 years ago. This is not a record which suggests a good faith willingness on the part of the Defendant to make reasonable accommodations for the visually disabled.
Unfortunately, the future does not look any brighter. Defendant’s future plans to make banknotes accessible to persons with visual disabilities are limited to the commissioning of another study, the addition of colors to all denominations, and continuing to include a larger denomination numeral on the reverse side of the banknote. See Exhibit P-6, Def. Response to Interrogatory #20.
The conclusions of the 1983 and 1995 studies were well known to Defendant when it conducted its 1996 and 2004 currency redesigns. Nonetheless, Defendant chose
5 Appendix A is contained in Part II of Exhibit P-18.
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to ignore the recommendations of those studies. There is a little reason to believe that Defendant will treat the results of the new study any differently.
Defendant’s statement that it will continue to add color to all denominations is contradicted by the most recent report from its Chief Financial Officer. According to the latter, Defendant has no plans to redesign the $5 note, and the $1 and $2 notes will not be redesigned. See Exhibit P-34, 2004 CFO Report, at p. 7.6 In any event, the manner in which Defendant currently employs color is of no benefit to the visually disabled. C. CURRENCY FEATURES IN USE WORLDWIDE DEMONSTRATE THE FEASIBILITY OF ACCOMMODATING THE VISUALLY DISABLED
The NAS Panel conducted an extensive study of accessibility features in use worldwide. The Panel found that different sized currency is an established practice in over 120 countries. See Exhibit P-2, NAS Study at p. 40. The Panel found that 24 countries have adopted a specific scheme involving the use of large denomination numerals. Id. at p. 102. The Committee found that 167 out of 171 issuing authorities use a clearly differentiated color scheme for all denominations. Id., At the time of the 1995 NAS Study, there were 16 countries that used intaglio printing to produce tactile marks for each denomination. Id., NAS Study at p. 103. Another 7 currencies have tactile features on some denominations. Id.
The Euro was introduced on January 1, 2002. During the development of the Euro, designers and printing experts consulted the European Blind Union. The result was
6 Exhibit P-34 is divided into two parts to accommodate the Court’s 1.5 mb limit under ECF. Part 1 starts from the beginning through page 1-. Part II continues from page 11 through the end of the document.
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a currency design which incorporates tactile cues, color, large denomination numerals, and different sizes for each denomination.
On the front of each note is a large denomination numeral over 2 centimeters tall, which is set against a pale background. This large denomination numeral is manufactured with intaglio printing, and is designed to be perceptible to touch. See Exhibit P-19, Euro Vision, Understanding Euro Notes and Coins, A Guide for People with Poor Vision, jointly published by the European Blind Union, European Commission, and the European Central Bank, at p. 4.7 Specific patterns using intaglio print which are perceptible to touch are also printed along the edges of the EUR 200 and EUR 500 banknotes to help with recognition. These edge patterns are printed using the intaglio method. Id. at p. 5. Additionally, the notes have a foil feature which is also perceptible to touch. The foil feature on the 5, 10, and 20 Euro notes differs in shape and position from the foil feature on the 50, 100, 200, and 500 notes. Id at p. 6.
The length of the Euro increases by 6-7 mm with each denomination. The smallest note, which is the 5 Euro, is 12 cm long, while the largest note is 16 cm long. The 5, 10, 20, 50, and 100 notes also increase in height. The 5 Euro note is 6.2 cm in height, while the 100 Euro note is 8.2 cm in height. Id at p. 5.
Moreover, each Euro denomination has a striking dominant color, used on the front and the reverse sides. The dominant colors for each Euro denomination are: 5 Euro – Grey; 10 Euro – Red; 20 Euro – Blue; 50 Euro – Orange; 100 Euro – Olive Green; 200 Euro – Yellow-Brown; 500 Euro – Purple. Id. at p. 6.
7 Exhibit P-19 is divided into two parts to accommodate the Court’s 1.5 mb limit under ECF. Part 1 starts from the beginning through page 16. Part II continues from page 17 through the end of the document.
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The Canadian currency was redesigned in 2001 after extensive consultation with blind and visually impaired Canadians. The newly redesigned currency incorporates a series of symbols formed by groupings of six raised dots separated by a smooth surface. Each symbol is composed of two columns of three raised dots. These dots are embossed and back-coated to enhance their durability. See Exhibit P-20, Bank of Canada, Description of Accessibility Features.
The number and position of these symbols vary according to the denomination. The $5 note has one symbol, the $10 note has two symbols separated by a smooth surface, the new $20 note has three symbols separated by two smooth surfaces, and the $50 note has four symbols separated by three smooth surfaces. Like the $10 note, the new $100 bank note has two symbols, but the smooth surface between them is wider. Id.
The embossed feature on Canadian currency reflects a unique method of embossing which provides additional durability to the embossed symbols. See Exhibit P16, Tactile Feature for the Blind, at pp. 3-4. This feature was subject to extensive durability testing prior to its incorporation. Id. at pp. 6-7. The results demonstrate that the embossed feature would not reduce the durability of Canadian banknotes. Id. The relief provided by the embossed symbols is more than adequate to enable rapid denomination. Id., at p. 5. After a few minutes of training, users are able to denominate using the embossed symbol within an average of 13 seconds. Id. The redesigned notes did not present any stacking concerns to the Bank of Canada. Id. at p. 7.
In sum, the United States lags far behind other major countries in accommodating the visually disabled in connection with the design of currency. Plaintiff does not suggest that the United States should copy the design of other currencies. However, this
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discussion demonstrates the widespread adoption of features which provide the visually disabled far greater access to currency than presently exists in the United States. D. THE COSTS OF PROVIDING ACCOMODATIONS TO THE VISUALLY DISABLED ARE NOT UNDULY BURDENSOME
The Court’s order denying Defendant's Motion to Dismiss held that Plaintiff’s have properly alleged that they are “disproportionately burdened by the current form of the currency and that this burden may constitute denial of meaningful access. The inquiry beyond this point is necessarily fact-specific and demands an examination of the relative burdens of the handicapped and the entity administering the program.” American Council of the Blind v. Snow, 311 F.Supp. 2d 86, 89 (D.D.C. 2004).
1. The 1983 BEP and 1995 NAS Panel Analysis of Cost Impacts The issue of cost is obviously significant in ascertaining the burden imposed upon Defendant. This issue was addressed by the BEP in its 1983 study. The cost impacts of making currency accessible to the visually disabled were summarized in Figure 2 of the BEP study, which is reproduced below. See Exhibit P-1, 1983 Study. This study demonstrates that many of the accessibility features sought by Plaintiff can be achieved at
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Case 1:02-cv-00864-JR Document 35-1 Filed 08/31/2005 Page 31 of 79 a relatively modest cost.
The issue of cost was also addressed by the NAS Panel. The NAS Panel concluded that at least three of the features which could be useful to the visually disabled, i.e., color, large denomination numeral, and perforations, could be achieved with minimal additional capital expenditures. Exhibit P-2, NAS Study, at pp. 69-70. Moreover, the NAS Panel also found that use of different predominant colors for each denomination, and inclusion of a large denomination numeral, could also be implemented within a 1-3 year period. Id., at pp. 68-70.
2. Defendant’s Current Analysis of Cost Impacts Cost impacts were again addressed by Defendant in responding to Plaintiff’s discovery requests during the course of this litigation. Defendant was asked to estimate the total costs involved in adding specific accessibility features to U.S. currency, including research, design, and manufacturing expenses. The following estimates
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provided by Defendant reflect the cost of modifying all denominations, including the $1 note.
Defendant states that adding a large denomination numeral, which is at least 60% of current banknote height, would require a one time outlay of $4,500,000, plus additional annual costs in the amount of $400,000. See Exhibit P-7, Def. Response to Interrogatory No. 8. The use of large geometric shapes on banknotes would require a one time outlay of $4,500,000, with no additional annual costs. See Exhibit P-7, Def. Responses to Interrogatory No. 10. The use of different predominant colors on each banknote would require a one time outlay of $48,000,000, with additional annual cost in the amount of $20,000,000. See Exhibit P-7, Def. Response to Interrogatory No. 9. None of these features would have any impact on banknote durability. See Exhibit P-6, Def. Admissions No’s 1 and 2.
Defendant estimates that the cost impact of varying the length and height of currency would be $245 - $320 million in initial costs. See Exhibit P-21, Declaration of Thomas Ferguson, Director of the Bureau of Engraving and Printing, dated August 28, 2002 (hereinafter the “Ferguson Declaration”), ¶ 52. However, $70-$90 million of the initial start up costs is related to public education expenses, as opposed to any cost involved in the production of currency. Id.
The Ferguson Declaration further refers to increased annual expenses in the amount of $143 - $174 million related to varying the height and length of banknotes. Id. However, $92 - $109 million of the estimated increased annual costs are related to replacing prematurely worn currency. Id. The additional cost of replacing prematurely worn currency would only be incurred if an embossed numeral or tactile feature is
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included, in addition to the dimensional changes. See Ferguson Declaration, ¶¶ 49-51. Therefore, the additional annual costs of varying the height and length of banknotes, without also including an embossed numeral, would be $51 - $65 million.
Defendant states that the cost to emboss a tactile feature on banknotes would require a one-time outlay of approximately $45.5 million, plus additional annual costs of $16,000,000. See Exhibit P-7, Def. Response to Interrogatory No. 5. Defendant states that the total costs to include a micro-perforation feature perceptible to touch would require a one time outlay of $75 million, plus additional annual costs of $9 million. See Exhibit P-7, Def. Response to Interrogatory No. 6. Defendant states that the cost of adding a foil feature to banknotes which is perceptible to touch would result in a one-time outlay of $51.5 million, plus additional annual costs of $15.3 million, excluding the cost of the foil, which the Defendant declines to estimate. See Exhibit P-6, Def. Response to Interrogatory No. 22.
U.S. currency is currently producing using the intaglio method. See Exhibit P-22, BEP Description of Intaglio Process. However, Defendant declines to estimate the costs of using intaglio printing to create a tactile feature on banknotes because it considers it unlikely that such a feature could be produced. See Exhibit P-6, Def. Response to Interrogatory No. 21.
Defendant’s response is incomprehensible given that the Euro uses the intaglio method to create a large denomination numeral which is perceptible to the touch. See Exhibit P-19, Euro Vision, Understanding Euro Notes and Coins, at p. 4. Specific patterns using intaglio print which are perceptible to touch are also printed along the edges of the EUR 200 and EUR 500 banknotes to help with recognition. Id. at p. 5.
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Additionally, the Japanese yen also uses intaglio print to incorporate a tactile feature specifically designed to assist the blind in denominating currency. See Exhibit P-32, Bank of Japan Description of Yen Note. At the time of the 1995 NAS Study, there were 23 countries that used intaglio printing to produce tactile marks on currency. See Exhibit P-2, NAS Study at p. 103.
3. Defendant’s Cost Estimates are Either Inflated or Unsubstantiated Defendant’s cost estimates are based on the cost of modifying all denominations, including the $1.00 note. The $1 note consists of approximately 50% of all currency production. See Exhibit P-21, Ferguson Declaration at ¶5. Defendant asserts that it is precluded from modifying the $1 note due to legislative restrictions. See Def. Motion for Summary Judgment, at 18. Therefore, the cost estimates provided by Defendant are likely to be significantly reduced if the cost of modifying the $1 note is subtracted. Further, these cost estimates are not supported by the documentation furnished by Defendant in support thereof. For example, Defendant asserts that the initial costs to design and engrave an enlarged denomination numeral would be $4,500,000. However, documents provided by Defendant to support this estimate indicate that the initial cost to design and engrave the larger denomination numeral equals only $354,544. The latter figure is based upon an estimate of a total of 2,650 engraving hours, at an hourly rate of $133.79. See Exhibit P-23, Cost Impact of Enlarged Numeral, Def. Response to Third Document Production Request. Defendant increases its one-time cost estimate from $354,544 to $4.5 million solely on the basis of a two sentence email to the BEP legal counsel, which neither explains the increase nor even references a figure of $4.5 million. See Exhibit P-24, Def.
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Response to Document Production Request No’s 10-16, Answer No. 12, and Exhibit P25, email from Len Olijar, dated April 19, 2005. Defendant would be required to expend 33,634 additional engraving hours to design the larger denomination numeral in order to reach an initial outlay cost of $4.5 million, assuming an hourly rate of $133.79. It is inconceivable that the design of a larger denomination numeral would require an additional 33,634 engraving hours.
Defendant’s cost estimates are unexplained in several other significant respects. For example, Defendant asserts that to emboss currency it will be required to purchase 12 embossing machines at $3 million each (See Exhibit P-26, Cost Impact of Embossing Feature, Def. Response to Third Document Production Request); to perforate currency it will be required to purchase 12 perforation machines at $5.5 million each (Exhibit P-27, Cost Impact of Perforation Feature, Def. Response to Third Document Production Request); and to add foil it will be required to purchase 12 foil stamp machines at $3.5 million each (Exhibit P-28, Cost Impact of Foil Stamp, Def. Response to Third Document Production Request). However, Defendant provides no documentation as to how it arrived at its estimated cost per machine, notwithstanding Plaintiff’s request for all documents supporting Defendant’s cost estimates. See Exhibit P-24, Def. Response to Document Production Requests No’s 10-16.
Defendant states that each new embossing machine will require hiring 2 pressman and 1 KG-4 helper per machine shift (Exhibit P-26, Cost Impact of Embossing Feature); each new perforating machine will require hiring one additional plate printer per machine shift (Exhibit P-27, Cost Impact of Perforation Feature), and each new foil stamp machine will require hiring 2 pressman and 1 KG-4 helper per machine shift (Exhibit P-
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28, Cost Impact of Foil Stamp). Once again, Defendant provides no supporting documentation as to how it arrived at its estimated staffing cost per machine.
Finally, Defendant asserts that the addition of different colors for each denomination would require a one time additional equipment cost of $48 million, plus increased annual costs of $20 million, primarily for labor. See Exhibit P-7, Def. Response to Interrogatory #9. Documents supporting this estimate reflect that the additional capital costs consist of the purchase of 4 new printing presses at $12 million each. See Exhibit P-29, Cost Impact of Offset Printing Feature, Def. Response to Third Document Production Request. The increased labor cost consists primarily of the additional labor required to operate each new machine. Id.
Defendant’s cost estimates are inconsistent with the findings of the 1995 NAS Panel, which found that little additional capital investment would be required to add color to banknotes. See Exhibit P-2, NAS Study, at p. 70. In any event, Defendant has already added different colors to the $20 and $50 notes. See Exhibit P-7, Def. Response to Interrogatory #9. Accordingly, the increased costs reflected above can only consist of the amounts required to add color to the remaining five denominations.
Defendant states that it currently plans to add different background colors to all seven denominations. See Exhibit P-6, Def. Response to Interrogatory #20. Therefore, Defendant will incur the additional costs of adding different colors for each denomination regardless of the outcome of this litigation. The only issue is whether these costs will be incurred to add a color scheme which will provide sufficient contrast to assist the visually disabled in distinguishing between denominations.
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4. Defendant’s Asserted Cost Impacts Do Not Impose a Substantial Burden, Even Assuming Their Accuracy Defendant states that it has spent $4.2 billion over the past 10 years to produce currency. See Exhibit P-7, Def. Response to Interrogatory No. 1. This equates to an average of approximately $420,000,000 per year. Defendant further states that every aspect of currency production involves the incorporation of anti-counterfeiting features. See Exhibit P-7, Def. Response to Interrogatory No. 2. Therefore, Defendant states that it has spent $4.2 billion for anti-counterfeiting purposes as well. Id. The costs of the design changes sought by Plaintiffs are relatively insignificant when compared to the average annual cost for currency production of $420 million. The use of different predominant colors for each denomination would result in increased annual costs $20 million (Exhibit P-7, Def. Response to Interrogatory No. 9), which is less than 4.7% of the average annual $420 million production cost. As discussed above, any additional costs to add color to currency will be incurred in any event given Defendant’s plans to add different background colors to all denominations. The inclusion of an embossed numeral would result in increased annual costs of $16 million (Exhibit P-7, Def. Response to Interrogatory No. 5), or approximately 3.8% of average annual production costs. Addition of a foil feature would result in increased annual costs of $15.3 million (Exhibit P-6, Def. Response to Interrogatory No. 22), excluding the cost of the foil itself which Defendant declines to estimate. This annual increase is approximately 3.6% of the average yearly $420 million production cost. The use of a micro-perforation feature would result in additional annual costs of $9 million (Exhibit P-7, Def. Response to Interrogatory No. 6), or approximately 2% of average
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annual production costs. The inclusion of a large denomination numeral would result in increased annual costs of $400,000 (Exhibit P-7, Def. Response to Interrogatory No. 8), which is approximately .095 percent, or less than one-tenth of one percent, of the average annual production costs. The use of large geometric shapes on banknotes to indicate denomination would result in no increased annual costs. See Exhibit P-7, Def. Responses to Interrogatory No. 10.
Moreover, the cost increases projected by Defendant are double what would be required if the cost of modifying the $1 note were excluded. Thus, Defendant calculated the cost increases associated with making the design modifications sought by Plaintiffs on the basis of its costs per 1000 notes. See Exhibit P-23, Cost Impact of Enlarged Numeral; Exhibit P-26, Cost Impact of Embossing Feature; Exhibit P-27, Cost Impact of Perforation Feature, Exhibit P-28, Cost Impact of Foil Stamp; Exhibit P-29, Cost Impact of Offset Printing Feature. However, approximately 50% of the Bureau’s production volume consists of the $1 note. See Exhibit P-21, Ferguson Declaration at ¶5. Therefore, the annual cost increases provided by Defendant in connection with making these design modifications must also be decreased by 50%, assuming that no modifications are made to the $1 note. Similarly, the initial equipment costs estimated by Defendant must also be proportionately reduced by one-half, as only 50% of the estimated equipment would be required to meet the correspondingly reduced production volumes.
Defendant states that it has already spent approximately $49 million to make currency accessible to persons with visual disabilities. See Exhibit P-7, Def. Response to Interrogatory No. 4. According to Defendant, these costs were incurred for the purpose of adding color and a large denomination numeral. Id.
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Defendant’s contention that it added color to currency for the purpose of assisting persons with visual disabilities is highly questionable. Exhibit P-8, Declaration of Patrick Sheehan, ¶ 10. Nonetheless, even assuming the correctness of this assertion, the additional amounts required to make currency truly accessible to persons with visual disabilities are not disproportionate to the sums already expended by Defendant for this purpose.
Defendant states that its cost estimates do not include any reduction in the useful life of currency due to degradation of the embossed numeral or the micro-perforation feature. Defendant states that the reduction in the useful life of banknotes associated with degradation of these features “cannot be determined.” See Exhibit P-7, Def. Response to Interrogatories No’s. 5, 6. The Ferguson Declaration conceded that no testing has been conducted to determine the extent to which the useful life of a note would be reduced by inclusion of such features. See Exhibit P-21, Ferguson Declaration, ¶ 50.
Defendant’s inability to estimate the additional costs due to any potential reduction in the useful life of the currency is due to its own inaction in implementing the recommendations of the 1995 NAS Panel. The NAS Panel urged the Defendant to conduct research into the development of durable tactile features. See Exhibit P-2, NAS Study, at pp. 5, 59, 62, 63, 86. However, this research has not been conducted. Nor has any testing been performed by Defendant to determine the durability of these features. See Exhibit P-21, Ferguson Declaration, ¶50. Accordingly, Plaintiff’s are seeking that the Court mandate that Defendant perform such research and testing as may be required for the purpose of developing durable tactile features, and determining the costs associated therewith.
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In any event, Defendant’s estimates as to the useful life of currency are inconsistent with estimates provided by the Federal Reserve Board. The Director of the BEP stated that a “on average, a five dollar bill is withdrawn after approximately two years in circulation, a ten dollar bill is withdrawn after approximately 3 years in circulation, a twenty dollar bill is withdrawn after approximately four years in circulation, and both a fifty and a one hundred dollar bill is withdrawn after approximately nine years in circulation.” See Exhibit P-21, Ferguson Declaration at ¶ 50.
However, the Federal Reserve Board has furnished considerably shorter estimates of the useful life of banknotes. In fact, the Federal Reserve Board’s estimate of the useful life of banknotes is approximately 50% of the length estimated by the BEP. The Federal Reserve Board states that the average life of a $5 note is 16 months, a $10 note is 18 months, a $20 note is 24 months, a $50 note is 55 months, and a $100 note is 89 months. See Exhibit P-35, Federal Reserve Board FAQ.
Defendant has repeatedly asserted that the accommodations sought by Plaintiffs would compromise the useful life of banknotes. See e.g., Exhibit P-6, Def. Response to Interrogatory No. 14 (the Canadian embossing feature “was found to have insufficient durability to approximate the average length of time required for Federal Reserve notes to remain in circulation”). These assertions must treated with considerable skepticism given the wide variations between the estimates of the BEP and the Federal Reserve Board as to the useful life of banknotes.
The regulations promulgated by the Secretary of the Treasury implementing Section 504 state that the existence of an undue burden must be considered in light of “all agency resources available for use in the funding and operation of the conducted program
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or activity…” See 31 C.F.R. § 17.150(a)(2). The resources available to the BEP in carrying out its currency production program are not limited by normal agency budgetary constraints. The BEP receives no appropriations from Congress. See Exhibit P-21, Ferguson Declaration, ¶ 7. Rather, its operations are financed by means of a revolving fund. This fund is reimbursed through product sales for the direct and indirect costs of operations. Id. The Bureau is authorized to add an amount sufficient to cover any new capital investments and additional working capital requirements in the prices it charges for its products. Id.
In the case of currency production, the Bureau’s costs are reimbursed by the Federal Reserve Board. Id. Accordingly, any increased costs to modify U.S. currency to accommodate the visually disabled would be passed on to the Federal Reserve System. See Exhibit P-21, Ferguson Declaration, ¶ 22. The Federal Reserve System will in turn pass through these costs to its member banks and other private financial institutions. Id.
Therefore, the increased costs involved in modifying U.S. currency to accommodate the visually disabled must be considered in light of the overall size of the U.S. banking system. These increased costs are trivial when compared to the size of the U.S. banking system as a whole. Defendant’s suggestion that such modifications would result in an undue burden is simply untenable.
IV. THE DESIGN OF CURRENCY IMPOSES A SIGNIFICANT BURDEN UPON THE VISUALLY DISABLED
Most Americans are fortunate enough to take for granted the ability to engage in effortless and seamless currency transactions. However, for millions of Americans with blindness or low vision, the use of U.S. banknotes presents a major challenge. This is
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due to the fact that U.S. banknotes are identical in size and feel, and virtually identical in color.
Plaintiff Otis Stephens, who is blind and has no pattern vision whatsoever, must rely upon a sighted individual to inform him as to the denomination of a particular banknote. See Complaint, ¶12. See Exhibit P-30, Declaration of Otis Stephens, at ¶¶ 3, 5, 7, 11. Mr. Stephens then uses a system of folding bills in different ways to distinguish between denominations. Id., at ¶ 6.
Plaintiff Patrick Sheehan is able to distinguish between banknotes of varying denominations only in the very best of lighting conditions. See Complaint, ¶13. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 4. Mr. Sheehan also uses a system of folding bills in different ways to distinguish between denominations. Id., at ¶ 5.
This system of folding bills provides inadequate assurance that the bills which are handed out represents the correct denomination. Plaintiffs Sheehan and Stephens often hand out larger denominations than they intended. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 7. See Exhibit P-30, Declaration of Otis Stephens, at ¶ 7. The visually disabled individual is at a distinct disadvantage if a dispute occurs as to what denomination was actually handed to a vendor. See Exhibit P-12, Declaration of OurMoneyToo.org, at p. 1. Moreover, the system of folding bills provides no assistance in ascertaining whether a vendor provides the correct denominations in return. Id. at p. 1.
There are approximately 3.3 million adults 40 years and older in the United States who have vision impairments, i.e., have corrected visual acuity no better than 20/40 in the better eye. See Exhibit P-37, NIH Statistics on Visual Impairments. About 937,000 of these people are legally blind. Id. See also 42 U.S.C. § 416(i)(1)(B), 20 C.F.R. §
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404.1581, which defines legal blindness for social security disability purposes as having corrected visual acuity no better than 20/200 in the better seeing eye. Visual impairments are age related. Approximately 2.7 million of the 3.3 million visually impaired adults in the United States are over the age of 70. See Exhibit P-37, NIH Statistics on Visual Impairments. As the number of older Americans increases, the number of people with visual impairments will also increase. See Exhibit P-9, Declaration of Lorraine Marchi, at ¶ 6.
Full participation in society depends upon the ability to engage in routine currency transactions in an independent and confidential manner. Currency transactions are integral to the routine process of buying and selling merchandise, using vending machines, and participating in daily life activities. Persons with visual disabilities are unable to exchange currency in either an independent or confidential manner. As a result, individuals with visual disabilities suffer needless impediments in such daily life activities as purchasing food and other consumables, transportation, and a variety of other goods and services. See Exhibit P-8, Declaration of Patrick Sheehan, ¶¶ 6-9. See Exhibit P-30, Declaration of Otis Stephens, ¶¶ 11-13.
Further, the possibility of human mistake exists in all currency transactions. The likelihood of such mistakes is increased due to the occurrence of millions of currency transactions on a daily basis. However, the visually disabled individual is unlikely to detect such errors due to their inability to denominate banknotes.
The visually disabled are frequently recognizable as having a substantial life impairment. See Exhibit P-30, Declaration of Otis Stephens, ¶ 8. The visually disabled are completely at the mercy of dishonest merchants when conducting currency
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transactions. This factor is itself likely to produce fear and anxiety on the part of the visually disabled when engaging in routine currency transactions.
The visually disabled understandably experience a heightened sense of vulnerability when handling currency. The visually disabled have no independent means to discern whether the denominations they are being handed back is correct. This lack of ability to know whether one is being handed back the correct amount creates a profound sense of insecurity and helplessness on the part of the visually disabled. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 9; See Exhibit P-30, Declaration of Otis Stephens, at ¶ 13.
Errors in currency transactions, whether due to fraud or mistake, have a significant financial impact. The majority of the visually disabled are elderly individuals. The elderly as a group comprise a disproportionately high percentage of people living at poverty levels. A $20 dollar currency error involving an elderly individual could produce a significant financial hardship. See Exhibit P-9, Declaration of Lorraine Marchi, at ¶ 5.
Current banknote design also impairs the ability of the visually disabled to obtain employment in certain areas. There are a vast number of employment positions which demand the ability to engage in spontaneous currency transactions. These positions often exist in the retail sector, such as cashiers at drug and grocery stores. The visually disabled are precluded from obtaining employment opportunities in these areas due to the design of U.S. currency. See Exhibit P-12, Declaration of OurMoneyToo.org., at p. 3.
These burdens are significant for millions of Americans. They are borne on a daily basis by the most vulnerable individuals in our society. The current design of U.S.
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currency constitutes a major impediment to disabled individuals in independently engaging in daily life activities.
V. THE RELIEF SOUGHT BY PLAINTIFFS Plaintiffs are seeking a Declaratory Judgment that Defendant has failed to adhere to its obligations under Section 504 of the Rehabilitation Act in the design of currency. See 29 U.S.C. § 794. Additionally, Plaintiffs are seeking remedial relief in the following two categories: (a) redesign of currency so that individuals who are blind or have low vision will be better able to distinguish between denominations, and (b) furnishing without charge to individuals with low vision and blindness a suitable external device which will assist them in denominating banknotes. The relief requested does not seek to impose any specific currency design upon Defendant. Rather, Defendant should be ordered to provide for the Court’s approval a corrective action plan which will address the needs of the visually disabled. This plan should be provided by the Defendant within 180 days of the Court’s order in this action. The corrective action plan should provide for consultation with various disabled user groups in connection with the implementation of any features designed for the visually disabled. Plaintiffs further request that the Court maintain continuing jurisdiction over this matter to ensure Defendant’s compliance with its obligations under the statute. (A) CURRENCY REDESIGN With respect to the redesign of currency, Plaintiff’s recognize that the relief which would be most appropriate for individuals with low vision would have little utility for the blind. Therefore, both population groups should be separately considered in any relief to be ordered by this Court.
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There is no doubt that Defendant is currently capable of redesigning currency with additional low vision features. The low vision features which could be useful to individuals with low vision are well known, technically achievable, and not cost prohibitive. These features include, but are not limited to, increasing the size of the large denomination numeral on the bottom right side of the bill, changing the color of the large denomination numeral from green to black to improve contrast, and using different predominant colors for each denomination. The NAS Panel noted that each of these features could be implemented within a period of 1-3 years, and with minimal additional capital investment. See Exhibit P-2, NAS Study, at pp. 68-70.
Plaintiffs are not seeking to require the incorporation of any specific feature into U.S. banknotes. Rather, Defendant should be ordered to furnish for the Court’s approval a corrective action plan which will detail the specific low vision features which it intends to incorporate, as well as a timetable for the incorporation of those features.
Defendant would have already been able to incorporate tactile features to assist the blind had it previously followed the recommendations of the NAS Panel in conducting additional research and testing. Nonetheless, these recommendations have not been followed by the Defendant. Therefore, Plaintiffs understand that Defendant will require additional time to design a feature which will be useful to the blind in denominating currency.
Plaintiffs note that there are a variety of features which are already used for this purpose in the currency of other nations. These features range from varying the dimensions of banknotes by denomination, using an embossed tactile feature to indicate denomination, using a tactile foil feature which would indicate denomination by virtue of
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its location on the banknote, and using the intaglio printing method to create a tactile raised print feature. There are other features which are currently used for security purposes in currencies, but which could easily be adapted to the needs of the blind. These include use of a tactile micro-perforation feature which could indicate denomination by virtue of its location on the banknote.
Accordingly, Defendant should provide for the Court’s approval a corrective action plan which either states the specific features which Defendant intends to implement to assist the blind, or in the alternative, a description of the actions it intends to take, including additional research and testing, which will lead to the incorporation of such features. The plan to be provided for the Court’s approval should further contain projected implementation dates, with appropriate milestones to permit ongoing oversight by the Court. (B) EXTERNAL DEVICES
Defendant has contracted with a private vendor for the development of a prototype electronic note reader. The design of the prototype must facilitate the ability to achieve a target retail price of $35 or less. See Exhibit P-13, RFQ Specifications, at p. 1. Defendant states that the prototype will be delivered by September 30, 2005. See Exhibit P-6, Def. Response to Interrogatory No. 17.
Unfortunately, Defendant does not have a serious strategy to bring this device to the retail market at an affordable price. The specifications for the development of the prototype provide that the vendor has three years to bring this device to the market. See Exhibit P-13, RFQ Specifications, at p. 3 (Q&A No. 7). This is an inordinately long
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period of time. If the vendor fails to achieve this goal, then the design reverts to the public domain, in which case the device may never be brought to the retail market. Id.
Further, Defendant is not able to impose a ceiling on the prices which the vendor may charge the general public for the device. Nor does the government exercise ultimate control over the prices at which this device may be sold to the general public. See Exhibit P-14, Def. Admissions No’s 3 & 4. The likelihood of achieving the target retail price of $35 is minimal if there are relatively few purchasers of the unit. Moreover, Defendant does not intend to participate in the marketing of the unit, or in developing sales channels for the unit. See Exhibit P-13, RFQ Specifications, at pp. 3-4 (Questions and Answers No’s. 3, 10, 11). Defendant is also unwilling to provide any subsidy to qualified individuals in purchasing the unit. Id. (Questions & Answers No’s 7, 12).
The Secretary's regulations clearly state that the financial burden is upon the Defendant to provide assistive devices to individuals with disabilities. These regulations require the agency to “…furnish appropriate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.” See 31 C.F.R. §17.160(a)(1). The term “auxiliary aids” is defined as devices which provide the disabled with “equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency.” 31 C.F.R. §17.103(c). The regulations state that auxiliary aids for individuals with visual disabilities include such items as “readers, Brailed materials, audio recordings and other similar services and devices.” Id.
The portable hand held electronic reader which is being developed with funds from the Defendant is clearly an auxiliary aid. The sole purpose of this device is to
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enable the visually disabled to denominate U.S. banknotes, which they are otherwise unable to do.
Defendant would not incur an undue financial burden in providing such a device to the visually disabled. There are 937,000 legally blind adults 40 years and older in the United States, of whom 648,000 are over the age of 80. See Exhibit P-37, NIH Statistics on Visual Impairments. See also 42 U.S.C. § 416(i)(1)(B); 20 C.F.R. § 404.1581 (defining legal blindness for social security disability purposes). In the highly improbable event that each of these individuals requested a device, the total cost to the U.S. government would be approximately $33 million (assuming a unit cost of $35). More likely, only a fraction of the blind would request the device, and the government would likely obtain a price much lower than $35 by ordering larger quantities. Other governments also provide such devices to visually disabled individuals at no charge. See Exhibit P-20, Bank of Canada, Description of Accessibility Features.
Finally, providing an external device is not a substitute for designing currency in a manner which permits the visually disabled to denominate with their own senses. See Exhibit P-2, NAS Study at p. 63. The Secretary’s regulations recognize that services should be provided to the disabled in the most integrated setting appropriate. See 31 C.F.R. § 17.130(d); 31 C.F.R. § 17.150(b). The visually disabled should be permitted to denominate currency without being required to rely on an external device. See Exhibit P12, Declaration of OurMoneyToo.org at p. 2. Accordingly, the relief sought by this action seeks both currency redesign, as well as furnishing a rapid and reliable external device which may be used by the visually disabled to denominate banknotes. VI. CONCLUSION
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Defendant has not taken any meaningful steps to assist individuals with low vision. The addition of color to the $20 and $50 notes provides no assistance to the visually disabled. The larger denomination numeral is smaller than recommended by the NAS Panel, is printed with green and not black ink, is not included on all denominations, and is printed on only one side of the banknote.
Defendant’s record is even worse with respect to the blind. Defendant claims to have conducted research into various features which could be useful to the blind. However, in each case, Defendant has either lost the research results, is unable to produce any documents reflecting the results of such research, or has produced results based on testing which excluded the blind from participation. Defendant’s future plans to make banknotes accessible to the blind is limited to the commissioning of another study, which is unlikely to provide any relief given that Defendant ignored the recommendations of the NAS Panel in its 1996 and 2004 currency redesigns.
Defendant has no meaningful plans to develop a low cost portable electronic device capable of denominating banknotes. Defendant awarded a contract to develop a prototype unit. However, there is no assurance that the prototype will ever be manufactured for the mass market. Moreover, the contract does not authorize Defendant to impose a ceiling on the prices which may be charged for the unit, nor is Defendant willing to subsidize the cost of the unit for qualified individuals.
Other currencies have incorporated new tactile features which could be useful to the blind. Canadian currency contains a series of durable embossed dots. The Euro contains a foil and an intaglio raised print feature. Swiss currency contains a micro-perf feature which is perceptible to the touch. The NAS Panel found that 23 currencies have
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some form of tactile features, and another 120 currencies vary size of banknote by denomination.
The costs of the design changes sought by Plaintiffs are relatively insignificant. The BEP receives no appropriations from Congress. The Bureau’s costs are reimbursed by the Federal Reserve Board, which in turn passes its costs to banks and other financial institutions. The increased costs of modifying U.S. currency to accommodate the visually disabled are trivial when compared to the overall size of the U.S. banking system.
Defendant’s claim that any new tactile features would reduce the useful life of currency is without merit. Defendant has not produced any test results which would indicate that banknote durability would be compromised by the addition of a tactile feature. Moreover, Defendant’s estimate as to the current useful life of currency is grossly inflated when compared to estimates provided by the Federal Reserve Board.
Full participation in society depends upon the ability to engage in routine currency transactions in an independent and confidential manner. There are millions of people who are unable to do so due to the design of currency. Plaintiffs have amply justified their claim for relief, which would substantially alleviate a significant impediment suffered by disabled persons in their daily life activities.
Respectfully submitted, ____________________ JEFFREY A. LOVITKY, D.C. Bar No. 404834 1735 New York Ave., NW, Ste. 500 Washington, DC 20006 (202)429-3393 Attorney for Plaintiffs
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

PLAINTIFF’S RULE 7.1 STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

Pursuant to LCvR 7.1 (h) of the local rules of United States District Court

for the District of Columbia, Plaintiffs submit this statement of undisputed material facts

in support of its motion for summary judgment pursuant to Fed. Rule of Civ. P. 56 (a).

1. U.S. banknotes are identical in size and feel, and virtually identical in color. 2. U.S. banknotes provide no basis whatsoever for denominating by blind persons.
U.S. banknotes contain minimal cues to assist persons with low vision in distinguishing between denominations. 3. Disabled Americans who suffer from visual disabilities experience difficulty in purchasing goods and services, and conducting ordinary commercial transactions, as a result of the design of currency. 4. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, requires reasonable accommodations for individuals with disabilities, with respect to the programs and services of the federal government.

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5. The burden is upon the agency to prove that compliance with the requirements of Section 504 would result in an undue burden upon the agency. See 31 C.F.R. § 17.150(a)(2).
6. In 1983, the BEP conducted a study entitled "A Study of Mechanisms for the Denomination of Currency by the Blind or Visually Impaired", dated August 24, 1983, (hereinafter referred to as the “1983 Study”, and attached hereto as Exhibit P-1).
7. The 1983 Study recommended that BEP seek funding for the development of a sophisticated portable electronic device which could be used by the visually disabled to denominate banknotes. See Exhibit P-1, 1983 Study at pp. 5-6.
8. At the request of Defendant, a separate study was conducted in 1995 by the National Academy of Sciences in connection with the use of currency by the visually impaired (hereinafter referred to as the “NAS Panel” or “NAS Study”, and attached hereto as Exhibit P-2). Panel participants included leading experts in the fields of advanced reprographic technology, materials science, substrate materials, banknote production and currency design, psychophysics, optical engineering, chemical engineering, optics and physics, as well as leading experts in low vision and blindness research. See Exhibit P-2, Preface to NAS Study.
9. The NAS Panel recommended that Defendant include the following features in near term (1-3 years) currency redesigns: (a) variation in both height and length of banknotes; (b) use of large, high contrast denomination numerals on a uniform background; (c) use of different predominant colors for each denomination; and
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(d) use of denominational UPC coding which could be used by external devices in denominating currency. Additionally, the NAS Panel recommended that the specifications for these new features should strive for sufficient differentiation between denominations to permit rapid, effortless performance. See Exhibit P-2, NAS Study, at pp. 4-5, 75-76. The NAS Panel found that each of the above features could be incorporated based on technologies which are already known and widely used. Id. at pp. 68-70. 10. The NAS Panel noted that banknote size varies with denomination in over 120 countries, and that the technology for accomplishing this change is currently in existence. Id., at p. 40. The Panel also found that this feature is generally considered very useful by the visually impaired. Id. at pp. 40-44. The Panel cited to studies which indicate that variation of at least 5-7mm in both length and height of the banknote results in users achieving a 90% success rate with only 30 minutes of learning. Id. at p. 42. 11. The NAS Panel found that use of a large high contrast numeral would require little or no additional capital investment. See Exhibit P-2, NAS Study, at p. 69. The Panel recommended near term (1-3 years) implementation of this feature. Id at pp. 4, 68-70. The Panel stated that people with acuity as low as 20/240 could be assisted if the numeral were 60 percent of the current note height. Id. at p. 46. People with acuity at the range of 20/160 would be assisted if the numeral were at least 40 percent of banknote height. Id. 12. The NAS Panel found that use of different predominant colors for each denomination would be relatively inexpensive to implement with little or no
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additional capital investment. See Exhibit P-2, NAS Study, at p. 70. The Panel determined that enough research currently exists to allow experts to identify the primary colors which would be most useful to the visually impaired in facilitating denomination. Id. at p. 47. The Panel recommended near term (1-3) years implementation of this feature. Id. at pp. 68-70. 13. The NAS Panel also recommended that Defendant pursue a broad research agenda, with a view towards identifying potential combinations of features which could be employed to enhance denomination. Specifically, the NAS Panel recommended that “high priority” research be conducted to determine “optimum dimensions, optical contrast, location, colors, physical size” for making recognition and denomination of U.S. banknotes easy and convenient for visually disabled individuals. See Exhibit P-2, NAS Study, at pp. 65, 76. 14. The NAS Panel recommended “near or mid-term research” to determine the gradations which will permit reliable human discrimination of low-relief tactile features. Id., at p. 65. See also pp. 5, 76. The NAS Panel urged the Defendant to conduct research into the development of durable tactile features. See Exhibit P2, NAS Study, at pp. 5, 59, 62, 63, 86. The NAS Panel also recommended that Defendant work with device developers to develop improved external devices which could be useful to the visually impaired. Id at pp. 76. The Panel recommended that Defendant involve appropriate user groups as early as possible to ensure selection of those features which would be most useful to the disabled population. Id at pp. 6, 77.
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15. The manner in which Defendant has added color to banknotes is completely inconsistent with the recommendations of the NAS Panel. The NAS Panel recommended the use of a different predominant color for each banknote. See Exhibit P-2, NAS Study at p. 47. The NAS Panel stated that a mix of colors is not desirable from a denomination standpoint. Id. The Committee also warned that blues and greens should not be used together, as it is particularly difficult to discriminate between these colors. Id.
16. The color scheme adopted by the Defendant relies upon a mix of subtle colors, instead of a single predominant color for each denomination. Background colors of blue and red have been added to the $50 note. See Exhibit P-3, Reproduction of $50 and $20 notes. The $20 note features background colors of blue, peach, and green. Id. However, the main colors of $50 and $20 denominations remain green and black; the other colors are present only in subtle shades in secondary design elements. The BEP website properly describes the background colors on the $20 and $50 notes as “subtle.” See Exhibits P-4 and P-5, BEP Description of Color on $20 and $50 Notes. The present use of color does not provide adequate contrast between denominations. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 10.
17. Defendant’s introduction of the larger denomination numeral on the reverse of the $5 and higher banknotes is inconsistent with the recommendations of the NAS Panel. The NAS Panel recommended that the large denomination numeral be at least 40% - 60% of the current banknote height of 66.3 mm, preferably on each side of the banknote. See Exhibit P-2, NAS Study, at p. 46. See also Exhibit P-6,
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Def. Response to Interrogatory No. 15. Therefore, at a minimum, the large denomination numeral should be 26.52 mm. The NAS Panel also recommended that the large denomination numeral be printed in black ink against a white background, or in white against a black background. See Exhibit P-2, NAS Study at p. 46. 18. The larger denomination numeral on the $5, $10, $20, and $50 banknotes is 13 mm, or slightly less than 20% of the current banknote height. See Exhibit P-7, Def. Response to Interrogatory No. 12. This is less than half of the size recommended by the NAS Panel. The larger denomination numeral is placed on only one side of the banknote, contrary to the recommendations of the NAS Panel. See Exhibit P-2, NAS Study at p. 46. See also Exhibit P-9, Declaration of Lorraine Marchi, at ¶7. The larger denomination numeral has not been included on the $1, $2, and $100 banknotes. 19. The larger denomination numeral introduced by Defendant is printed in green, as opposed to black ink, thereby reducing contrast levels. 20. Defendant’s sole reason for using green ink is that it is the color traditionally associated with U.S. banknotes. See Exhibit P-10, BEP Explanation for Use of Green Ink. 21. The BEP’s 1983 Study evaluated various features which could be used by the visually disabled to denominate currency. The 1983 Study concluded that the most practical solution was to pursue the development of a portable electronic device capable of denominating banknotes. See Exhibit P-1, 1983 Study, at p. 6.
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22. The NAS Panel noted that portable electronic devices capable of denominating currency tend to be unreliable, slow, and expensive. See Exhibit P-2, NAS Study at p. 25.
23. Ms. Julia Wilson, a Supervisory Paralegal at the U.S. Department of Justice tested the Brytech Note Teller 2 electronic currency reader. See Exhibit P-11, Declaration of Ms. Julia Wilson. The test results at Table A relates to the newer series of bills (Series 2002 through 2004), and the test results at Table B relate to older series (Series 1981 through 2001). The test results at Table A reveal a 25% error rate, while the test results at Table B reveal a 6% error rate. Id. at ¶5. Ms. Wilson’s Declaration further notes that the retail price of this item is $270 per unit. See Exhibit P-11, Declaration of Julia Wilson, at ¶ 8.
24. In August 2004, the BEP issued Request for Quotations (“RFQ”) 04-0687 seeking the development of a pocket sized device with a target retail price of $35 or less, which could be used to determine the denomination of US currency. See Exhibit P-13, RFQ Specifications. Under the terms of the RFQ, the selected vendor would be provided with up to $50,000 to develop a prototype of a device which would have an inconclusive read rate of no greater than ten per thousand notes read, and an incorrect read rate of no greater than one per fifty thousand notes read. The successful vendor would have three years after delivery of a working prototype to bring the device to the retail market. If the vendor failed to bring the device to the retail market within the three year time frame, the design would be made public, and other companies would be invited to bring the device to the retail market. Id., at pp. 1, 3. An award incorporating the terms of the RFQ was
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made to Mnemonics Technologies, Inc., on September 30, 2004. See Exhibit P-7, Def. Response to Interrogatory No. 13. 25. The specifications do not specify the response times which the prototype must be capable of achieving. See Exhibit P-13, RFQ Specifications. The specifications require that the prototype be capable of reading banknotes in only two out of four orientations. Id. 26. If a successful prototype is developed, the vendor has three years to bring the design to the retail market. Id. If the vendor fails to achieve this goal, then the design reverts to the public domain, in which case the design may still not be brought to the retail market. Id. 27. The RFQ states that the design “should facilitate the ability to mass-produce the units with a retail target price of less than thirty-five U.S. dollars.” Id. 28. The retail price of such a unit depends largely on the size of the market and the number of people willing to purchase the item. 29. Defendant states that “the agreement does not establish a ceiling on the sale price of the device to the public” and further that the government “…does not exercise control over the ultimate sale price.” See Exhibit P-14, Def. Admissions No’s 3 & 4. 30. The Treasury will not assume any role in marketing the unit, or in developing sales channels for the unit. See Exhibit P-13, RFQ Specifications. at pp. 2-3 (Questions and Answers No’s. 3, 10, 11). 31. Defendant will not provide any subsidy to qualified individuals in purchasing the unit. See Exhibit P-13, RFQ Specifications, at pp. 3-4 (Questions & Answers
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No’s 7, 12). Defendant is unwilling to underwrite any portion of the cost of the unit for individuals who may be unable to afford it. Id. 32. The Secretary's regulations state that the financial burden is upon the Defendant to provide assistive devices to individuals with disabilities. See 31 C.F.R. §17.160(a)(1). The portable hand held electronic reader which is being developed with funds from the Defendant is an auxiliary aid. 31 C.F.R. §17.103(c). 33. There are 937,000 legally blind adults 40 years and older in the United States, of whom 648,000 are over the age of 80. See Exhibit P-37, NIH Statistics on Visual Impairments. In the highly improbable event that each of these individuals requested a device, the total cost to the U.S. government would be approximately $33 million (assuming a unit cost of $35). More likely, only a fraction of the blind would request the device. 34. The likelihood of achieving the target retail price of $35 or less for the note teller being developed with federal funds would be significantly enhanced if the government purchased a significant quantity, thereby resulting in economies of scale. Other governments provide such devices to their visually disabled citizens at no charge. See Exhibit P-20, Bank of Canada, Description of Accessibility Features. 35. Defendant claims to have conducted research and testing with respect to the following features: (a) inclusion of a large denomination numeral on the reverse side of the banknote; (b) inclusion of an embossed feature currently used on Canadian banknotes; (c) inclusion of a micro-perforation design currently used in
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Swiss currency, and (d) determination as to optimal color patterns for the visually disabled. See Exhibit P-6, Def. Response to Interrogatories No’s. 14-16. 36. Defendant states that it obtained an assessment by the University of Minnesota Laboratory for Low-Vision Research in connection with its design of the larger denomination numeral placed on the reverse side of the $5 and higher banknotes. See Exhibit P-6, Def Response to Interrogatory No. 15. However, Defendant is unable to locate a copy of this assessment. See Exhibit P-14, Def. Response to Document Production Request No. 19. Defendant is not certain whether the results of this assessment were conveyed orally or in writing. See Exhibit P-15, Letter from Defendant’s Counsel dated August 1, 2005. 37. Defendant states that it tested an embossed feature which is currently used on Canadian banknotes. See Exhibit P-6, Def. Response to Interrogatory No. 14. Canadian currency incorporates a series of embossed dots which are used by the visually disabled to distinguish between denominations. This embossed feature was applied to ten (10) U.S. banknotes. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 8. Defendant stated that the Canadian feature “was found to have insufficient durability to approximate the average length of time required for Federal Reserve notes to remain in circulation.” See Exhibit P-6, Def. Response to Interrogatory No. 14. 38. Defendant was asked to produce the results of any testing which it conducted to determine the durability of the Canadian feature. See Exhibit P-14, Def. Response to Document Production Request No. 17. In response, Defendant furnished the document entitled “Tactile Feature for the Blind.” Id. However, this
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document reflects only durability testing of the Canadian feature on Canadian banknotes. See Exhibit P-16, Tactile Feature for the Blind, at pp. 6-7. Defendant has not produced any test results reflecting upon the durability of the Canadian feature on U.S. banknotes. 39. The Canadian Bank Note Company developed and patented the Canadian tactile feature, and is one of two companies under contract to print paper currency for the Bank of Canada. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 3,4. 40. At the request of Defendant, the Canadian Bank Note Company conducted preliminary wear testing on ten (10) U.S. banknotes using the Canadian formula. After wear testing, the relief provided by the Canadian feature on U.S. banknotes was reduced on average from 110 microns to 20 to 35 microns. Id. at ¶ 8. Based on research conducted by the Canadian Bank Note Company, the 20 to 30 micron range on worn banknotes was found to be “satisfactory” with a 55 micron height or greater being “very good” as rated by the visually impaired. Id. 41. The Canadian Bank Note Company states that it is probable that the embossed feature could be applied to U.S. banknotes in a manner which would be useful to the blind. Id. at ¶ 9. 42. Defendant’s claim to have conducted durability testing on the Canadian feature contradicts Defendant’s sworn statement in which it admits that it is unable to determine the extent to which an embossed feature would reduce the useful life of U.S. banknotes, or even whether such reduction would be significant. See Exhibit P-7, Def. Answer to Interrogatory No. 5.
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43. Defendant could not have reached any meaningful conclusions as to the durability of the Canadian feature on the basis of a test sample of ten (10) U.S. banknotes. Sample sizes of 1000 banknotes notes are normally required to produce statistically valid conclusions. See Exhibit P-36, Declaration of H.H. Holton, at ¶ 10.
44. Defendant also states that it tested a micro-perforation design developed for use as a security feature in Swiss currency to determine whether it could be useful to the visually disabled. See Exhibit P-33, Copy of Swiss Bank Note. Defendant stated that the presence of the perforation design was detectable by visually impaired persons. However, “the specific patterns could not be identified sufficiently for accurate denomination of currency. An analysis to determine the effectiveness and durability of the feature indicated that the perforation pattern could be altered or simulated easily and that the holes left by perforating accumulated dirt and debris.” See Exhibit P-6, Def. Response to Interrogatory No. 14.
45. Defendant was asked to produce the results of any testing which it conducted to determine the effectiveness and the durability of the micro-perforation feature. See Exhibit P-14, Def. Response to Document Production Request No. 18. In response, Defendant furnished a single page memorandum from Robert Stone to Thomas A. Ferguson, dated September 4, 2002. Id. However, this memorandum merely requests approval to provide twenty blank pieces of U.S. banknote paper to Switzerland for testing. See Exhibit P-17, Memorandum from Robert Stone to Thomas A. Ferguson, dated September 4, 2002. Defendant has not produced any
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test results reflecting upon the durability or the effectiveness of the Swiss microperforation feature on U.S. banknotes. 46. Defendant admitted that the presence of the micro-perforation design was detectable by persons with visual disabilities. See Exhibit P-6, Def. Response to Interrogatory No. 14. See also Exhibit P-18, Report Prepared by Deloitte & Touche/Shugoll, at p. 22. The micro-perforation method could provide a meaningful denomination cue merely by virtue of its location on the banknote, even if the specific micro-perforation pattern is not itself sufficient to provide denomination information. 47. Defendant was also asked to describe any testing which it conducted to determine the optimal color schemes which would be useful to the visually disabled. Defendant stated that it contracted with Deloitte & Touche/Shugoll to conduct a research study as to how color may be useful to the visually disabled in denominating currency. See Exhibit P-6, Def. Response to Interrogatory No. 16. 48. The purpose of the Deloitte study was to determine public awareness of design and counterfeit features in the new currency, and to determine the receptivity of the target audiences to various anti-counterfeiting features. See Exhibit P-18, Report Prepared by Deloitte & Touche/Shugoll, June 2002, Executive Summary at p.2. The target audiences were derived from individuals in the following groups: consumers, bank tellers, cashiers, gaming industry employees, law enforcement officials, and teachers. Id. The study protocols expressly excluded from participation individuals with visual impairments. Id. at Appendix A, pp. 4R, 6C.
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49. Defendant’s future plans to make banknotes accessible to persons with visual disabilities are limited to the commissioning of another study, the addition of colors to all denominations, and continuing to include a larger denomination numeral on the reverse side of the banknote. See Exhibit P-6, Def. Response to Interrogatory #20.
50. The conclusions of the 1983 and 1995 studies were well known to Defendant when it conducted its 1996 and 2004 currency redesigns.
51. Defendant’s statement that it will add color to all denominations is contradicted by the most recent report from its Chief Financial Officer. According to the latter, Defendant has no plans to redesign the $5 note, and the $1 and $2 notes will not be redesigned. See Exhibit P-34, 2004 CFO Report, at p. 7.
52. The NAS Panel found that different sized currency is an established practice in over 120 countries. See Exhibit P-2, NAS Study at p. 40. The Panel found that 24 countries have adopted a specific scheme involving the use of large denomination numerals. Id. at p. 102. The Committee found that 167 out of 171 issuing authorities use a clearly differentiated color scheme for all denominations. Id., at p. 102. At the time of the 1995 NAS Study, there were 16 countries that used intaglio printing to produce tactile marks on each denomination. Id., NAS Study at p. 103. Another 7 currencies place tactile features on certain denominations. Id.
53. The Euro was introduced on January 1, 2002. During the development of the Euro, designers and printing experts consulted the European Blind Union.
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54. On the front of each Euro note is a large denomination numeral over 2 centimeters tall, which is set against a pale background. This large denomination numeral is manufactured with intaglio printing, and is designed to be perceptible to touch. See Exhibit P-19, Euro Vision, Understanding Euro Notes and Coins, A Guide for People with Poor Vision, jointly published by the European Blind Union, European Commission, and the European Central Bank, at p. 4. Specific patterns using intaglio print which are perceptible to touch are also printed along the edges of the EUR 200 and EUR 500 banknotes to help with recognition. These edge patterns are printed using the intaglio method. Id. at p. 5. Additionally, the notes have a foil feature which is also perceptible to touch. The foil feature on the 5, 10, and 20 Euro notes differs in shape and position from the foil feature on the 50, 100, 200, and 500 notes. Id at p. 6.
55. The length of the Euro increases by 6-7 mm with each denomination. The smallest note, which is the 5 Euro, is 12 cm long, while the largest note is 16 cm long. The 5, 10, 20, 50, and 100 notes also increase in height. The 5 Euro note is 6.2 cm in height, while the 100 Euro note is 8.2 cm in height. Id at p. 5.
56. Each Euro denomination has a striking dominant color, used on the front and the reverse sides. The dominant colors for each Euro denomination are: 5 Euro – Grey; 10 Euro – Red; 20 Euro – Blue; 50 Euro – Orange; 100 Euro – Olive Green; 200 Euro – Yellow-Brown; 500 Euro – Purple. Id. at p. 6.
57. The Canadian currency was redesigned in 2001 after extensive consultation with blind and visually impaired Canadians. The newly redesigned currency incorporates a series of symbols formed by groupings of six raised dots separated
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by a smooth surface. Each symbol is composed of two columns of three raised dots. These dots are embossed and back-coated to enhance their durability. See Exhibit P-20, Bank of Canada, Description of Accessibility Features. 58. The number and position of these symbols vary according to the denomination. The $5 note has one symbol, the $10 note has two symbols separated by a smooth surface, the $20 note has three symbols separated by two smooth surfaces, and the $50 note has four symbols separated by three smooth surfaces. Like the $10 note, the $100 bank note has two symbols, but the smooth surface between them is wider. Id. 59. The Canadian feature was subject to extensive durability testing prior to its incorporation. See Exhibit P-16, Tactile Feature for the Blind, at pp. 6-7. The results demonstrate that the embossed feature would not reduce the durability of Canadian banknotes. Id. The embossed symbols provide a relief of 140 microns, which relaxes back to 125 microns after issuance. Id., at p. 5. After a few minutes of training, users are able to denominate using the embossed symbol within an average of 13 seconds. Id. The redesigned notes did not present any stacking concerns to the Bank of Canada. Id. at p. 7. 60. The issue of cost of making accommodations for the disabled was addressed by the BEP in its 1983 study. The cost impacts of making currency accessible to the visually disabled were summarized in Figure 2 of the BEP study. See Exhibit P-1, 1983 Study. 61. The issue of cost was also addressed by the NAS Panel. The NAS Panel concluded that at least three of the features which could be useful to the visually
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disabled, i.e., color, large denomination numeral, and holes, could be achieved with little additional capital expenditures. Exhibit P-2, NAS Study, at pp. 69-70. The NAS Panel also found that use of different predominant colors for each denomination, and inclusion of a large denomination numeral, could be implemented within a 1-3 year period. Id., at pp. 68-70. 62. Cost impacts were addressed by Defendant in responding to Plaintiff’s Interrogatories during the course of this litigation. Defendant was asked to estimate the total costs involved in adding specific accessibility features to U.S. currency, including research, design, and manufacturing expenses. The following estimates provided by Defendant reflect the cost of modifying all denominations, including the $1 note. 63. Defendant states that adding a large denomination numeral, which is at least 60% of current banknote height, would require a one time outlay of $4,500,000, plus additional annual costs in the amount of $400,000. See Exhibit P-7, Def. Response to Interrogatory No. 8. The use of large geometric shapes on banknotes would require a one time outlay of $4,500,000, with no additional annual costs. See Exhibit P-7, Def. Responses to Interrogatory No. 10. The use of different predominant colors on each banknote would require a one time outlay of $48,000,000, with additional annual cost in the amount of $20,000,000. See Exhibit P-7, Def. Response to Interrogatory No. 9. None of these features would have any impact on banknote durability. See Exhibit P-6, Def. Admissions No’s 1 and 2.
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64. Defendant estimates that the cost impact of varying the length and height of currency would be $245 - $320 million in initial costs. See Exhibit P-21, Declaration of Thomas Ferguson, Director of the Bureau of Engraving and Printing, dated August 28, 2002 (hereinafter the “Ferguson Declaration”), ¶ 52. However, $70-$90 million of the initial start up costs is related to public education expenses, as opposed to any cost involved in the production of currency. Id.
65. The Ferguson Declaration further refers to increased annual expenses in the amount of $143 - $174 million related to varying the height and length of banknotes. Id. However, $92 - $109 million of the estimated increased annual costs are related to replacing prematurely worn currency. Id. The additional cost of replacing prematurely worn currency would only be incurred if an embossed numeral or tactile feature is included, in addition to the dimensional changes. See Ferguson Declaration, ¶¶ 49-51. Therefore, the additional annual costs of varying the height and length of banknotes, without also including an embossed numeral or other tactile feature, would be $51 - $65 million.
66. Defendant states that the cost to emboss a numeral on banknotes would require a one-time outlay of approximately $45.5 million, plus additional annual costs of $16,000,000. See Exhibit P-7, Def. Response to Interrogatory No. 5. Defendant states that the total costs to include a micro-perforation feature perceptible to touch would require a one time outlay of $75 million, plus additional annual costs of $9 million. See Exhibit P-7, Def. Response to Interrogatory No. 6. Defendant states that the cost of adding a foil feature to banknotes which is perceptible to
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touch would result in a one-time outlay of $51.5 million, plus additional annual costs of $15.3 million, excluding the cost of the foil, which the Defendant declines to estimate. See Exhibit P-6, Def. Response to Interrogatory No. 22. 67. U.S. currency is currently producing using the intaglio method. See Exhibit P-22, BEP Description of Intaglio Process. Defendant declines to estimate the costs of using intaglio printing to create a tactile feature on banknotes because it considers it unlikely that such a feature could be produced. See Exhibit P-6, Def. Response to Interrogatory No. 21. 68. The Euro uses the intaglio method to create a large denomination numeral which is perceptible to the touch. See Exhibit P-19, Euro Vision, Understanding Euro Notes and Coins, at p. 4. Specific patterns using intaglio print which are perceptible to touch are also printed along the edges of the EUR 200 and EUR 500 banknotes to help with recognition. Id. at p. 5. The Japanese yen also uses intaglio print to incorporate a tactile feature specifically designed to assist the blind in denominating currency. See Exhibit P-32, Bank of Japan Description of Yen Note. At the time of the 1995 NAS Study, there were 16 countries that used intaglio printing to produce tactile marks on currency. See Exhibit P-2, NAS Study at p. 103. 69. Defendant’s cost estimates are based on the cost of modifying all denominations, including the $1.00 note. The $1 note consists of approximately 50% of all currency production. See Exhibit P-21, Ferguson Declaration at ¶5. Defendant asserts that it is precluded from modifying the $1 note due to legislative restrictions. See Def. Motion for Summary Judgment, at 18. Therefore, the cost
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estimates provided by Defendant are likely to be significantly reduced if the cost of modifying the $1 note is subtracted. 70. Defendant asserts that the initial costs to design and engrave an enlarged denomination numeral would be $4,500,000. Documents provided by Defendant to support this estimate indicate that the initial cost to design and engrave the larger denomination numeral equals only $354,544. The latter figure is based upon an estimate of a total of 2,650 engraving hours, at an hourly rate of $133.79. See Exhibit P-23, Cost Impact of Enlarged Numeral, Def. Response to Third Document Production Request. 71. Defendant increases its one-time cost estimate from $354,544 to $4.5 million solely on the basis of a two sentence email to the BEP legal counsel, which neither explains the increase nor even references a figure of $4.5 million. See Exhibit P-24, Def. Response to Document Production Request No’s 10-16, Answer No. 12, and Exhibit P-25, email from Len Olijar, dated April 19, 2005. Defendant would be required to expend 33,634 additional engraving hours to design the larger denomination numeral in order to reach an initial outlay cost of $4.5 million, assuming an hourly rate of $133.79. 72. Defendant asserts that to emboss currency it will be required to purchase 12 embossing machines at $3 million each (See Exhibit P-26, Cost Impact of Embossing Feature, Def. Response to Third Document Production Request); to perforate currency it will be required to purchase 12 perforation machines at $5.5 million each (Exhibit P-27, Cost Impact of Perforation Feature, Def. Response to Third Document Production Request); and to add foil it will be required to
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purchase 12 foil stamp machines at $3.5 million each (Exhibit P-28, Cost Impact of Foil Stamp, Def. Response to Third Document Production Request). Defendant provides no documentation as to how it arrived at its estimated cost per machine, notwithstanding Plaintiff’s request for all documents supporting Defendant’s cost estimates. See Exhibit P-24, Def. Response to Document Production Requests No’s 10-16. 73. Defendant states that each new embossing machine will require hiring 2 pressman and 1 KG-4 helper per machine shift (Exhibit P-26, Cost Impact of Embossing Feature); each new perforating machine will require hiring one additional plate printer per machine shift (Exhibit P-27, Cost Impact of Perforation Feature), and each new foil stamp machine will require hiring 2 pressman and 1 KG-4 helper per machine shift (Exhibit P-28, Cost Impact of Foil Stamp). Defendant provides no supporting documentation as to how it arrived at its estimated staffing cost per machine. 74. Defendant asserts that the addition of different colors for each denomination would require a one time additional equipment cost of $48 million, plus increased annual costs of $20 million, primarily for labor. See Exhibit P-7, Def. Response to Interrogatory #9. Documents supporting this estimate reflect that the additional capital costs consist of the purchase of 4 new printing presses at $12 million each. See Exhibit P-29, Cost Impact of Offset Printing Feature, Def. Response to Third Document Production Request. The increased labor cost consists primarily of the additional labor required to operate each new machine. Id.
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75. Defendant’s cost estimates are inconsistent with the findings of the 1995 NAS Panel, which found that little additional capital investment would be required to add color to banknotes. See Exhibit P-2, NAS Study, at p. 70. In any event, Defendant has already added different colors to the $20 and $50 notes. See Exhibit P-7, Def. Response to Interrogatory #9. Accordingly, the increased costs reflected above can only consist of the amounts required to add color to the remaining five denominations.
76. Defendant states that it currently plans to add different background colors to all seven denominations. See Exhibit P-6, Def. Response to Interrogatory #20. Defendant will incur the additional costs of adding different background colors for each denomination regardless of the outcome of this litigation.
77. Defendant states that it has spent $4.2 billion over the past 10 years to produce currency. See Exhibit P-7, Def. Response to Interrogatory No. 1. This equates to an average of approximately $420,000,000 per year. Defendant further states that every aspect of currency production involves the incorporation of anticounterfeiting features. See Exhibit P-7, Def. Response to Interrogatory No. 2. Therefore, Defendant states that it has spent $4.2 billion for this purpose as well. Id.
78. The use of different predominant colors for each denomination would result in increased annual costs $20 million (Exhibit P-7, Def. Response to Interrogatory No. 9), which is less than 4.7% of the average annual $420 million production cost.
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79. The inclusion of an embossed numeral would result in increased annual costs of $16 million (Exhibit P-7, Def. Response to Interrogatory No. 5), or approximately 3.8% of average annual production costs.
80. Addition of a foil feature would result in increased annual costs of $15.3 million (Exhibit P-6, Def. Response to Interrogatory No. 22), excluding the cost of the foil itself which Defendant declines to estimate. This annual increase is approximately 3.6% of the average yearly $420 million production cost.
81. The use of a micro-perforation feature would result in additional annual costs of $9 million (Exhibit P-7, Def. Response to Interrogatory No. 6), or approximately 2% of average annual production costs.
82. The inclusion of a large denomination numeral would result in increased annual costs of $400,000 (Exhibit P-7, Def. Response to Interrogatory No. 8), which is approximately .095 percent, or less than one-tenth of one percent, of the average annual production costs.
83. The use of large geometric shapes on banknotes to indicate denomination would result in no increased annual costs. See Exhibit P-7, Def. Responses to Interrogatory No. 10.
84. Defendant calculated the cost increases associated with making the design modifications sought by Plaintiffs on the basis of its costs per 1000 notes. See Exhibit P-23, Cost Impact of Enlarged Numeral; Exhibit P-26, Cost Impact of Embossing Feature; Exhibit P-27, Cost Impact of Perforation Feature, Exhibit P28, Cost Impact of Foil Stamp; Exhibit P-29, Cost Impact of Offset Printing Feature. Approximately 50% of the Bureau’s production volume consists of the
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$1 note. See Exhibit P-21, Ferguson Declaration at ¶5. Therefore, the annual cost increases provided by Defendant in connection with making these design modifications must also be decreased by 50%, assuming that no modifications are made to the $1 note. The initial equipment costs estimated by Defendant must also be proportionately reduced by one-half, as only 50% of the estimated equipment would be required to meet the correspondingly reduced production volumes. 85. Defendant states that it has already spent approximately $49 million to make currency accessible to persons with visual disabilities. See Exhibit P-7, Def. Response to Interrogatory No. 4. Defendant states that these costs were incurred for the purpose of adding color and a large denomination numeral. Id. 86. Defendant states that its current cost estimates do not include any reduction in the useful life of the currency due to degradation of the embossed numeral or the micro-perforation feature. Defendant states that the reduction in the useful life of banknotes associated with degradation of these features “cannot be determined.” See Exhibit P-7, Def. Response to Interrogatories No’s. 5, 6. The Ferguson Declaration states that no testing has been conducted to determine the extent to which the useful life of a note would be reduced by inclusion of such features. See Exhibit P-21, Ferguson Declaration, ¶ 50. 87. Defendant’s estimates as to the useful life of currency are inconsistent with estimates provided by the Federal Reserve Board. The Director of the BEP stated that a “on average, a five dollar bill is withdrawn after approximately two years in circulation, a ten dollar bill is withdrawn after approximately 3 years in
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circulation, a twenty dollar bill is withdrawn after approximately four years in circulation, and both a fifty and a one hundred dollar bill is withdrawn after approximately nine years in circulation.” See Exhibit P-21, Ferguson Declaration at ¶ 50. 88. The Federal Reserve Board states that the average life of a $5 note is 16 months, a $10 note is 18 months, a $20 note is 24 months, a $50 note is 55 months, and a $100 note is 89 months. See Exhibit P-35, Federal Reserve Board FAQ. 89. The BEP receives no appropriations from Congress. See Exhibit P-21, Ferguson Declaration, ¶ 7. Rather, its operations are financed by means of a revolving fund. This fund is reimbursed through product sales for the direct and indirect costs of operations. Id. The Bureau is authorized to add an amount sufficient to cover any new capital investments and additional working capital requirements in the prices it charges for its products. Id. 90. In the case of currency production, the Bureau’s costs are reimbursed by the Federal Reserve Board. Id. Any increased costs to modify U.S. currency to accommodate the visually disabled would be passed on to the Federal Reserve System. See Exhibit P-21, Ferguson Declaration, ¶ 22. The Federal Reserve System will in turn pass through these costs to its member banks and other private financial institutions. Id. 91. Plaintiff Otis Stephens, who is blind and has no pattern vision whatsoever, must rely upon a sighted individual to inform him as to the denomination of a particular banknote. See Complaint, ¶12. See Exhibit P-30, Declaration of Otis Stephens,
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at ¶¶ 3, 5, 7, 11. Mr. Stephens then uses a system of folding bills in different ways to distinguish between denominations. Id., at ¶ 6. 92. Plaintiff Patrick Sheehan is able to distinguish between banknotes of varying denominations only in the very best of lighting conditions. See Complaint, ¶13. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 4. Mr. Sheehan also uses a system of folding bills in different ways to distinguish between denominations. Id., at ¶ 5. 93. Plaintiffs Sheehan and Stephens often hand out larger denominations than they intended. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 7. See Exhibit P30, Declaration of Otis Stephens, at ¶ 7. 94. The visually disabled individual is at a distinct disadvantage if a dispute occurs as to what denomination was actually handed to a vendor. See Exhibit P-12, Declaration of OurMoneyToo.org, at p. 1. 95. The system of folding bills provides no assistance in ascertaining whether a vendor provides the correct denominations in return. Id. at p. 1. 96. There are approximately 3.3 million adults 40 years and older in the United States who are visually impaired, i.e., have corrected visual acuity no better than 20/40 in the better eye. About 937,000 of these people are legally blind for social security disability purposes. Exhibit P-37, NIH Statistics on Visual Impairments. Visual impairments are age related. Approximately 2.7 million of the 3.3 million visually impaired people adults in the United States are over the age of 70. Id. As the number of older Americans increases, the number of people with low vision
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and other visual impairments will also increase. Exhibit P-9, Declaration of Dr.

Lorraine Marchi, at ¶ 6.

97. Full participation in society depends upon the ability to engage in routine

currency transactions in an independent and confidential manner. Currency

transactions are integral to the routine process of buying and selling merchandise,

using vending machines, and participating in daily life activities.

98. The possibility of human mistake exists in all currency transactions. However, the

visually disabled individual is less likely to detect such errors due to their inability

to denominate banknotes.

99. The visually disabled are frequently recognizable as having substantial life

impairment. See Exhibit P-30, Declaration of Otis Stephens, ¶ 8. The visually

disabled are completely at the mercy of dishonest merchants when conducting

currency transactions, as they have no independent means to discern whether the

change they are being handed back is correct. This factor itself produces fear and

anxiety on the part of the visually disabled when engaging in routine currency

transactions. See Exhibit P-8, Declaration of Patrick Sheehan, at ¶ 9; See Exhibit

P-30, Declaration of Otis Stephens, at ¶ 13.

100.

Errors in currency transactions, whether due to fraud or mistake, may have

a significant financial impact. The majority of the visually disabled are elderly

individuals. The elderly as a group comprise a disproportionately high percentage

of people living at poverty levels. A $20 dollar currency error involving an

elderly individual could produce a significant financial hardship. See Exhibit P-9,

Declaration of Lorraine Marchi, at ¶ 5.

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101.

There are a vast number of employment positions which demand the

ability to engage in spontaneous currency transactions. These positions often

exist in the retail sector, such as cashiers at drug and grocery stores. The visually

disabled are precluded from obtaining employment opportunities in these areas

due to the design of U.S. currency. See Exhibit P-12, Declaration of

OurMoneyToo.org., at p. 3.

Respectfully submitted,

____________________ JEFFREY A. LOVITKY D.C. Bar No. 404834 Law Office of Jeffrey A. Lovitky 1735 New York Ave., NW, Ste. 500 Washington, DC 20006 (202) 429-3393 Attorney for Plaintiffs

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 Case 1:02-cv-00864-JR Document 33-1 Filed 08/31/2005 Page 1 of 68

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

DEFENDANT'S RENEWED MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
The defendant, by his undersigned counsel, hereby moves that this action be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and that summary judgment in defendant's favor be granted under Rule 56 of the Federal Rules of Civil Procedure, on the grounds that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.
The grounds for this motion are more fully set forth in the accompanying Memorandum of Points and Authorities in Support of Defendant's Renewed Motion to Dismiss or for Summary Judgment and Defendant's Statement of Material Facts as to Which There Is No Genuine Issue. Dated: August 31, 2005
Respectfully submitted, PETER D. KEISLER Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney

Case 1:02-cv-00864-JR Document 33-1 Filed 08/31/2005 Page 2 of 68 STUART A. LICHT, N.Y. Bar 1237643 Assistant Director W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT
2

Case 1:02-cv-00864-JR Document 33-1 Filed 08/31/2005 Page 3 of 68

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S RENEWED MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT

August 31, 2005

PETER D. KEISLER Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
STUART A. LICHT, N.Y. Bar 1237643 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel
Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANT

Case 1:02-cv-00864-JR Document 33-1 Filed 08/31/2005 Page 4 of 68
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTORY AND ADMINISTRATIVE BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Blind and Visually-Impaired Persons Have "Meaningful Access" to the Existing Currency, Such that Plaintiffs Cannot Show "Discrimination" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. Changing the Currency as Requested by Plaintiffs Would Impose Undue Burdens and, Thus, Would Not Constitute Reasonable Accommodation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. Plaintiffs Fail to Invoke any Waiver of Sovereign Immunity Applicable to Their Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV. Two of Plaintiffs' Prayers for Relief Must Be Dismissed or Stricken . . . . . . . . . 33 A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury . . . . . . . . . . . . . . . . 34 B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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INTRODUCTION The plaintiffs seek declaratory and injunctive relief requiring major changes in the United States currency. Plaintiffs cannot, however, make out a prima facie case under the Rehabilitation Act of 1973, which would require them to demonstrate, among other things, that blind and visually-impaired persons do not have "meaningful access" to the existing currency. See Alexander v. Choate, 469 U.S. 287, 301 (1985). In fact, the individual plaintiffs and the Rule 30(b)(6) designee of the American Council of the Blind ("ACB") have provided deposition testimony and other evidence establishing that they handle currency transactions with very little difficulty, that they use currency with considerable frequency, and that they are almost never defrauded in currency transactions. Even if plaintiffs could make out a prima facie case, changing the currency as they request would impose an "undue financial and administrative burden" on the government and the public, such that the Rehabilitation Act will not afford the relief they seek. See Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979). The evidence that defendant has provided earlier, regarding the costs and other burdens of changing the currency, is submitted again with this renewed motion. Given that plaintiffs chose not to conduct any depositions during the discovery period and have not designated their own expert witness, that evidence remains unchallenged. As directed by the Court, defendant also submits herewith evidence regarding "expenditures that have been made to modify currency design and production for other purposes" (Memorandum Order, Mar. 31, 2003, docket #14), and those figures show that the costs of plaintiffs' proposed changes vastly exceed the costs of past changes in the currency. Even if the relevant evidence did not so clearly compel judgment in defendant's favor, plaintiffs' claims would have to be dismissed for lack of subject matter jurisdiction because they

Case 1:02-cv-00864-JR Document 33-1 Filed 08/31/2005 Page 6 of 68
have failed to invoke any viable waiver of sovereign immunity in relation to their claims under the Rehabilitation Act. Plaintiffs invoke federal question jurisdiction and the Rehabilitation Act itself in support of the Court's jurisdiction, but neither of those statutes waives sovereign immunity for a Rehabilitation Act claim against the United States outside its capacity as an employer.
For these reasons, summary judgment should be granted for the defendant, or the case dismissed for lack of subject matter jurisdiction.
PROCEDURAL BACKGROUND This action was filed in May 2002. The initiative for filing this lawsuit came from the attorney who represents the plaintiffs, not from the ACB or the individual plaintiffs. See Brunson 306-07.1 The ACB's designee under Rule (3)(b)(6) testified that she suggested the possibility of the lawsuit to other ACB officers, but that counsel for the plaintiffs first brought up the possibility to her. Id. Conceding that "the form and design of United States currency is solely within the discretion of the Secretary of the Treasury," see Complaint ¶ 22; see also 12 U.S.C. § 418, plaintiffs nevertheless assert that the Rehabilitation Act requires the Secretary to make several changes in the currency to enable blind and visually-impaired persons to distinguish more easily among the various denominations. 29 U.S.C. §§ 791 et seq. Specifically, the complaint seeks —
1 A citation to "Brunson," Stephens," or "Sheehan," followed by a number, is a reference to that witness's deposition and page number. Copies of the cited pages of plaintiffs' depositions are submitted herewith — Melanie Brunson's excerpts as Exhibit 1, Dr. Otis Stephens's excerpts as Exhibit 2, and Patrick Sheehan's excerpts as Exhibit 3. Deposition exhibits that are cited herein are submitted with the excerpts of that witness's deposition.
2

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a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral which is at
least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination. See Complaint at 16-17 (emphasis added); see also id. ¶¶ 4, 6 (noting that "[t]his litigation seeks to compel Defendants to implement the recommendations" of a National Academy of Sciences panel — i.e., to vary banknote size and color by denomination, and to include "a high contrast denomination numeral . . . at least 1/2 the size of banknote height"). Defendant has heretofore filed a motion to dismiss and a motion for summary judgment in this case. The motion to dismiss asserted that the form of United States currency is within the specific, express statutory discretion of the defendant, 12 U.S.C. § 418; Complaint ¶ 22; that the existing currency does not constitute "discrimination" against visually-impaired persons in that such persons have "meaningful access" to use of the currency, see Alexander v. Choate, 469 U.S. 287, 301 (1985); and that plaintiffs have not exhausted the administrative procedures prerequisite to seeking judicial relief. See Darby v. Cisneros, 509 U.S. 137, 144 (1993) (court may impose exhaustion requirement as a matter of "judicial discretion"); 31 C.F.R. §§ 17.101, 17.170 (procedure for Rehabilitation Act claims). Defendant also asserted that the Treasurer of the United States should be dismissed as a defendant herein, and that two of plaintiffs' prayers for relief should be dismissed or stricken — that is, those seeking to require the inclusion of specific
3

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features in a redesign of the currency, and to require inclusion of the one-dollar bill in such a redesign.2 On March 31, 2004, the Court denied the motion to dismiss, declining to dismiss this action on any of these bases, or to dismiss or strike either of the prayers for relief covered by the motion, except that the Court dismissed the Treasurer of the United States as a defendant (docket #19).
Defendant's initial motion for summary judgment asserted that the changes in the currency sought by the plaintiffs would impose "undue financial and administrative burdens" on the Bureau of Engraving and Printing, on the Federal Reserve System, and, ultimately, on the public. See Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979). The Court denied that motion on March 31, 2003, finding that the record was inadequate "to determine whether expenditures to accommodate the needs of the blind and visually impaired would be unreasonable," particularly "relative to expenditures that have been made to modify currency design and production for other purposes," and that defendant's evidence on the burdens was "unchallenged" given that discovery had not yet occurred (docket #14).
Subsequently, the parties engaged in discovery for approximately thirteen months. Both sides served and responded to written discovery requests. Defendant also deposed the plaintiffs Dr. Otis Stephens, Patrick Sheehan, and the American Council of the Blind (the latter pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure). The plaintiffs chose not to conduct any depositions.
2 Defendant respectfully continues to believe that this action should be dismissed because the form of United States currency is statutorily committed to the discretion of the Secretary of the Treasury. 12 U.S.C. § 418.
4

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STATUTORY AND ADMINISTRATIVE BACKGROUND Congress is constitutionally empowered "[t]o coin Money [and] regulate the Value thereof." See U.S. Const. art. I, § 8. The country's current monetary system was established by the Federal Reserve Act of 1913. See Act of Dec. 13, 1913, ch. 6, 38 Stat. 251. A portion of section 16 of that enactment, now codified as section 418 of Title 12, governs the production of United States currency: § 418. Printing of notes; denomination and form
In order to furnish suitable notes for circulation as Federal reserve notes, the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of such notes of the denominations of $1, $2, $5, $10, $20, $50, $100, $500, $1,000, $5,000, $10,000 as may be required to supply the Federal Reserve banks. Such notes shall be in form and tenor as directed by the Secretary of the Treasury under the provisions of this chapter and shall bear the distinctive numbers of the several Federal reserve banks through which they are issued. 12 U.S.C. § 418 (emphasis added); see Act of Dec. 13, 1913, ch. 6, § 16, 38 Stat. at 267.3 This section has been amended several times since its initial enactment in 1913. Most recently, Congress amended section 418 to change "the Comptroller of the Currency shall, under the direction of the Secretary of the Treasury, cause plates and dies to be engraved," in the first sentence, to "the Secretary of the Treasury shall cause plates and dies to be engraved." See Pub. L. No. 103-325, § 602(g)(3), 108 Stat. 2160, 2293 (1994). The Secretary has delegated the development of currency design and the production of currency to the Bureau of Engraving and
3 The use of the word "tenor" in this provision is apparently an instance of the nowobsolete definition "quality, character, or condition." See, e.g.,The Random House College Dictionary 1354 (rev. ed. 1980).
5

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Printing ("Bureau" or "BEP"), a component of the Department of the Treasury. See Declaration of Thomas A. Ferguson ¶ 3 (Exhibit 4 hereto) [hereinafter Ferguson Decl.].4
The BEP does not circulate the currency that it produces. Rather, it sells currency to the Federal Reserve System ("Fed"), a federal government entity composed of a Board of Governors and twelve regional Federal Reserve Banks. Id. ¶¶ 10, 11. Banks and other private depository institutions are members of a Federal Reserve Bank. Id. ¶ 10. The Federal Reserve Board orders new currency from the Bureau based on the needs of the Federal Reserve Banks, which correspond to the circulation needs of depository institutions. Id. ¶ 11. The Federal Reserve Banks place currency in circulation by selling currency to depository institutions. Id. ¶¶ 11, 13. The Federal Reserve Banks are also responsible for detecting overly-worn and counterfeit bills and removing them from circulation. Id. ¶ 14; see 31 U.S.C. § 5141 et seq.
The BEP's activities are financed by a revolving fund which is replenished by the sale of the Bureau's products. See Ferguson Decl. ¶ 7. Thus, the Bureau recovers its costs of designing and producing currency by selling currency to the Federal Reserve System. Id. The Fed, in turn, recovers its costs of purchasing and handling currency by selling currency to private depository institutions. Banks and other depository institutions then recover their costs through banking fees, lending rates, and charges for other banking services. Id. ¶ 56.
4 The cited declaration was submitted with defendant's earlier motion for summary judgment. The more recent Supplemental Declaration of Thomas A. Ferguson in Support of Defendant's Renewed Motion to Dismiss or for Summary Judgment, which is Exhibit 6 hereto, affirms that the facts stated in the first declaration are still correct.
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ARGUMENT Section 504(a) of the Rehabilitation Act provides in part:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. . . . 29 U.S.C. § 794(a). To establish a prima facie case, under Section 504, for discrimination in a program or activity conducted by an executive agency, the plaintiff must show that he seeks participation or benefits in such a program or activity, that he has a disability under the Act, that he is "otherwise qualified" for the participation or benefits that he seeks, and that he has been denied those benefits, or subjected to discrimination, "solely by reason" of the disability.5 See Allison v. Howard Univ., 209 F. Supp. 2d 55, 62-63 (D.D.C. 2002); Stewart v. Rondeau, 940 F. Supp. 7, 8 (D.D.C. 1996). Additionally, where plaintiff seeks accommodation for a disability, the accommodation must be "reasonable." See Alexander v. Choate, 469 U.S. 287, 301 (1985). In this case, the existing United States currency does not constitute "discrimination" against the blind and visually impaired, in that such persons already have "meaningful access" to the use of the currency. See Alexander, id. Plaintiffs' own testimony establishes that the blind and visually impaired handle currency transactions with very little difficulty, that they use currency with some frequency, and that they are almost never defrauded in currency transactions.
5 As stated in our earlier motion to dismiss, defendant does not concede that the production of currency is a "program or activity" to which the Rehabilitation Act applies, but will assume this element solely for purposes of this motion.
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Moreover, hand-held electronic devices are available to identify currency, which are considerably less expensive than other assistive devices owned and used by the blind.
Further, requiring the Secretary of the Treasury to change the currency as demanded in plaintiffs' complaint would impose "undue financial and administrative burdens," such that the changes sought would not constitute "reasonable accommodation" under the Rehabilitation Act. See Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979); Alexander, 469 U.S. at 301. Making those changes would, for example, require an initial expenditure exceeding, by 26 to 101 million dollars, the Bureau of Engraving and Printing's entire outlay for producing currency during Fiscal Year 2001. Producing the changed currency would also increase the Bureau's annual production costs by at least 65% to 79%. These costs would, moreover, substantially exceed the expenses of all of the changes actually made to the currency during the last ten years, to improve counterfeit deterrence. The impact on the business sector and the public in general would likely be even greater.
In any event, even if the merits did not so clearly compel judgment for defendant, this action would have to be dismissed for plaintiffs' failure to cite any applicable waiver of sovereign immunity. Another provision in the Rehabilitation Act provides that the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance." 29 U.S.C. § 794a(a)(2) (emphasis added). Nothing in the Act, however, waives sovereign immunity to sue the federal government under the other prong of Section 504 — that is, in relation to a "program or activity conducted by [an] Executive agency." 29 U.S.C. § 794(a). Given that plaintiffs rest jurisdiction in this case solely on the Rehabilitation Act and
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the federal question statute, 28 U.S.C. § 1331 — which is widely recognized as not waiving sovereign immunity — plaintiffs have not alleged any viable basis for such a waiver in relation to their claims. See Complaint ¶ 9.
Finally, if this case were somehow not disposed of in its entirety on this motion, two of plaintiffs' specific prayers for relief should be dismissed or stricken, as explained below. I. Blind and Visually-Impaired Persons Have "Meaningful
Access" to the Existing Currency, Such that Plaintiffs Cannot Show "Discrimination" In his original motion to dismiss, defendant argued that the existing currency does not constitute "discrimination" against the visually impaired for purposes of the Rehabilitation Act, 29 U.S.C. § 794(a), in that the currency does not deny them "meaningful access" to participate in currency-based transactions. See Alexander, 469 U.S. at 301. The factual premises of this argument were plaintiffs' own allegations, in the complaint, that they can and do use the existing currency by folding their currency in advance, or by using electronic devices to distinguish among denominations. See Complaint ¶¶ 12-13, 33. Discovery in this case has added immeasurably to the factual foundations of this argument, showing beyond dispute that the blind and visually impaired have more than "meaningful access" to the currency. The blind and visually impaired handle currency transactions with very little difficulty; they use currency with considerable frequency (indeed, one of the plaintiffs, who is legally blind but has some eyesight, can often distinguish bills by looking at them); and they are very seldom defrauded in currency transactions. Factual development in this case also reveals the utility of hand-held electronic devices to identify currency, and establishes that blind and visually-impaired persons purchase
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and use a variety of more expensive assistive devices and software, for purposes other than handling currency.
The Rehabilitation Act prohibits "exclud[ing]" disabled persons from "participation" in a covered program, denying them "the benefits of" such a program, or "subject[ing]" them to "discrimination" in such a program. 29 U.S.C. § 794(a). Visually-impaired persons are obviously not "excluded" from participation in currency-based transactions or entirely "denied the benefits" of using currency: by their own allegations, they have means available to identify currency and, thus, to engage in currency-based transactions. See Complaint ¶¶ 12-13, 33. The issue, therefore, is whether the existing U.S. currency subjects the visually impaired to "discrimination" actionable under the Rehabilitation Act. Nothing about the existing currency constitutes intentional discrimination against the visually impaired: the government provides the same currency for all persons; everyone is free to use whatever means they choose to identify the various denominations (short of defacing the bills); and plaintiffs do not allege that the government purposefully seeks to disadvantage the visually impaired in its design of currency.
The Supreme Court established, in Alexander v. Choate, the extent to which the Rehabilitation Act prohibits unintentional — or "disparate impact" — discrimination. Alexander involved a state's decision to reduce, from twenty to fourteen, the number of inpatient hospital days that the state's Medicaid program would provide for each recipient in one year. Plaintiffs alleged that this decision constituted "discrimination" against the disabled in violation of the Rehabilitation Act, because the reduction had a statistically greater impact on disabled persons than on non-disabled persons. 469 U.S. at 289-90. In a unanimous opinion, the Court rejected plaintiffs' contention that the Act prohibits "all action disparately affecting the
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handicapped." Id. at 298. "Because the handicapped typically are not similarly situated to the nonhandicapped," the Court explained, such a rule would require a decisionmaker to evaluate the effect of "every proposed action" on the disabled, then to consider "alternatives for achieving the same objectives with less severe disadvantage to the handicapped." Id. This, the Court held, "could lead to a wholly unwieldy administrative and adjudicative burden," which the Act does not require. Id.
In balancing the "objectives" of the Rehabilitation Act and "the desire to keep § 504 within manageable bounds," id. at 299, the Court held that the Act requires only "meaningful access" to the benefits to which it applies, and that an unintentional denial of "meaningful access" would violate the Act. Id. at 301. Turning to the case at hand, the Court held that the reduction in hospital days did not deprive the disabled of meaningful access to Medicaid hospital benefits: "nothing in the record suggest[ed] that the handicapped [would] be unable to benefit meaningfully from the coverage they [would] receive under the 14-day rule," nor was there "any suggestion that the illnesses uniquely associated with the handicapped or occurring with greater frequency among them cannot be effectively treated, at least in part, with fewer than 14 days' coverage." Id. at 302 & n.22 (emphasis added).
The Court rejected, moreover, any suggestion that the state was required to "single out the handicapped for more than 14 days of coverage." Id. at 302 (emphasis in original). "[S]uch a suggestion," said the Court, would "rest on the notion that the benefit provided through state Medicaid programs is the amorphous objective of 'adequate health care.'" Id. at 303. That, however, was not the benefit; "Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs." Id. (emphasis
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added). Section 504, the Court concluded, "seeks to assure evenhanded treatment" of the disabled; it does not "guarantee . . . equal results." Id. at 304 (citations omitted); see Modderno v. King, 82 F.3d 1059, 1060 (D.C. Cir. 1996) (holding that Rehabilitation Act was not violated by $75,000 lifetime maximum for mental health benefits, but not other benefits, under federallysponsored health insurance plan).
In light of Alexander and the record in this case, the United States currency under challenge here does not deprive visually-impaired persons of "meaningful access" to participation in currency-based transactions. The testimony of the plaintiffs themselves establishes, first, that they can handle currency transactions, and that they use currency with some frequency. All three of plaintiffs' witnesses (that is, the two individual plaintiffs and the Rule 30(b)(6) designee of plaintiff American Council of the Blind) testified that they fold each denomination of their currency in a different way to distinguish among the denominations. See Brunson 32-33; Stephens 85-89; Sheehan 69-71. Plaintiff Dr. Otis Stephens demonstrated his folding methods during his deposition, and correctly identified a number of his bills based on how they were folded. See Stephens 86-88. Some blind persons also speak the value of each bill when handing currency to a cashier. See Brunson 33; Stephens 90-91. And some blind persons hold onto each bill until the cashier acknowledges the denomination. See Brunson 33; Stephens 91. In addition to using the folding techniques, certain blind (and visually-impaired) persons also carry each denomination in a different location on their person. See Brunson 33; Stephens 90; Sheehan 69-71.
Plaintiffs' witnesses testified, additionally, that they use currency with some frequency. Dr. Stephens purchases goods with currency approximately 70 times every two months; he uses
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currency for approximately one-half of the occasions on which he purchases goods or services in a face-to-face transaction. See Stephens 106-107 & Ex. 3. Similarly, Patrick Sheehan purchases goods or services with currency approximately 65 times every two months, Sheehan 93, 95-96 & Ex. 3; like Dr. Stephens, he uses currency for approximately one-half of the occasions on which he purchases goods or services in a face-to-face transaction. See Sheehan 95-97 & Ex. 3. Ms. Melanie Brunson, the ACB's designee under Rule (30)(6), engages in relatively fewer face-toface transactions, but she uses currency in an even greater proportion of her transactions: she purchases goods with currency approximately 10 times each month, but uses a credit card or debit card approximately once every six months each, and she never uses a check for face-to-face transactions. See Brunson 60-63 & errata sheet. When asked why they did not more often use means of exchange other than currency, Dr. Stephens and Mr. Sheehan explained that it was a matter of convenience: Dr. Stephens "find[s] that currency transactions are easier than going through the credit card routine [and] that the use of currency for small purchases saves time"; Mr. Sheehan "think[s] that smaller purchases [are] more convenient with cash." See Stephens 108; Sheehan 97.
Furthermore, plaintiffs' testimony indicates that some persons with low vision can identify bills by sight. Patrick Sheehan is legally blind but has some vision in one eye, see Sheehan 59 & Ex. 3; he was included as a plaintiff in this case to "represent" the "point of view" of those with low vision. See Sheehan 131-32. He testified that he can "sometimes" tell the denomination of a bill, depending on the ambient lighting and the age of the bill. See Sheehan 40-41, 48-49, 55. In fact, Mr. Sheehan correctly identified four bills — in the four most common denominations — that were shown to him during his deposition. See Sheehan 49-54. He uses
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the large numbers on the backs of the $5, $10, and $20 bills to identify them. See Sheehan 41-42, 53. Mr. Sheehan serves as treasurer of his chapter of an ACB affiliate, and, in that position, he handles currency and prepares deposits on his own. See Sheehan 37-41 & Ex. 3.
The testimony of plaintiffs' witnesses also indicates that they are very seldom defrauded in currency transactions. Dr. Otis Stephens, who has been blind his entire adult life, has been defrauded one time in a currency transaction. See Stephens 6-7, 104-105 & Ex. 3. Melanie Brunson, who has been blind her entire life, initially testified that she had been defrauded twice in currency transactions, but her further testimony indicated that both of those incidents were unsuccessful attempts to defraud her. See Brunson 6, 54-57, 208-13. Patrick Sheehan testified that taxi drivers have defrauded him three times in the last 20 years, and that cashiers have defrauded him "maybe about three or four times" during that period. See Sheehan 140 & Ex. 3. Indeed, cashiers seem to be quite solicitous to protect the blind and visually impaired against accidentally paying too much money: "less than half a dozen times," for example, cashiers have told Dr. Stephens that he was offering a larger denomination than he thought he was. See Stephens 112-115.
As if the above were not enough to establish "meaningful access" to the use of currency, a portable assistive device is available to identify currency for the blind and visually impaired. This device, called the "Note Teller 2," sells for about $270. See Declaration of Julia Wilson ¶ 8 (Exhibit 5 hereto). It measures approximately 6 inches long, 3 inches wide, and 1 inch high at its highest point, and weighs approximately 6.70 ounces. Id. ¶ 2. About two seconds after a bill is inserted, it announces the denomination in a recorded voice. Id. ¶ 4. Testing of the Note Teller 2 indicates that it correctly identifies all modern versions of the $1, $5, $10, and $20 bills, most of
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them in any of the four possible orientations upon insertion. Id. ¶¶ 3, 6 & Table A, Table B. All bills were read correctly in at least two of the four possible orientations. Id. Very significantly, there were no incorrect readings in testing; when the device cannot read a bill correctly, it announces "cannot read." Id.6
Moreover, any assertion that the $270 cost of the Note Teller 2 is unreasonable for an assistive device would be thoroughly rebutted by plaintiffs' own testimony regarding the many (and considerably more expensive) assistive devices that blind and visually-impaired persons already use. All three of plaintiffs' witnesses testified that they own a variety of special assistive devices: C All three of the witnesses own a "notetaker," which has a Braille keyboard and a storage
medium to store what has been typed. A notetaker costs between $3200 and $5500, with "refreshable Braille" output that can be read on the device itself. See Brunson 7-9, 49-51; Stephens 102-104; Sheehan 85-87. Other notetakers, with voice-only output, cost approximately $1800. See Sheehan 84-85, 87. C Ms. Brunson and Dr. Stephens each owns a Braille printer, which embosses Braille characters on pieces of paper. These cost between $2000 and $3000. See Brunson 45-46; Stephens 100-101. C To convert a typed or printed page to Braille that can be printed on a Braille printer, the page can be scanned and run through "Braille translator" software, which costs
6 Additionally, the Bureau of Engraving and Printing is providing financial support toward the development of a smaller, cheaper currency reader. See Supplemental Declaration of Thomas A. Ferguson in Support of Defendant's Renewed Motion to Dismiss or for Summary Judgment ¶ 15 (Exhibit 6 hereto) [hereinafter Suppl. Ferguson Decl.]. This reader is to be pocket-sized and capable of mass production at a target retail price of no more than $35.00. Id.
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approximately $500 or $1000. Ms. Brunson owns this software. See Brunson 45-46. Dr. Stephens apparently owns it as well. See Stephens 100. C Ms. Brunson and Dr. Stephens each owns a "Braille writer," which is like a typewriter in that the user types on a keyboard, and the device makes Braille impressions directly on a piece of paper. A Braille writer costs between $250 and $800. See Brunson 48-49; Stephens, 101-102. C Dr. Stephens has software that can read a document aloud after the document has been scanned. See Stephens 95-96. At least two different versions of such software exist (produced by different companies) — one program called "Arkenstone," which sells for approximately $1500 (which Dr. Stephens has), and another called "Kurzweil," which sells for approximately $1200. See Stephens 97-98; Sheehan 81-82. Mr. Sheehan uses the Kurzweil software at work; his wife, who also has low vision, has the Kurzweil software at home. See Sheehan 81-83. (The Kurzweil software can identify the denomination of currency after scanning a bill. See Sheehan 81-82.) C Mr. Sheehan owns a closed-circuit television set to magnify material for reading; he testified that one could now buy such a unit for approximately $2100. See Sheehan 87-90 & Ex. 3. All of the above-described evidence establishes beyond doubt that the blind and visually impaired have "meaningful access" to the use of the United States' existing currency. Their folding methods and other techniques allow them to use currency with ease, and this is reflected in the frequency with which they use currency and their preference for currency over other means of exchange. It is also reflected in the rarity of fraudulent activity on the part of cashiers and
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other persons with whom the blind and visually impaired handle currency transactions. The existence of an assistive device for identifying currency — and the fact that plaintiffs own and use other, much more expensive assistive devices — further establishes that no changes in the currency are needed to provide "meaningful access" to the currency for blind and visuallyimpaired persons.
Thus, the plaintiffs here are seeking, not simply "meaningful access," but optimal access or specially-designed access to the use of currency. The Supreme Court in Alexander, however, rejected a contention that the Rehabilitation Act requires government benefits "precisely tailored" to the needs of disabled persons. 469 U.S. at 303. Like the Medicaid program at issue in Alexander, the existing U.S. currency provides a benefit to all persons, both sighted and visuallyimpaired. Like the plaintiffs in Alexander, the plaintiffs here contend that the benefit is not sufficient to meet the needs of the visually impaired — that the benefit must be expanded. But the Rehabilitation Act does not require such an expansion, and the evidence in this case shows that the plaintiffs do not need it.
In any event, if the existing currency scheme were held to deprive the blind and visually impaired of "meaningful access" to currency-based transactions, the rationale for the ruling would necessarily extend to a host of other materials and services provided by the federal government. For example, it could be argued that every type of printed material produced by the government — every handbook, manual, and application form — not currently provided in Braille or in some other accessible form deprives the blind and visually impaired of "meaningful access" to the information contained therein. And, to be consistent, the courts would have to hold that the blind and visually impaired are deprived of meaningful access to the use of food
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stamps, which, like currency, are provided in different denominations. See, e.g., 7 C.F.R. § 274.10(j). The Rehabilitation Act simply was not intended to mandate such fundamental, farreaching changes in the provision of universal government services. II. Changing the Currency as Requested by Plaintiffs Would
Impose Undue Burdens and, Thus, Would Not Constitute Reasonable Accommodation Even if plaintiffs did not already have meaningful access to the existing U.S. currency, their Rehabilitation Act claim should be dismissed because the changes that they seek in the currency are beyond what the Act would require. Under the Act, an agency may be required to make accommodations for a disability, but need only make such accommodations as are "reasonable." See Alexander, 469 U.S. at 301. Moreover, requested accommodations are not "reasonable" if they would entail either "undue financial and administrative burdens" or a "fundamental alteration in the nature of a program." Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979); see School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987); Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993). In this case, the accommodations sought by the plaintiffs — extensive changes in United States currency — would impose "undue financial and administrative burdens," and would not, therefore, be reasonable. The changes sought by plaintiffs would require the expenditure of millions of dollars and thousands of man-hours of labor to redesign the currency, replace existing equipment, and produce the changed currency (above the amounts now expended to produce the existing currency). Additional costs would be incurred by the Federal Reserve System to adapt to the new currency. Moreover, expenditures by the private sector to accommodate these changes would rival — and may even exceed — the expenditures incurred by the government in making the changes.
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The existing precedent on "reasonable accommodation" applies here only in miniature, for the Rehabilitation Act has never been used in attempting to compel such a vast and expensive undertaking. The Supreme Court long ago established the extent of a defendant's obligation to undertake accommodation in Southeastern Community College v. Davis. In Davis, a licensed practical nurse was denied admission to the school's nursing program because of a severe hearing disability, and the nurse alleged that that denial violated the Rehabilitation Act. The Supreme Court disagreed, rejecting plaintiff's contention that the school should have accommodated her disability by giving her "individual supervision by faculty members whenever she attend[ed] patients directly" and by dispensing with certain course requirements. 442 U.S. at 407-08. Section 504 of the Rehabilitation Act requires "evenhanded treatment" of handicapped persons, but does not require "affirmative efforts to overcome the disabilities caused by handicaps." Id. at 410. Thus, the Court held, a refusal to make "major adjustments" or to undertake "undue financial and administrative burdens" does not constitute "discrimination" under the Act. Id. at 412-13. The Court rejected the accommodations sought by the plaintiff, holding that "[s]uch a fundamental alteration in the nature of a program" is not required. Id. at 410.
The Supreme Court also addressed the reasonableness of requested accommodations in Alexander v. Choate. Alexander involved a state's decision to reduce, from twenty to fourteen, the number of inpatient hospital days that the state's Medicaid program would provide for each recipient in one year. Plaintiffs asserted, among other things, that the imposition of any durational limitation on inpatient coverage violated the Rehabilitation Act. 469 U.S. at 306. "The thrust of this challenge," the Court noted, was that "(1) the effect of such limitations falls most heavily on the handicapped and . . . (2) this harm could be avoided by the choice of other
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Medicaid plans that would meet the State's budgetary constraints without disproportionately disadvantaging the handicapped." Id.
The Court rejected this challenge, primarily because of the expense of implementing the decisionmaking implicit in plaintiffs' argument. Specifically, the Court noted that to avoid imposing any durational limitation having an unduly disproportionate impact on the handicapped, a state would need to analyze the effect of every "across-the-board action affecting Medicaid recipients." Id. at 308. Such an analysis "would have to be further broken down by class of handicap," and "the State would then have to balance the harms and benefits to various groups to determine, on balance, the extent to which the action disparately impacts the handicapped." Id. "It should be obvious," said the Court, that the "administrative costs" of carrying out such an accommodation would be "well beyond" what the Rehabilitation Act requires. Id.
The accommodations requested — and held to be unreasonable — in Davis and Alexander are minuscule compared to the sweeping, costly changes in the United States currency sought by the plaintiffs here. As plead in their complaint, the plaintiffs seek —
a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral which is at
least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination.
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See Complaint at 16-17 (emphasis added).7 Implementing these changes — particularly the production of notes in various sizes — would impose substantial financial and administrative burdens on the Bureau of Engraving and Printing in at least the following areas: research and consultation; planning the redesign of the currency; plate engraving and manufacture; purchasing and installing additional equipment; producing the new currency; public education; and replacing worn currency. See Ferguson Decl. ¶ 21.
Any redesign of the currency requires thorough research, consultation, and planning. Consultation must occur with other federal entities, such as the Secret Service and the Federal Reserve Board, and with interested members of the public. Id. ¶ 23. In relation to the redesign sought by the plaintiffs, considerable research and planning would be required to determine the appropriate sizes of the bills and to create a new, different design for each denomination. Id. ¶¶ 24-25. Implementing the Braille symbols and raised numerals requested by the plaintiffs would substantially complicate and lengthen this process. Id. ¶ 25. These initial tasks would take approximately three to six years and cost between one and two million dollars. Id. ¶ 26.
After designing the new currency, the Bureau would have to engrave new templates and manufacture new printing plates. A template would have to be engraved, by hand, for each denomination. Id. ¶ 27. Approximately half of the BEP's 455 plates would have to be replaced (given that the one-dollar bill, which, by statute, cannot be changed, accounts for about half of the Bureau's production). Id. ¶¶ 5, 28. This task would take approximately five to seven years —
7 Plaintiffs seem to have abandoned their request for Braille symbols on the currency; indeed, plaintiffs' attorney indicated during one of the depositions that he was unaware of any mention of Braille markings in the complaint. See Brunson 276. In any event, plaintiffs' own testimony indicates that imprinting Braille on currency would not be a practical means of making currency more accessible to the blind and visually impaired. See infra text at 24-25.
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after completion of the research and design phase — and cost between 3 and 4 million dollars. Id. ¶ 29.
The most costly impacts of implementing plaintiffs' redesign of the currency would occur in purchasing, installing, and operating additional equipment. The Bureau uses separate machinery to perform intaglio printing on the currency, to perform offset printing of new security features, to inspect the printed bills, and to add identifying marks (serial numbers, etc.) and package the completed bills. Id. ¶¶ 30-39. The Bureau's existing equipment is designed to accommodate the size of the existing printing plates, on which thirty-two bills are printed. Producing larger bills would entail printing fewer bills on each plate, thus requiring additional printing runs to maintain current production levels.8 Id. ¶¶ 31, 33. To perform those additional printing runs, the Bureau would have to acquire at least four additional intaglio presses and two additional offset presses. Id. ¶¶ 32, 34. The cost of these machines would be between 46 and 61 million dollars. Id.
As part of the production process, the Bureau uses automated equipment that inspects the bills in order to ensure accurate and uniform output. Changing the size of the currency, and producing different denominations in different sizes, would require not only changing the physical dimensions of the currency-handling portions of those machines, but also changing the software that governs the inspection process. Id. ¶ 35. Additionally, varying the sizes of the denominations would eliminate the ability to use the same inspection machines for all
8 Printing fewer bills on each plate would be much cheaper than varying the size of the printing plates by denomination, because the latter alternative would entail replacing half of the Bureau's existing presses to accommodate different-size plates, rather than only acquiring a few additional presses to perform additional printing runs. See Ferguson Decl. ¶ 31.
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denominations; this loss of flexibility would require adding inspection capacity in order to maintain current production levels. Id. ¶ 36. Based on all of these considerations, implementing plaintiffs' currency redesign would require the Bureau to design, purchase, and install at least two new pieces of inspection equipment, at a total cost of between 16 and 21 million dollars. Id. ¶ 37.
After inspection, the printed sheets of currency run through another machine to print the serial numbers and other identifying marks, cut the sheets into individual bills, and package the completed currency. Id. ¶ 38. Producing bills of different sizes would require designing and purchasing new equipment (and new software) to perform these tasks. Id. ¶ 39. As with the inspection step, too, eliminating the flexibility of using every machine for every denomination would require increased capacity to maintain current production levels. Id. Thus, the Bureau would have to design, purchase, and install twenty new pieces of equipment for these tasks, at a total cost of between 100 and 130 million dollars. Id.
Acquiring all of this new equipment would, of course, involve preparing equipment specifications and requests for proposals, evaluating contract offers, and otherwise working with contractors. Id. ¶¶ 40-44. These procurement tasks would consume approximately 7,000 manhours, over a period of several years, to acquire all of the above-described equipment. Id. ¶ 44. The Bureau would have to expend between 9 and 12 million dollars, in addition to the abovestated direct acquisition costs, to award and administer the contracts and prepare its work space for replacement and additional equipment. Id.
In addition to the costs of acquiring new equipment, implementing the redesign sought by the plaintiffs would increase the yearly cost of producing United States currency. More distinc-
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tive currency-grade paper and more ink would be needed. Id. ¶ 45. Other production expenses would also increase, such as maintenance costs for the new equipment described above and additional man-hours for BEP's existing employees involved in production. Id. These increased production costs — the paper, the ink, and the other expenses — would total between 36 and 45 million dollars per year.9 Id. Additionally, new employees would be needed to operate the new equipment — a total of approximately 246 full-time equivalents, or another 15 to 20 million dollars per year. Id. ¶ 46.
Another very significant increase in yearly expenses would be the increased cost of replacing worn currency. Approximately 95% of the BEP's yearly production is attributable to the need to replace worn currency removed from circulation by the Federal Reserve System. Id. ¶ 15. Including the embossed numeral and the Braille symbol requested by the plaintiffs would cause the currency to wear out much faster, because the ink of the embossed numeral would rub off during circulation and the raised dots of the Braille symbol would wear away faster than the surrounding paper, rendering those features useless for blind persons. Id. ¶ 49; Supplemental Declaration of Thomas A. Ferguson in Support of Defendant's Renewed Motion to Dismiss or for Summary Judgment ¶ 9 (Exhibit 6 hereto) [hereinafter Suppl. Ferguson Decl.]. Braille, for
9 These figures do not include certain additional costs that the Bureau has not estimated, due to technical uncertainties and challenges, such as the costs of equipment for adding a Braille symbol, and the likely increased costs of packaging, handling, and storage due to variations in the thickness of each bill because of the addition of those features. See Ferguson Decl. ¶ 47. Although the Bureau has, in response to an interrogatory by the plaintiffs, provided an estimate of the costs to emboss a denomination numeral on each bill, see Suppl. Ferguson Decl. ¶ 9, those costs are omitted, for the sake of simplicity, from the expenses described in this memorandum. The Bureau's estimate of the costs of embossing a denomination numeral cannot simply be added to the estimated costs, provided earlier, for making the changes requested by the plaintiffs, because some of the former would be subsumed within the latter. See id. ¶ 8.
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example, must be written on "heavy," "very thick" paper to "hold the dots" and to avoid being "rubbed out easily." See Brunson 63; Stephens 24-25, 118. If Braille were imprinted on "thin paper of the type common to printed books," the Braille "would not withstand the pressure of use," and "very quickly the dots . . . would be rubbed out." See Stephens 118. Even with the heavy paper on which Braille is normally printed, the dots sometimes become so worn as to be difficult or impossible to read. See Stephens 120. Thus, plaintiff Otis Stephens testified, "I'm not at all sure that trying to superimpose a braille symbol on the currency would actually work because of this thinness of the paper problem." See Stephens 144. Similarly, during internal discussions regarding the filing of this lawsuit and the drafting of the complaint, the thenpresident of ACB observed that "Braille markings and raised print [on currency would] wear down over time and become relatively indistinguishable from the texture of the note paper." See Brunson 274-280 & Ex. 16 (emphasis added).
Until the means of implementing an embossed numeral and/or a Braille symbol were determined and tested, it would be difficult to know precisely how much their inclusion would decrease the useful life of each bill. The Bureau believes, however, that including such features would reduce the life of each bill by at least fifty percent. See Ferguson Decl. ¶ 50. Assuming an even more conservative estimate of a forty percent reduction in the life of each bill — which is, perhaps, much too conservative in light of plaintiffs' own testimony — the increased production volume caused by including an embossed numeral and a Braille symbol on each bill (other than the $1 bill) would increase the overall costs of producing the country's currency by between 92 and 109 million dollars per year. Id. ¶ 51.
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Lastly, to introduce drastic changes in the currency such as those sought by the plaintiffs, the Bureau would have to undertake an extensive public-education campaign. Given that United States currency is widely used throughout the world, a worldwide public education campaign would be needed to familiarize users with the new currency and to advance public acceptance of the currency. Id. ¶ 48. An additional effort would be needed to prepare blind and visuallyimpaired persons to recognize and use the redesigned currency. For the 1996 redesign, which involved enlargement of the portrait and the addition of a watermark and a security thread, the Bureau expended approximately 50 million dollars on public education. Id. For the much more extensive changes requested by the plaintiffs here, the Bureau would have to spend between 70 and 90 million dollars on public education. Id.
In summary, implementing the currency redesign sought by the plaintiffs would require an extensive effort of several years' duration, affecting every BEP employee to one degree or another. Id. ¶¶ 26, 29, 43, 44, 53. Initial expenses attributable to the redesign (research, consultation, and redesign; engraving and manufacturing new printing plates; purchasing and installing new equipment; and public education) would amount to between 245 and 320 million dollars. Id. ¶ 53. This amount would exceed, by 26 to 101 million dollars, the Bureau's entire expenditure in producing currency during Fiscal Year 2001. Id. ¶ 6. Increased annual production costs due to the redesign would total between 143 and 174 million dollars — not counting the increased cost of producing each denomination in a different color and including a Braille symbol on each bill, nor the cost of increasing the Bureau's production capacity to meet the increased demand due to the shorter life of the redesigned notes. Id. ¶¶ 52, 55. Thus, plaintiffs'
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redesign of the currency would increase the Bureau's annual cost of producing currency by at least 65% to 79%. Id. ¶ 52.10
The costs of implementing the changes sought here would also greatly exceed the costs of recent changes in the currency to improve counterfeit deterrence.11 The Bureau of Engraving and
Printing has engaged, or is engaging, in a "1996 redesign" and a "2004 redesign" of the currency.
See Suppl. Ferguson Decl. ¶ 3. The 1996 redesign required an initial expenditure of approx-
imately $33.8 million for redesign, plate engraving, new equipment, etc., and it increased the
Bureau's annual operating costs by about $31.1 million. Id. ¶ 5. The 2004 redesign has required
an initial outlay of approximately $113 million, and has so far increased the Bureau's annual
operating costs by about $25.8 million. Id. ¶ 7. Obviously, therefore, making the changes sought
in plaintiffs' complaint would be substantially more burdensome than all of the changes made in
the currency during the last ten years — whose primary purpose has been to obey the Bureau's
statutory mandate to produce currency "in the best manner to guard against counterfeits and fraudulent alterations." See 12 U.S.C. § 418.12
10 Indeed, the Bureau's recent experience with the 2004 redesign of the currency, described in the text immediately below, indicates that certain of these estimates, provided for purposes of this case in 2002, were overly conservative and considerably underestimated. See Suppl. Ferguson Decl. ¶ 2.
11 These figures are included in accordance with the Court's finding, in its order denying defendant's earlier summary judgment motion, that the record lacked evidence regarding "expenditures that have been made to modify currency design and production for other purposes." See Memorandum Order, Mar. 31, 2003 (docket #14).
12 The costs of the redesign sought by the plaintiffs, summarized in the immediately preceding paragraph, are given in 2002 dollars, whereas the costs of the 1996 and 2004 redesigns are given as of the year in which each expenditure was incurred (thus, for example, expenditures incurred for the 1996 redesign in 1999 are given in 1999 dollars, and expenditures incurred for
(continued...) 27

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Given this monumental impact on its operations, the currency redesign sought by the plaintiffs would clearly impose "undue financial and administrative burdens" on the Bureau of Engraving and Printing, and a refusal to undertake this task is well within the Secretary of the Treasury's statutory discretion. Davis, 442 U.S. at 412; 12 U.S.C. § 418. The burdens described above far exceed the course adjustments held unreasonable in Davis and the analysis of Medicaid program changes held unduly burdensome in Alexander. 442 U.S. at 407-08, 412; 469 U.S. at 308.
Furthermore, plaintiffs' proposed redesign of the currency would have very substantial impacts on other persons and entities — specifically, the Federal Reserve System and the entire American public. The Fed, which issues and circulates the currency, is responsible for identifying worn and counterfeit bills and removing them from circulation. See Ferguson Decl. ¶ 54. Because these tasks are performed automatically by machinery, the issuance of redesigned bills in different sizes would require the Fed, at the very least, to adjust its equipment; at worst, the Fed would have to replace its equipment, if the largest redesigned bill exceeded the size parameters of its existing equipment. Id. The Bureau's costs of implementing plaintiffs' redesign would also fall upon the Fed, which would be responsible for reimbursing those costs. See 31 U.S.C. § 5143. Further, the Fed's ongoing costs of acquiring new currency from the Bureau would increase because of the reduction in the useful life of the redesigned bills, given the
12(...continued) the 2004 redesign in 2005 are given in 2005 dollars). See Suppl. Ferguson Decl. ¶¶ 5, 7. Given that some costs of the 1996 and 2004 redesigns were incurred before 2002 and some were incurred after 2002, see id., inflation should have no significant overall effect on this comparison.
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inclusion of the raised numeral and Braille symbol requested by the plaintiffs. See Ferguson Decl. ¶¶ 13, 49-51, 55.
The impact on the American public might well dwarf the impact on the BEP and the Federal Reserve System. Plaintiffs' proposed redesign would affect American individuals and businesses in countless ways. For example, automated teller machines and vending machines would have to be replaced or modified to accommodate bills of different sizes. Id. ¶ 57. Indeed, during an internal discussion regarding the filing of this lawsuit and the drafting of the complaint, a member of ACB's Advocacy Services Committee — which approved the filing of the complaint and reviewed its text before filing — opined that making each denomination a different size "really does pose an undue burden on business." See Brunson 91, 104-05, 228-29, 234-37 & Ex. 11. The life of every member of the public would be affected by plaintiffs' changes in the currency, such as in the need to adjust to the new currency and even to purchase new wallets. And, as noted already, all of the costs of the redesign, from the Bureau's initial and increased production costs to the Fed's increased costs and the costs of replacing or modifying business equipment, would ultimately be borne by the public, in higher banking fees, higher lending rates, and higher retail prices. See Ferguson Decl. ¶¶ 22, 56. III. Plaintiffs Fail to Invoke any Waiver of Sovereign Immunity
Applicable to Their Claims Aside from defendant's unassailable position on the merits, this action should be dismissed for plaintiffs' failure to invoke any applicable statutory waiver of sovereign immunity. The United States as sovereign is immune from suit unless that immunity has been waived. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Such a waiver must be "unequivocally
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expressed in statutory text," and "will be strictly construed, in terms of its scope, in favor of the sovereign." Lane v. Peña, 518 U.S. 187, 192 (1996); see Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). The plaintiff bears the burden of establishing that an applicable waiver of sovereign immunity has occurred, and must plead the basis for such a waiver in his complaint. See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) ("The party who sues the United States bears the burden of pointing to . . . an unequivocal waiver of immunity."); Uberoi v. EEOC, 180 F. Supp. 2d 42, 45 (D.D.C. 2001) ("[A]ny party bringing an action against the United States has the burden of alleging that the government has waived its immunity with regard to the claim at issue."). If sovereign immunity has not been waived, the court lacks subject matter jurisdiction. See FDIC v. Meyer, 510 U.S. 471, 475 (1994).
Plaintiffs in this case invoke only two statutes as bases for the Court's jurisdiction in this action: 28 U.S.C. § 1331 — the federal question statute — and "Section 504 of the Rehabilitation Act, 29 U.S.C. § 794." See Complaint ¶ 9. It is well-settled that the federal question statute does not waive sovereign immunity. See, e.g., Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996). Nor, as shown below, does the Rehabilitation Act waive sovereign immunity for actions against federal entities under section 504.
As initially enacted in 1973, Section 504 only prohibited discrimination in programs or activities "receiving Federal financial assistance." 29 U.S.C. § 794(a). In 1978, the statute was amended to prohibit discrimination, additionally, in federal programs or activities; the statute now reads:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving
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Federal financial assistance or under any program or activity conducted by any Executive agency . . . . Id. (emphasis added). When it inserted the language regarding federal programs and activities, Congress also added a provision stating that the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance." 29 U.S.C. § 794a(a)(2) (emphasis added). Neither in 1978 nor at any time since then, however, has the Rehabilitation Act stated what remedies, if any, are available to persons seeking relief under Section 504 in relation to "any program or activity conducted by [an] Executive agency." Given the lack of any provision regarding remedies that can apply to this case, the Rehabilitation Act does not waive sovereign immunity for plaintiffs' claims under Section 504. In Lane v. Peña, the enrollment of a cadet at the Merchant Marine Academy had been terminated because his diabetes made him ineligible for a commission. 518 U.S. 187 (1996). Alleging that his termination violated the Rehabilitation Act, the cadet sought compensatory damages, along with other relief. Plaintiff asserted that 29 U.S.C. § 794a(a)(2) — quoted immediately above — waived sovereign immunity for damages, but the Supreme Court rejected that contention. A waiver of sovereign immunity, the Court held, "must extend unambiguously" to the plaintiff's claim, and the Rehabilitation Act's provision of remedies "for violations of § 504(a) . . . 'by any recipient of Federal assistance or Federal provider of such assistance' . . . makes no mention whatsoever of 'program[s] or activit[ies] conducted by any Executive agency.'" Id. at 192. The Court also rejected a contention that the Department of Transportation was a "Federal provider" within the meaning of section 794a(a)(2):
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The Department of Transportation, whatever its other activities, is not a "Federal provider" of financial assistance with respect to the Merchant Marine Academy . . . . Lane argues that [the statute's] reference to "Federal provider[s]" is not limited . . . to the funding activities of those providers, but instead reaches "any act" of an agency that serves as a "Federal provider" in any context. . . . In light of our established practice of construing waivers of sovereign immunity narrowly in favor of the sovereign, however, we decline Lane's invitation to read the statutory language so broadly. Id. at 194-95 (emphasis in original).13
Moreover, the First Circuit has squarely held that Section 504 does not itself allow a
plaintiff to sue the federal government in relation to a federal program or activity. In Cousins v.
Secretary of U.S. Dep't of Transp., the plaintiff challenged, under Section 504, the Department of
Transportation's hearing standards for commercial truck drivers. 880 F.2d 603 (1st Cir. 1989)
(en banc). The First Circuit first observed, in an en banc decision by then-Judge Breyer, that the
Rehabilitation Act expressly provides for suits against "any recipient of Federal assistance or
Federal provider of such assistance" (in Section 504) and for "actions against the federal
government as an employer" (in Section 501). Id. at 605 (emphasis added). The court held,
however, that "even though § 504's substantive standard applies . . . to 'any program or activity
conducted by any Executive agency' . . . the Act is silent about whether and how a person injured
by the government as regulator is to enforce the Act against the government." Id. (emphasis in
original). The court rejected plaintiff's contention that he could sue the government directly
under Section 504 pursuant to an implied private right of action theory. Id. at 605-07 ("Congress
13 The fact that defendants in Lane chose not to dispute the propriety of injunctive relief, see 518 U.S. at 190, does not foreclose asserting, in this case or in any other, that the Rehabilitation Act does not waive sovereign immunity for injunctive relief or any other type of relief. See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) ("Questions which 'merely lurk in the record' . . . are not resolved, and no resolution of them may be inferred.")
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has not said or suggested, anywhere in the Rehabilitation Act or its legislative history, that the Act was meant to give rise to a right of action against the government as a regulator . . . ."). Rather, the court concluded, only the Administrative Procedure Act — not the Rehabilitation Act itself — provides such a right of action. Id. 605-09.14
In short, neither the Rehabilitation Act nor the federal question statute waives sovereign immunity for plaintiffs' claims in this case, and the complaint does not refer to any other applicable statutory basis for such a waiver. IV. Two of Plaintiffs' Prayers for Relief Must Be Dismissed or Stricken
If this entire case were not dismissed or disposed of on summary judgment, two of plaintiffs' prayers for relief would have to be dismissed or stricken. See generally Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979) (upholding dismissal of certain prayers for relief but not others); Fed. R. Civ. P. 12(f) (motion to strike). First, their request for an order requiring the inclusion of certain specific features in a redesign of the currency must be dismissed because the specifics of any redesign required by the Rehabilitation Act would be within the sole discretion of the Secretary of the Treasury. Second, plaintiffs' request for an order requiring a redesign of the one-dollar bill should be dismissed because Congress has expressly and specifically prohibited redesign of the one-dollar bill. These arguments, which defendant made in his motion to dismiss in May 2003, are further bolstered now by testimony from plaintiffs' own witnesses,
14 Cousins is instructive in relation to whether the Rehabilitation Act constitutes a waiver of sovereign immunity in cases of this nature, notwithstanding that the court characterized the question before it as whether a private right of action exists rather than whether immunity has been waived. If there is no explicit waiver of sovereign immunity, then it would be futile to consider whether a private right action exists.
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and by Congress's repetition, during each of the intervening three fiscal years, of the prohibition against redesigning the one-dollar bill.
A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury
In their prayers for relief, plaintiffs seek not only "a permanent injunction prohibiting Defendant[] from continuing to manufacture banknotes in the present manner," but also —
a permanent injunction requiring that banknotes be designed to incorporate features which would make them accessible to people with visual disabilities, including but not limited to: (1) a low vision feature involving a single denomination numeral which is at
least one half the size of banknote height, and is printed with black ink on a white surface so as to increase contrast levels; (2) denomination numerals indicated by Braille symbols and raised printing on the banknote itself. (3) varying the length, height, and color of banknotes by denomination. See Complaint at 16-17 (emphasis added). Further emphasizing that they seek to compel specific changes, plaintiffs list certain recommendations allegedly made in a study by the National Academy of Sciences in 1995 — that is, varying banknote size and color by denomination, and including "a high contrast denomination numeral . . . at least 1/2 the size of banknote height" — then assert that "[t]his litigation seeks to compel Defendants to implement [those] recommendations." Id. ¶¶ 4, 6. In other words, plaintiffs ask the Court not only to enjoin continuing issuance of the currency as presently designed, but also to order the inclusion of certain specific features in the new currency. To some extent, therefore, plaintiffs are asking the Court to participate in the redesign of the currency.
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As plaintiffs acknowledge, however, the design of United States currency is, pursuant to the Federal Reserve Act, "solely within the discretion of the Secretary of the Treasury." Id. ¶ 22; 12 U.S.C. § 418 (Federal reserve notes "shall be in form and tenor as directed by the Secretary"). Indeed, the testimony of plaintiffs' own witnesses is to the same effect, even to the point of apparently eschewing the complaint's prayer for the inclusion of specific design features. The American Council of the Blind itself testified, through its Rule 30(b)(6) designee, that the complaint "doesn't necessarily [seek to] require that [all of the changes that it lists] be done," and that, "ultimately, it's the government's job to figure out exactly how the currency should be changed." See Brunson 181. Similarly, plaintiff Patrick Sheehan testified: "I think that ACB, to prescribe a solution [regarding the currency] would not be appropriate for the organization, because first of all, we're not experts in currency design particularly." See Sheehan 45-46. For all of these reasons, assuming the existing United States currency were somehow found to violate the Rehabilitation Act (and that this Court had jurisdiction), the Court could only enter declaratory judgment to that effect and enjoin the violation. The Court should not order the inclusion of any specific features in a redesign of the currency, and plaintiffs' prayer for relief to that effect must be dismissed.
B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill
Another of plaintiffs' prayers for relief seeks "a permanent injunction mandating that the $1 banknote be redesigned to incorporate new low vision features as mandated by Congress." See Complaint at 17. However, the current-year appropriations act for the Department of the Treasury provides that "[n]one of the funds appropriated [therein] or otherwise available to the
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Department of the Treasury or the Bureau of Engraving and Printing may be used to redesign the $1 Federal Reserve note." See Pub. L. No. 108-447, § 214, 118 Stat. 2809, 3241 (2004) ("for the fiscal year ending September 30, 2005"). Identical language has appeared in at least the five immediately preceding appropriations acts — and in the three such acts that have been passed since defendant filed his original motion to dismiss in this action. See Pub. L. No. 108-199, § 214, 118 Stat. 3, 320 (2004); Pub. L. No. 108-7, § 117, 117 Stat. 11, 439 (2003); Pub. L. No. 107-67, § 117, 115 Stat. 514, 525 (2001); Pub. L. No. 106-554, § 117, 114 Stat. 2763 (2000); Pub. L. No. 106-58, § 117, 113 Stat. 430, 441 (1999).15 Therefore, even if the existing currency were found to violate the Rehabilitation Act as a general matter, this specific, repeatedlyreenacted prohibition would easily override, in relation to the one-dollar bill, the more general anti-discrimination provisions of the Rehabilitation Act. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("[I]t is a commonplace of statutory construction that the specific governs the general."); Busic v. United States, 446 U.S. 398, 406 (1980) ("[A] more specific statute will be given precedence over a more general one, regardless of their temporal sequence.").
Plaintiffs not only fail to recognize that the prohibition in the current appropriations act forecloses redesigning the one-dollar bill; they also contend that a statement in a 1999 congressional committee report actually requires redesigning the one-dollar note. See Complaint ¶ 45. In that report, the conferees on an earlier appropriations bill wrote that they were "concerned about the cost associated with producing special anti-counterfeiting properties for the estimated
15 The same language also appears in the appropriation bill for Fiscal Year 2006, which is currently pending in Congress. See H.R. 3058, 109th Cong. § 213 (2005); see also S. Rep. No. 109-109 (2005).
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6 billion circulating $1 Federal Reserve Notes," but that they "believe[d] it [was] important to update the currency, such as making minor modifications to assist the visually impaired." H.R. Conf. Rep. No. 105-789, at 76 (1998), reprinted in 144 Cong. Rec. H9870, H9890 (daily ed. Oct. 7, 1998). Thus, the conferees purported to "direct the Department of the Treasury and the Bureau of Engraving and Printing . . . to only make minor design enhancements to the $1 note for the visually impaired and elderly population, provided it has no effect on the use of $1 Federal Reserve Notes with existing bill accepting machinery." Id.
This statement cannot, however, be read as requiring the redesign that plaintiffs seek. First, a statement in a committee report is not legislation; such a statement cannot, itself, establish a legal mandate. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ("indicia in committee reports and other legislative history as to how . . . funds should or are expected to be spent do not establish any legal requirements on the agency") (internal quotation marks omitted); American Hospital Ass'n v. NLRB, 499 U.S. 606, 616 (1991) (statements in committee reports do not have "the force of law"). Second, the bill to which this conference report relates (which did not, in any event, become law) contains no language regarding a redesign of the currency. See H.R. Conf. Rep. No. 105-789, at 1-62 (setting forth text of H.R. 4104), reprinted in 144 Cong. Rec. at H9871-H9886. Moreover, no legislative enactment during that fiscal year, or since, has required any redesign of currency for the visually impaired. See Pub. L. No. 105-277, 112 Stat. 2681 (1998) (FY 1999 appropriations act). Third, even if the bill to which the above-quoted conference report relates had required the Secretary of the Treasury to redesign the one-dollar bill for the visually impaired, it would have been overridden by the intervening appropriations acts,
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which have consistently forbidden any redesign regardless of its purpose. See Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (one appropriations act "superseded" by next act).
CONCLUSION Accordingly, defendant's renewed motion to dismiss or for summary judgment should be granted, and this action dismissed with prejudice. If this entire action were not dismissed or disposed of on summary judgment, the Court should (1) dismiss or strike the prayer for relief in which plaintiffs seek the inclusion of specific features in a redesign of the currency; and (2) dismiss or strike the prayer for relief in which plaintiffs seek a redesign of the one-dollar bill. Dated: August 31, 2005
Respectfully submitted, PETER D. KEISLER Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney STUART A. LICHT, N.Y. Bar 1237643 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7(h), the

defendant, by his undersigned counsel, submits the following statement of material facts as to

which there is no genuine issue, in relation to his renewed motion for summary judgment:

The Bureau of Engraving and Printing

1. The Secretary of the Treasury has delegated the design development and the production

of Federal Reserve Notes, our national currency, to the Bureau of Engraving and Printing

("Bureau" or "BEP"), which is solely responsible for these tasks. See Declaration of Thomas A.

Ferguson ¶ 3 [hereinafter Ferguson Decl.].

2. The Bureau produces approximately 36 million Federal Reserve Notes each day, five

days per week. Billions of notes are produced each year. Id. ¶ 5.

3. The BEP produced just over 7 billion Federal Reserve Notes in Fiscal Year 2001, 9

billion in 2000, and 11.4 billion in 1999. Of the 7,004,800,000 notes produced in 2001, the

Bureau produced 4,748,800,000 one-dollar bills, 915,200,000 five-dollar bills, 652,800,000

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ten-dollar bills, 486,400,000 twenty-dollar bills, and 201,600,000 one-hundred-dollar bills. Id. ¶ 5.
4. Over the years, about one-half of the Bureau's production consists of one-dollar bills. Id. ¶ 5.
5. During Fiscal Year 2001, the BEP expended approximately $219,240,000 in producing currency. Additionally, $29,000,000 was spent on capital investments, and $9 million on research and development. Id. ¶ 6.
6. Bureau operations are financed by a revolving fund established in 1950 pursuant to Public Law 81-656. The revolving fund is reimbursed for all direct and indirect costs of operations, through the sales of Bureau products. Id. ¶ 7.
7. In 1977, Congress expanded the Bureau's revolving fund to allow the Bureau to include, in the prices charged for its products, amounts sufficient to fund capital investments. Id. ¶ 7.
8. All of the Bureau's costs of designing and producing Federal Reserve Notes are covered by the revolving fund. Id. ¶ 7.
9. The design of U.S. currency occurs at a BEP facility in Washington, D.C., and production occurs at BEP facilities in Washington, D.C., and Fort Worth, Texas. Id. ¶ 4.
The Federal Reserve System 10. The Federal Reserve System ("FRS" or "System") consists of the Board of Governors, an agency of the federal government composed of members appointed by the President, which oversees the activities of the Federal Reserve Banks; twelve regional Federal Reserve Banks,
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which act collectively as our nation's central bank; and membership in the System for private commercial banks. Id. ¶ 10.
11. The Federal Reserve Board, rather than the BEP, issues Federal Reserve Notes to the Federal Reserve Banks. The Federal Reserve Banks, in turn, distribute Federal Reserve Notes to the public through the nation's depository institutions. Id. ¶ 11.
12. The Federal Reserve System purchases Federal Reserve Notes from the BEP at cost of production. The Federal Reserve Banks sell the notes to depository institutions at face value. Id. ¶ 13.
13. The Federal Reserve System detects worn and counterfeit Federal Reserve Notes and withdraws them from circulation. The FRS destroys worn notes, and forwards counterfeit notes to the United States Secret Service within the Department of the Treasury. Id. ¶ 14.
14. Approximately 95% of the Federal Reserve Notes produced by the BEP are used to replace notes withdrawn from circulation. The Federal Reserve Banks withdraw almost 34 million Federal Reserve Notes each day. Id. ¶ 15.
15. In Fiscal Year 2001, the Federal Reserve Banks withdrew and destroyed 7,727,626,921 Federal Reserve Notes (8,510 tons), with a face value in excess of $86 billion. Id. ¶ 15.
16. When a new currency design is placed in circulation, the FRS begins the withdrawal and destruction of the old design currency. Id. ¶ 15.
Past Currency Modifications and Their Costs 17. During the last decade, the Bureau has conducted two major redesigns of the currency, primarily to incorporate technological advances in preventing counterfeiting and
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fraudulent alteration. These are known as the "1996 redesign" and the "2004 redesign," although

some denominations, during the course of each redesign, were first issued before or after the year

stated. See Supplemental Declaration of Thomas A. Ferguson in Support of Defendant's

Renewed Motion to Dismiss or for Summary Judgment ¶ 3 [hereinafter Suppl. Ferguson Decl.].

18. The 1996 redesign involved the $5, $10, $20, $50, and $100 notes. This redesign

included the use of a watermark portrait on each note, an embedded security thread, microprinted

words, and color-shifting ink. The 1996 redesign also included (1) a large denomination numeral

on a solid, unprinted background, to facilitate recognition by persons with low vision, and (2) a

print feature detectable only under infrared illumination, with a distinct pattern for each

denomination, to facilitate the development of a new hand-held currency reader for the blind. Id.

¶ 4.

19. The approximate costs of the 1996 redesign were as follows:

Research, consultation, and redesign $ 1,527,259

Plate engraving and manufacture

$ 4,500,000

Purchasing and installing additional equipment

Inspection equipment

$ 1,119,622

In-house contract expenses

$ 195,000

Site preparation

$ 90,000

Public education

$ 26,342,198

Total initial costs

$ 33,774,079

Increased production costs

$ 31,148,771 (per year)

New personnel costs

$ 0 (zero)

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Replacing prematurely worn currency $ 0 (zero)

Total increased annual costs

$ 31,148,771

Id. ¶ 5.

20. Expenditures for the 1996 redesign were made over a period of eight years, from 1992

through 2000. The figures stated in the immediately preceding paragraph are given as of the year

in which each expenditure was incurred; thus, for example, expenditures incurred in 1999 are

given in 1999 dollars. Id. ¶ 5.

21. The 2004 redesign involves the $10, $20, $50, and $100 notes. The redesigned $20

and $50 notes have been issued, and the $10 note is scheduled to be issued in early 2006.

Issuance of the redesigned $100 note has not yet been scheduled. This redesign includes more

microprinting, small yellow denomination numerals on the back of each note, and greater

complexity, in addition to incorporating the watermark, security thread, and color-shifting ink of

the earlier design. The 2004 redesign also includes background color differences unique for each

denomination, to facilitate distinguishing among the denominations. Id. ¶ 6.

22. The approximate costs of the 2004 redesign have been as follows, as of July 31, 2005:

Research, consultation, and redesign $ 13,175,357

Plate engraving and manufacture

$ 5,000,000

Purchasing and installing additional equipment

Six Simultan offset presses $ 38,094,701

In-house contract expenses

$ 275,000

Site preparation

$ 6,100,000

Public education

$ 50,392,147

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Total initial costs

$ 113,037,205

Increased production costs

$ 18,834,068 (per year)

New personnel costs

$ 6,948,245 (per year)

Replacing prematurely worn currency $ 0 (zero)

Total increased annual costs

$ 25,782,313

Id. ¶ 7.

23. Expenditures for the 2004 redesign began in 2000, and are ongoing. The figures

stated in the immediately preceding paragraph are given as of the year in which each expenditure

was incurred; thus, for example, expenditures incurred in 2005 are given in 2005 dollars. Given

that the implementation of the 2004 redesign is ongoing, the above figures include certain

expenditures incurred in relation to all denominations included in the redesign, but do not include

certain other, future expenditures specific to the $10 and $100 denominations. Id. ¶ 7.

Changes Sought in the Complaint: Ramifications for BEP

24. Implementing the currency redesign sought in the complaint in this action would

entail financial and administrative burdens in the following areas: research and consultation;

planning the redesign; plate engraving and manufacture; purchasing and installing additional

equipment; producing the currency; public education; and replacing worn currency. See

Ferguson Decl. ¶ 21.

25. All of the costs of implementing the changes sought in plaintiffs' complaint would be

passed to the Federal Reserve System, which, in turn, would pass those costs to its member

banks and other private financial institutions. Banks and other financial institutions would then

recover those costs from their commercial and individual customers. Id. ¶ 22.

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A. Research, consultation, and redesign 26. The introduction of redesigned banknotes requires time for consultation with
interested entities, including the U.S. Secret Service, the Federal Reserve Board, and the Department of the Treasury. Id. ¶ 23.
27. Implementing the currency redesign sought in the complaint would involve consultation with external focus groups. Id. ¶ 23.
28. The size of each denomination would be a key issue to be determined in implementing the currency redesign sought in plaintiffs' complaint. After determining the size of each denomination, the process of designing each denomination would begin. Id. ¶ 24.
29. Designing different sizes of currency would significantly complicate and lengthen the redesign process, given that the use of different sizes would prevent applying the same design decisions to all denominations. Id. ¶ 25.
30. The redesign process would also be complicated and lengthened by the need to determine how to implement the Braille symbols and the raised printing sought in the complaint. Id. ¶ 25.
31. These initial tasks in implementing the redesign sought in the complaint — that is, from size determination to finalizing the design — would take approximately three to six years. Research, consultation, and design would cost between one and two million dollars. Id. ¶ 26. B. Plate engraving and manufacture
32. Producing redesigned Federal Reserve Notes requires engraving and manufacturing new printing plates. A template of the plates for each denomination is engraved by hand, and metallic printing plates are manufactured based on the hand-engraved templates. BEP employees
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engrave the templates by hand, and the plates are manufactured in-house by BEP's craftsmen. Id. ¶ 27.
33. The Bureau has approximately 455 printing plates that are presently used in the production of currency. Implementing the redesign sought in the complaint would require replacing approximately one-half of the Bureau's existing currency plates (given that the one-dollar bill, which would not be changed, accounts for approximately half of the Bureau's production). Id. ¶ 28.
34. The engraving and manufacture of new printing plates for the redesign sought in the complaint — from the start of engraving experimental designs to the delivery of all new plates necessary to produce the current numbers of each denomination — would take approximately five to seven years. Engraving and manufacturing the new plates would cost between 3 and 4 million dollars. Id. ¶ 29. C. Purchasing and installing additional equipment
35. The Bureau uses equipment to produce, inspect, and package currency at its production facilities. To implement the currency redesign sought in the complaint, the Bureau would have to acquire additional production equipment, and would have to replace half of its inspection equipment and half of its packaging equipment. Id. ¶ 30.
36. The Bureau's existing production equipment is designed to accommodate the size of the existing printing plates, which currently print 32 notes per sheet of currency paper. Id. ¶ 31.
37. In order to avoid the need to replace at least half of the Bureau's existing production equipment (which would entail designing, purchasing, and installing all new equipment), the
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printing plates for the redesigned currency would have to be the same size as the plates now in use. Id. ¶ 31.
38. Because the newly-designed bills would be larger than the existing bills, fewer bills would fit on each printing plate, requiring additional printing runs to maintain current production levels. Id. ¶ 31.
39. In order to perform additional printing runs, the Bureau would have to acquire additional production equipment to implement the redesign sought in the complaint. Id. ¶ 31.
40. To implement the currency redesign sought here, the Bureau's facility at Washington, D.C., would have to procure at least two additional intaglio presses, and the Fort Worth facility would have to procure at least two additional intaglio presses. The cost of acquiring those four additional intaglio presses would be between 30 and 40 million dollars. Id. ¶ 32.
41. Adding the new anti-counterfeiting features to the most recent design of the currency requires running each sheet of currency through an additional (offset) printing process, using new, sheet-fed equipment which the Bureau has already acquired. Id. ¶ 33.
42. The redesign sought in plaintiffs' complaint would entail printing fewer bills on each sheet, thus increasing the need for the new offset printing equipment in order to maintain current production levels. Id. ¶ 33.
43. To implement the redesign requested in the complaint, both the Washington, D.C., facility and the Forth Worth facility would each have to procure one additional offset printing press to add the new anti-counterfeiting features to the redesigned bills. The cost of acquiring those two additional offset presses would be between 16 and 21 million dollars. Id. ¶ 34.
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44. As part of the production process, the Bureau uses equipment to inspect the bills in order to ensure accurate and uniform output. This equipment examines each bill automatically, using software written for the Bureau by a federal contractor. Id. ¶ 35.
45. Changing the size of the currency, and producing different denominations in different sizes, would require not only changing the physical dimensions of the currency-handling portions of the inspection equipment, but also changing the software that governs the inspection process. Id. ¶ 35.
46. Varying the sizes of the denominations would eliminate the ability to use the same inspection machines for all denominations. This loss of flexibility would require adding inspection capacity in order to maintain current production levels. Id. ¶ 36.
47. To implement the currency redesign sought in the complaint, the Bureau would have to design, purchase, and install at least one new piece of inspection equipment for its Washington, D.C., facility and at least one new piece of inspection equipment for its Fort Worth facility. The cost of acquiring those two additional inspection machines would be between 16 and 21 million dollars. Id. ¶ 37.
48. After inspection, the bills run through another printing process to add the serial numbers and other identifying marks. The same machines that print serial numbers and identifying marks then cut and package the currency, because security and accountability considerations dictate that the bills be packaged in numerical sequence. Id. ¶ 38. Producing bills of different sizes would require designing and purchasing new equipment (and new software) to add serial numbers and identifying marks and to cut and package the currency. Id. ¶ 39.
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49. Eliminating the flexibility of using every machine for every denomination, to perform the tasks described in the immediately preceding paragraph, would require increased capability to maintain current production levels, and replacing existing equipment with more flexible equipment. Id. ¶ 39.
50. To implement the currency redesign requested in the complaint, the Bureau would have to design, purchase, and install ten new pieces of equipment, at each of its production facilities, to print serial numbers and identifying marks and to cut and package the currency. The cost of acquiring those twenty new pieces of equipment would be between 100 and 130 million dollars. Id. ¶ 39.
51. In addition to the above-stated figures for purchasing additional equipment, acquiring the necessary equipment would entail significant contracting costs. The Bureau would have to undertake a lengthy procurement process for each type of redesigned equipment needed to implement the currency redesign sought in plaintiffs' complaint. Approximately 22 BEP employees, devoting approximately 7,000 man-hours, would be required for this entire process. Id. ¶¶ 40- 44.
52. Designing new equipment to produce the redesigned currency would cost between 162 and 212 million dollars in contractor payments. Additionally, the Bureau would expend between $1.4 and 2 million in-house to award and administer contracts for the new equipment. A further expenditure of between $7.6 and 10 million could be expected for site preparation for the new and additional equipment. Id. ¶ 44.
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D. Production of the currency 53. Producing notes of different (and larger) sizes, in different colors, with an embossed
numeral and a Braille symbol, would entail costs that are not incurred in producing the existing currency. Id. ¶ 45.
54. Producing larger bills would require more of the specialized inks used in producing currency. Id. ¶ 45.
55. Producing the redesigned currency would mean purchasing more of the distinctive paper used for United States currency, both because larger bills would require more paper and because more of each sheet would be discarded in the production process (given that the size of each sheet of paper would remain the same, to avoid the need to replace approximately half of the Bureau's existing production machinery). Id. ¶ 45.
56. Other production expenses would also increase due to the currency redesign requested in the complaint, such as maintenance costs for the new equipment described above, additional man-hours for BEP's existing employees involved in production, and depreciation on the new equipment. Id. ¶ 45.
57. The above-described increases in production costs would total between 36 and 45 million dollars per year, at least. Id. ¶ 45.
58. The need to acquire additional equipment would also give rise to a need for additional personnel to operate the new equipment. For the new intaglio printing equipment, approximately 30 additional plate printers and 15 non-craft personnel would have to be recruited and hired. For the new offset presses, approximately 22 additional offset pressmen and 11 non-craft personnel would have to be recruited and hired. For the new currency inspection equipment, approximately
12

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23 bookbinders and 8 non-craft personnel would have to be recruited and hired. For the new numbering and packaging equipment, approximately 14 offset pressmen, 73 bookbinders, and 50 non-craft personnel would have to be recruited and hired. Id. ¶ 46.
59. In summary, to operate the new equipment needed for the currency redesign sought in plaintiffs' complaint, the Bureau would have to recruit and hire approximately 30 plate printers, 36 offset pressmen, 96 bookbinders and 84 non-craft personnel — for a total of 246 full-time equivalents at a total cost of approximately 15 to 20 million dollars per year. Id. ¶ 46.
60. The above figures do not include certain other increases in the cost of production due to the redesign requested in the complaint. For example, including a Braille symbol on each bill would require newly-designed equipment to imprint a Braille symbol on currency paper. Embossing a denomination numeral and adding a Braille symbol could result in additional, as-yet unknown packaging, handling, and storage expenses given that the embossed area, the Braille symbol, or both would increase the thickness of the note in that location. Id. ¶ 47; Suppl. Ferguson Decl. ¶ 9. E. Public education
61. An extensive public education campaign would be required to advance public acceptance of the redesigned currency. See Ferguson Decl. ¶ 48.
62. The extensive, worldwide public education necessitated by the change in sizes and other new features sought in the complaint would cost between 70 and 90 million dollars. Id. ¶ 48.
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F. Replacing worn currency 63. Two of the changes sought in the complaint — the printing of a "raised" (i.e.,
embossed) denomination numeral and the inclusion of a Braille symbol on each note — would cause the new currency to wear out faster than the existing currency. The additional ink on the embossed numeral would rub off, and the raised dots comprising the Braille symbol would wear away faster than the surrounding paper. Additional wear would result from daily handling as well as machine processing at banks and in vending machines. Id. ¶ 49; Suppl. Ferguson Decl. ¶ 9.
64. A Federal Reserve Note of the redesign sought in plaintiffs' complaint would no longer be fit for circulation — and would have to be withdrawn and replaced — when the embossed numeral or the Braille symbol had become sufficiently worn that a blind person could no longer recognize either of those features. See Ferguson Decl. ¶ 49.
65. Currently, on average, a five-dollar bill is withdrawn after approximately two years in circulation, a ten-dollar bill is withdrawn after approximately three years in circulation, a twenty-dollar bill is withdrawn after approximately four years in circulation, and both a fifty-dollar bill and a one-hundred dollar bill are withdrawn after approximately nine years in circulation. Id. ¶ 50.
66. Braille must be written on heavy, very thick paper in order to hold the dots and to avoid their being rubbed out easily. See Brunson 63; Stephens 24-25, 118.1
1 A citation to "Brunson," Stephens," or "Sheehan," followed by a number, is a reference to that witness's deposition and page number.
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67. If Braille were imprinted on thin paper of the type common to printed books, the

Braille would not withstand the pressure of use, and very quickly the dots would be rubbed out.

See Stephens 118.

68. Even with the heavy paper on which Braille is normally printed, the dots sometimes

become so worn as to be difficult or impossible to read. See Stephens 120.

69. According to one of the plaintiffs, superimposing a braille symbol on the currency

may not actually work because of the thinness of the paper. See Stephens 144.

70. According to the then-president of ACB, "Braille markings and raised print [on

currency would] wear down over time and become relatively indistinguishable from the texture

of the note paper." See Brunson 274-280 & Ex. 16 (emphasis added).

71. The inclusion of an embossed numeral and a Braille symbol would reduce the useful

(that is, blind-readable) life of each bill by at least forty percent. Id. ¶¶ 50, 51.

72. Based on the currency needs of the Federal Reserve System during Fiscal Year 2001,

the increased production volume caused by including an embossed numeral and a Braille symbol

on each bill (other than the $1 bill) would increase by between 92 and 109 million dollars per

year the overall costs of producing the country's currency. Id. ¶ 51.

G. Summary

73. The following table summarizes some of the costs, described above, of the currency

changes sought in plaintiffs' complaint:

Research, consultation, and redesign $1-2 million

Plate engraving and manufacture

$3-4 million

Purchasing and installing additional equipment

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Intaglio presses

$30-40 million

Offset presses

$16-21 million

Inspection equipment

$16-21 million

Numbering, cutting, and packaging equipment

$100-130 million

In-house contract expenses

$1.4-2 million

Site preparation

$7.6-10 million

Public education

$70-90 million

Total initial costs

$245 - 320 million

Production costs

$36-45 million (per year)

New personnel costs

$15-20 million (per year)

Replacing prematurely worn currency $92-109 million (per year)

Total increase in annual costs

$143 - 174 million

Id. ¶ 52.

74. The above table does not include potential costs that are not estimated above, such as

the increased cost of printing each denomination in a different color, and the additional

production, equipment, and material costs of including a Braille symbol. Id. ¶ 52.

Individual Costs of Certain Changes Sought or Suggested by the Plaintiffs

75. Stated below are the costs of certain specific changes in the currency, requested by the

plaintiffs during discovery in this action. All of these figures are given in 2005 dollars. See

Suppl. Ferguson Decl. ¶ 8.

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A. Embossing a denomination numeral 76. Initial capital costs to include an embossed numeral on each note would be roughly
$45,500,000, and additional annual operating costs would be approximately $16,000,000. Id. ¶ 9. B. Perforating or punching a hole
77. Perforating or punching a hole in each note would require an initial cost of approximately $75,000,000 for capital outlay for equipment, plus approximately $9,000,000 in additional annual production costs. The area of the note containing the perforations or holes would provide a weak point that could lead to degradation or tearing, thus shortening the average life for each note. Since the production of currency is primarily for replacement of worn notes removed from circulation, any shortening in the useful life of the notes would result in a reciprocal increase in production. While the percent of reduction in the useful life of a banknote with perforations or holes cannot be determined, if that reduction were significant, the corresponding requirement for increased production could well exceed the production capacity of the Bureau of Engraving and Printing's existing facilities, requiring the Bureau to incur additional costs (which could be significant) to increase its production capacity. Id. ¶ 10. C. Including a large denomination numeral
78. Initial costs to design and engrave printing plates with a large denomination numeral which is at least 60 percent of the current note would be approximately $4,500,000, and increased annual production costs would be approximately $400,000. This increased annual production cost is attributable to increased spoilage from set-off, which occurs when ink from an
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area of high ink concentration, such as the enlarged numeral, sloughs off onto the front of the next sheet of paper. Id. ¶ 11. D. Printing a different background color on each denomination
79. Assuming a change in background color only, without any significant redesign, the cost for capital outlay for equipment and site preparation to print a different predominant background color on each denomination would be approximately $48,000,000, while the estimated annual increase in production costs would be $20,000,000, primarily for labor. Id. ¶ 12. E. Placing a different geometric shape on each denomination
80. Printing a geometric shape, different for each denomination, on each note, would require a one-time cost of approximately $4,500,000 to design, engrave, and manufacture new plates. Id. ¶ 13. F. Including a foil feature perceptible to touch
81. Incorporating a foil feature that is perceptible to the touch on the surface of the currency would require an estimated capital outlay of $45,000,000 for machines, plus an estimated $6,500,000 for site preparation, spare parts, and training at both the Washington, D.C., and Fort Worth, Texas, facilities. Additional annual operating costs would include approximately $14,800,000 for additional staffing and approximately $520,000 for additional material due to spoilage. Including such a feature would also require incurring additional expenses to purchase the foil itself. Id. ¶ 14.
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Ramifications of the Requested Changes for the Federal Reserve System 82. In addition to the above-described burdens on the Bureau of Engraving and Printing, the currency changes sought in plaintiffs' complaint would impose very significant burdens on the Federal Reserve System. See Ferguson Decl. ¶ 54. 83. The Federal Reserve System's tasks of circulating new and fit Federal Reserve Notes, withdrawing worn notes, and identifying counterfeit notes are performed automatically, using sophisticated processing and authentication systems. Id. ¶ 54. 84. The redesign of the currency sought in the complaint would, at the very least, require the FRS to adjust its equipment and sensors to recognize the new features of the redesigned Federal Reserve Notes. Id. ¶ 54. 85. The FRS would be required to purchase new equipment to perform these tasks on notes of different sizes (rather than only to adjust its equipment and sensors), if the largest redesigned bill exceeded the size parameters of existing equipment. Id. ¶ 54. 86. Because the one-dollar note would be the smallest in size, it is likely that the redesign sought in the complaint would require the FRS to purchase completely new equipment. Id. ¶ 54. 87. The FRS's cost of purchasing new Federal Reserve Notes from the BEP would increase as a result of any decrease in the useful life of Federal Reserve Notes due to the addition of the Braille symbol and raised numeral requested by the plaintiffs. Id. ¶ 55. 88. The FRS's currency-related costs are passed to its member depository institutions. Those institutions, in turn, pass those costs to their customers. Thus, the increased costs to the FRS that would result from implementing the redesign sought in the complaint, including the cost of replacing or modifying equipment and increased orders for new notes due to decreased
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usable life of the notes, would be borne by the public through increased bank fees, lending rates, and cost of services. Id. ¶ 56.
Ramifications of the Requested Changes for the Private Sector 89. The currency redesign sought in plaintiffs' complaint would impose significant burdens on the private sector. Id. ¶ 57. 90. A change in the size of the currency would require replacing or altering automated teller machines and automatic vending machines. Id. ¶ 57. 91. The changes required by the currency redesign sought in the complaint would require thousands of hours of design, planning, and labor, and millions of dollars in labor and equipment. Id. ¶ 57. 92. According to a member of ACB's Advocacy Services Committee — which approved the filing of the complaint and reviewed its text before filing — making each denomination a different size "really does pose an undue burden on business." See Brunson 91, 104-05, 228-29, 234-37 & Ex. 11.
Use of Currency by the Blind and Visually Impaired 93. Plaintiff Dr. Otis Stephens is totally blind and has been totally blind during his entire life except for a small amount of peripheral vision that he had as a small child. See Stephens 6-7. 94. Melanie Brunson, the designee of the American Council of the Blind in this case under Rule 12(b)(6) of the Federal Rules of Civil Procedure, is totally blind and has been totally blind during her entire life. See Brunson 6. 95. Plaintiff Patrick Sheehan is legally blind but has some vision in one eye. See Sheehan 59 & Ex. 3. Mr. Sheehan was included as a plaintiff in this case to represent the point of view of
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those with low vision. See Sheehan 131-32. 96. All three of plaintiffs' witnesses — Dr. Otis Stephens, Melanie Brunson, and Patrick
Sheehan — fold each denomination of their currency in a different way to distinguish among the denominations. See Brunson 32-33; Stephens 85-89; Sheehan 69-71.
97. Otis Stephens demonstrated his methods for folding currency during his deposition, and correctly identified a number of his bills based on how they were folded. See Stephens 86-88.
98. Some blind persons speak the value of each bill when handing currency to a cashier. See Brunson 33; Stephens 90-91.
99. Some blind persons hold onto each bill until the cashier acknowledges the denomination. See Brunson 33; Stephens 91.
100. In addition to folding their currency, certain blind (and visually-impaired) persons also carry each denomination in a different location on their person. See Brunson 33; Stephens 90; Sheehan 69-71.
101. Otis Stephens purchases goods with currency approximately 70 times every two months, and he uses currency for approximately one-half of the occasions on which he purchases goods or services in a face-to-face transaction. See Stephens 106-107 & Ex. 3.
102. Patrick Sheehan purchases goods or services with currency approximately 65 times every two months, and he uses currency for approximately one-half of the occasions on which he purchases goods or services in a face-to-face transaction. See Sheehan 95-97 & Ex. 3.
103. Melanie Brunson purchases goods with currency approximately 10 times each month. She uses a credit card or debit card approximately once every six months each, and she
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never uses a check for face-to-face transactions. See Brunson 60-63 & errata sheet. 104. Otis Stephens finds that currency transactions are easier than going through the
credit card routine and that the use of currency for small purchases saves time. See Stephens 108.
105. Patrick Sheehan thinks that smaller purchases are more convenient with cash. See Sheehan 97.
106. Patrick Sheehan can sometimes tell the denomination of a bill by sight, depending on the ambient lighting and the age of the bill. See Sheehan 40-41, 48-49, 55.
107. Patrick Sheehan correctly identified four bills — a $1 bill, a $5 bill, a $10 bill, and a $20 bill — that were shown to him during his deposition. See Sheehan 49-54.
108. When Patrick Sheehan is able to identify a $5, $10, or $20 bill by sight, he uses the large numbers on the back of each bill to do so. See Sheehan 41-42, 53.
109. Patrick Sheehan serves as treasurer of his chapter of an ACB affiliate, and, in that position, he handles currency and prepares deposits on his own. See Sheehan 37-41 & Ex. 3.
110. Otis Stephens has been defrauded one time in currency transactions, during his lifetime. See Stephens 104-105 & Ex. 3.
111. "[L]ess than half a dozen times," cashiers have told Otis Stephens that he was offering a larger denomination than he thought he was. See Stephens 112-115.
112. Melanie Brunson initially testified that she had been defrauded twice in currency transactions, during her lifetime, but her further testimony indicated that both of those incidents were unsuccessful attempts to defraud her. See Brunson 54-57, 208-13.
113. Patrick Sheehan has been defrauded approximately six or seven times during the last
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20 years — three times by taxi drivers, and "maybe about three or four times" by cashiers. See Sheehan 140 & Ex. 3.
114. Some blind and visually-impaired persons use and own a variety of devices to assist them in reading and writing, some of which cost more than $270. See Brunson 7-9, 45-46, 4851; Stephens 95-98, 100-104; Sheehan 81-89 & Ex. 3.
115. Otis Stephens, Melanie Brunson, and Patrick Sheehan each owns a "notetaker," which has a Braille keyboard and a storage medium to store what has been typed. A notetaker costs between $3200 and $5500, with "refreshable Braille" output that can be read on the device itself. See Brunson 7-9, 49-51; Stephens 102-104; Sheehan 85-87. Other notetakers, with voiceonly output, cost approximately $1800. See Sheehan 84-85, 87.
116. Otis Stephens and Melanie Brunson each owns a Braille printer, which embosses Braille characters on pieces of paper. These cost between $2000 and $3000. See Brunson 45-46; Stephens 100-101.
117. To convert a typed or printed page to Braille that can be printed on a Braille printer, the page can be scanned and run through "Braille translator" software, which costs approximately $500 or $1000. Melanie Brunson owns this software. See Brunson 45-46.
118. Otis Stephens and Melanie Brunson each owns a "Braille writer," which is like a typewriter in that the user types on a keyboard, and the device makes Braille impressions directly on a piece of paper. A Braille writer costs between $250 and $800. See Brunson 48-49; Stephens 101-102.
119. Otis Stephens has software that can read a document aloud after the document has been scanned. See Stephens 95-96. At least two different versions of such software exist
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(produced by different companies) — one program called "Arkenstone," which sells for approximately $1500 (which Dr. Stephens has), and another called "Kurzweil," which sells for approximately $1200. See Stephens 97-98; Sheehan 81-82.
120. Patrick Sheehan uses the Kurzweil software at work; his wife, who also has low vision, has the Kurzweil software at home. See Sheehan 81-83.
121. Patrick Sheehan owns a closed-circuit television set to magnify material for reading; one could now buy such a unit for approximately $2100. See Sheehan 87-90 & Ex. 3.
Hand-Held Currency Readers 122. A portable assistive device is available to identify currency for the blind and visually impaired. This device, called the "Note Teller 2," sells for about $270. See Declaration of Julia Wilson ¶ 8. 123. The Note Teller 2 measures approximately 6 inches long, 3 inches wide, and 1 inch high at its highest point, and weighs approximately 6.70 ounces. Id. ¶ 2. 124. About two seconds after a bill is inserted into the Note Teller 2, the device announces the denomination in a recorded voice. Id. ¶ 4. 125. Testing of the Note Teller 2 indicates that it correctly identifies all modern versions of the $1, $5, $10, and $20 bills, most of them in any of the four possible orientations upon insertion. Id. ¶¶ 3, 6 & Table A, Table B. All bills were read correctly in at least two of the four possible orientations. Id. There were no incorrect readings in testing; when the device cannot read a bill correctly, it announces "cannot read." Id. 126. The Bureau of Engraving and Printing is promoting the development of a smaller, lower-priced reader. To that end, the Bureau solicited proposals in May 2004 for the
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development of a pocket-size currency reader with a design capable of profitable mass production at a target retail price of $35.00 or less. An award under this solicitation was made in September 2004, to Mnemonics, Inc., of Mt. Laurel, New Jersey. Pursuant to the solicitation, BEP will pay up to $50,000 toward development of the reader. A working prototype is due under this contract on September 30, 2005. Mnemonics, Inc., has committed to produce the reader that is developed under the solicitation, and must, pursuant to the terms of the solicitation, begin marketing the device within three years after BEP accepts the prototype. See Suppl. Ferguson Decl. ¶ 15.
What This Lawsuit Seeks 127. According to the American Council of the Blind, through its Rule 30(b)(6) designee, the complaint in this action "doesn't necessarily [seek to] require that [all of the changes that it lists] be done," and, "ultimately, it's the government's job to figure out exactly how the currency should be changed." See Brunson 181. 128. According to Patrick Sheehan, for "ACB, to prescribe a solution [regarding the currency] would not be appropriate for the organization, because first of all, we're not experts in currency design particularly." See Sheehan 45-46.

Dated: August 31, 2005

Respectfully submitted,
PETER D. KEISLER Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney

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Case 1:02-cv-00864-JR Document 33-1 Filed 08/31/2005 Page 68 of 68 STUART A. LICHT, N.Y. Bar 1237643 Assistant Director W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT
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 Case 1:02-cv-00864-JR Document 12 Filed 11/12/2002 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PAUL H. O'NEILL, Secretary of the Treasury, et al., )

)

Defendants.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

November 12, 2002

ROBERT D. McCALLUM, JR. Assistant Attorney General
ROSCOE C. HOWARD, JR. United States Attorney
RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel
Attorneys, Department of Justice Civil Division, Room 986 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8202 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

Case 1:02-cv-00864-JR Document 12 Filed 11/12/2002 Page 2 of 19
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. The Rehabilitation Act Does Not Require the Sweeping Changes Sought by the Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Plaintiffs Have Not Justified their Request for Discovery . . . . . . . . . . . . . . . . . . 12 III. Two of Plaintiffs' Prayers for Relief Must Be Dismissed . . . . . . . . . . . . . . . . . . 14
A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury . . . . . . . . . . . . . . . . 15
B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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INTRODUCTION By statute, the "form and tenor" of United States Federal Reserve Notes "shall be . . . as directed by the Secretary of the Treasury." 12 U.S.C. § 418. Plaintiffs' complaint acknowledges, as they must, that "the form and design of United States currency is solely within the discretion of the Secretary of the Treasury." See Complaint ¶ 22; see also 12 U.S.C. § 418. Thus, the plaintiffs now contradict themselves by asserting, in response to defendants' motion for summary judgment, that this very principle is "simply not supported by the applicable legal authority." See Reply Memorandum in Opposition to Defendant's Motion for Summary Judgment at 1 [hereinafter Pls' Opp.]. Nevertheless, plaintiffs' extensive argument that the Secretary's discretion is subject to the Rehabilitation Act is irrelevant here. See id. at 1-4. Defendants do not contend — and their opening brief did not argue — that the statute conferring that discretion entirely precludes reviewing the design of currency under the Rehabilitation Act. Cf. id. at 3. Rather, that statutory conferral of discretion evidences a congressional intent that must guide and color the consideration of plaintiffs' claims under the Rehabilitation Act. Under Supreme Court precedent, the Rehabilitation Act does not require any accommodation that would impose "undue financial and administrative burdens." Southeastern Community College v. Davis, 442 U.S. 397, 412 (1979); see Alexander v. Choate, 469 U.S. 287, 301 (1985). The gravamen of defendants' motion for summary judgment is that the changes in the currency sought here would impose undue burdens on the Bureau of Engraving and Printing, to which the Secretary of the Treasury has delegated the development of currency design and the production of currency; on the entire banking and commercial sector, which would have to replace or modify automated teller machines, vending machines, and other currency-handling

Case 1:02-cv-00864-JR Document 12 Filed 11/12/2002 Page 4 of 19
equipment; on the Federal Reserve System, which circulates the currency and removes worn and counterfeit notes from circulation; and on the public as a whole. The fact that the "form and design" of currency are statutorily committed to the sole discretion of the Secretary raises the bar of reasonableness in relation to any accommodation under the Rehabilitation Act, and counsels strongly against any court order requiring a redesign of the currency.
Even if summary judgment of this entire action were deemed inappropriate, two of plaintiffs' individual prayers for relief should be dismissed — that is, their request for an order that certain specific features be included in any redesigned currency, and their request for an order requiring redesign of the one-dollar bill. See Complaint at 16-17.
ARGUMENT Summary judgment must be entered for a party who shows that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Supreme Court decisions establish that summary judgment is to be viewed favorably: "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Thus, in opposing a motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." See Fed. R. Civ. P. 56(e). Similarly, the Supreme Court has held, "the mere existence of some alleged factual dispute . . . will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (emphasis
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in original). In addressing what makes a dispute "genuine," the Court has said that the nonmoving party must present "sufficient evidence" favoring his view of the facts "for a jury to return a verdict" for him. Id. at 249. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted); see Fitzpatrick v. Catholic Bishop, 916 F.2d 1254, 1256 (7th Cir. 1990) ("The days are gone, if they ever existed, when the nonmoving party could sit back and simply poke holes in the moving party's summary judgment motion."), cert. denied, 473 U.S. 923 (1985). Finally, a dispute as to an issue of law cannot preclude summary judgment.
Under this precedent, there is no genuine dispute as to any material fact in this case, and the defendants are entitled to judgment as a matter of law. I. The Rehabilitation Act Does Not Require the
Sweeping Changes Sought by the Plaintiffs Plaintiffs seek sweeping changes in the United States currency. Specifically, they seek an order, under the Rehabilitation Act, requiring (1) that each denomination have a different length, height, and color from all others, (2) that a "raised" (i.e., embossed) denomination numeral and a Braille symbol be included on each note, and (3) that a denomination numeral at least one-half the height of the note, printed in black ink "on a white surface," be included on each note. See Complaint at 16-17. As defendants have shown in their opening memorandum, implementing these changes would require an extensive effort of several years' duration, affecting, to one degree or another, every employee of the Bureau of Engraving and Printing ("BEP" or "Bureau"). See Declaration of Thomas A. Ferguson ¶¶ 26, 29, 43, 44, 53 [hereinafter Ferguson Decl.].
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The extent of the changes sought and the overall burden of implementing them — both financial and administrative — are reflected in the financial costs. Specifically, the initial expenses attributable to plaintiffs' redesign (research, consultation, and redesign; engraving and manufacturing new printing plates; purchasing and installing new equipment; and public education) would amount to between 245 and 320 million dollars. Id. ¶ 52. Increased annual production costs due to the redesign would total between 143 and 174 million dollars — not counting the increased cost of including an embossed numeral and Braille symbol on each bill, nor the cost of increasing the Bureau's production capacity to meet the increased demand due to the shorter life of the redesigned notes, whose extent is unknown at this time. Id. ¶¶ 52, 55.1 This proposed redesign of the currency would also have very substantial impacts on other persons and entities — specifically, the Federal Reserve System and the entire American public. Id. ¶¶ 54-57.
Given this monumental impact on the BEP's operations and the associated burdens on other persons and entities, the currency redesign sought by the plaintiffs would clearly impose "undue financial and administrative burdens" for purposes of the Rehabilitation Act, and a refusal to undertake this task is well within the Secretary of the Treasury's statutory discretion. Davis, 442 U.S. at 412; 12 U.S.C. § 418. The burdens described above and in defendants' opening memorandum far exceed the proposed accommodations held unreasonable in
1 It is not correct, as plaintiffs assert, that the administrative and financial burdens of implementing their changes could be reduced by combining their redesign with the now-pending 2003 security updates. See Pls' Opp. at 8. Even if this Court were to grant judgment for plaintiffs (presumably after the discovery that they seek and after they had actually moved for summary judgment), and even if defendants were to decide not to appeal that ruling, the planning for plaintiffs' redesign could not conclude in time for the redesign to occur simultaneously with the 2003 updates.
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Southeastern Community College v. Davis and Alexander v. Choate. 442 U.S. at 407-08, 412; 469 U.S. at 308. Summary judgment should, therefore, be entered for the defendants.
Plaintiffs make six arguments in attempting to avoid this conclusion: first, that defendants cannot rely on the Supreme Court's decisions in Davis or Alexander because the facts presented there are not analogous to those in this case, see Pls' Opp. at 7; second, that defendants' declaration addresses only the burden of varying the sizes of the denominations, and "offers no support" regarding the burden of implementing the other elements of plaintiffs' proposed redesign, id. at 4-5; third, that defendants' declarant does not state the "source" of his cost estimates, id. at 5; fourth, that plaintiffs' redesign would be less burdensome than defendants assert because higher denominations could be smaller than the one dollar bill, id. at 5-6; fifth, that defendants cannot rely on the costs of plaintiffs' redesign because such costs would ultimately be borne by "commercial banks" rather than by the government, id. at 7; and sixth, that "any increased costs in manufacturing paper currency would be minuscule when compared to the overall size of the U.S. commercial banking system." Id. at 8. None of these arguments, either singly or in concert, constitutes a basis for denying defendants' motion for summary judgment. None of them, significantly, raises a genuine issue of any material fact.
1. The Applicability of Davis and Alexander Plaintiffs' assertion regarding the applicability of Davis and Alexander needs little response. The rules set forth in those decisions regarding the extent of the need to accommodate and what constitutes reasonable accommodation obviously apply (and have been applied by lower courts) in every kind of setting where a plaintiff seeks accommodation under the Rehabilitation Act. Moreover, even the specific facts and reasoning of Davis and Alexander
5

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make those decisions much more instructive here than the plaintiffs are willing to admit. In Davis, the plaintiff sought changes in the defendant's program to enable her to secure the benefits of that program, just as the plaintiffs here seek changes in the currency to enable them to use the currency more easily. The Supreme Court held, however, that the Rehabilitation Act requires "evenhanded treatment" of handicapped persons — which the currency produced by the defendants already provides — but does not require "affirmative efforts to overcome the disabilities caused by handicaps" — which plaintiffs seek in the major currency redesign requested here. 442 U.S. at 410.
Moreover, like the plaintiffs here, the plaintiffs in Alexander asserted that the burden of the challenged government action "[fell] most heavily on the handicapped," and that that burden could be avoided by choosing a course that "would meet the [government's] budgetary constraints without disproportionately disadvantaging the handicapped." 469 U.S. at 306. The Court ruled in defendants' favor largely because of the administrative and fiscal consequences of the accommodation sought, as defendants contend this Court should do here. Id. at 308. In one sense, nevertheless, the plaintiffs are correct that this case differs from Davis and Alexander: the burdens of the accommodations sought here far exceed, both qualitatively and quantitatively, anything imagined in those cases.
2. The Comprehensiveness of Defendants' Evidence Plaintiffs also incorrectly characterize the breadth of defendants' declaration. In addition to describing the administrative and fiscal burdens of varying the size of each denomination, the declaration describes, as much as possible at this point, the burdens of implementing plaintiffs' other proposed changes. For example, the initial, overall tasks required to make all of plaintiffs'
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changes are described in detail. See Ferguson Decl. ¶¶ 23-29, 48. Those tasks — regarding research, consultation, redesign, plate engraving and manufacture, and public education — apply to all elements of plaintiffs' proposed redesign.
Moreover, the declaration describes in detail the effect, on the life expectancy of the redesigned bills and on the resulting costs of replacing worn currency, of the Braille symbol and the embossed numeral sought by the plaintiffs. Id. ¶¶ 49-51. That the declarant was not able to estimate the cost of producing the Braille symbol and the embossed numeral, or the cost of other challenges related to their inclusion — given uncertainties as to how those elements could be implemented, see id. ¶ 47 — does not undermine the conclusion that the task would be unduly burdensome. Even in absence of evidence regarding the specific amount of those additional costs, the evidence already presented regarding the burdens of implementing the changes sought by the plaintiffs is more than adequate to establish that that task would be unduly burdensome. Indeed, defendants' very inability to estimate some of the associated costs reflects the difficulty and expense of implementing plaintiffs' changes, due merely to the need to determine how to implement those changes.
3. The "Source" of Defendants' Cost Estimates The "source" of defendants' cost estimates is obvious and irrefutable: The Bureau of Engraving and Printing ("Bureau" or "BEP") is solely responsible for developing and producing U.S. currency. Id. ¶ 3. The BEP has extensive experience in planning and carrying out changes in the currency, and in handling the costs of implementing changes and producing currency. Indeed, the Bureau carried out an extensive redesign of the currency in 1996. Id. ¶ 9. Even the
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plaintiffs concede the Bureau of Engraving and Printing's "expertise" regarding the cost of producing currency. See Pls' Opp. at 10.
Moreover, the fact that the figures stated in defendants' declaration are estimates does not undermine their reliability. The declaration states unequivocally that "the Bureau is more than reasonably certain that [each element of] expense would at least equal the low end of the range given." See Ferguson Decl. ¶ 18. Contrary to plaintiffs' assertion, defendants' fifty-eight paragraph, nineteen-page declaration is far from "conclusory." See Pls' Opp. at 10. A conclusory declaration on this subject would baldly assert that the cost of implementing plaintiffs' changes would total at least X number of dollars, without further explanation, rather than carefully and thoroughly describing each task involved and the cost of each separate task. Indeed, the fact that defendants' declaration gives a range of figures for each element of cost, rather than purporting to state each and every cost with impossible precision, illustrates the care with which the Bureau has examined the burden of plaintiffs' proposal. Defendants need not produce every document and every calculation on which their reasonable estimates are based, and the plaintiffs, in opposing summary judgment, cannot rely on a general allegation that defendants' evidence is incomplete. See Fed. R. Civ. P. 56(e) ("an adverse party may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial").
4. Relative Sizes of One Dollar Bills and Other Denominations Plaintiffs also seek to undermine one of the assumptions used in defendants' cost estimates: that is, that the lowest denomination (the one-dollar bill) would be the smallest in size. That assumption is based on the potential for an exercise of fraud upon a blind person: "If
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another, higher denomination were smaller in size than the one-dollar bill, an unscrupulous merchant or other person could, theoretically, cut a one-dollar bill down to the size of the other denomination, and pass it to a blind person as the higher denomination." See Ferguson Decl. ¶ 20. In attempting to controvert this assumption, plaintiffs either misunderstand or deliberately misrepresent the concern expressed by defendants. See Pls' Opp. at 6. The concern is not that "an unscrupulous vendor could fold a $1.00 bill" to the size of a higher denomination — which, as plaintiffs assert, "[a] blind person could easily detect," id. — but rather that a merchant could cut a one-dollar bill to the size of a larger denomination — which would be impossible for a blind person to detect.2
In any event, as stated in defendants' declaration, "making another denomination smaller than the one-dollar bill would not significantly affect the cost estimates" for implementing plaintiffs' changes. See Ferguson Decl. ¶ 20. Plaintiffs contend that producing smaller bills would "use less paper, less ink, and would [enable the Bureau] to produce more of the higher denomination notes in the same area of paper." See Pls' Opp. at 6. Much of the fiscal burden of plaintiffs' redesign, however, would be attributable not to the mere increased cost of paper and ink — although that is a factor — but to the switch from producing bills of one size, in essentially the same design, to producing bills of different sizes with the other features sought by the plaintiffs. Moreover, even if the one-dollar denomination were not the smallest bill — which, as explained above, it should be — plaintiffs cannot rationally contend that all of the redesigned bills should or would be smaller than the current one-dollar bill; at some point, a bill
2 Plaintiffs' attempted analogy to metal coinage does not work. See Pls' Opp. at 6. A merchant could not cut a nickel to the size of a dime using a pair of scissors.
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would become too small for convenient public use. Thus, some denominations, at least, would be larger than the existing currency.
5. Ultimate Placement of the Burdens The BEP's ability to pass to other entities the costs of any redesign of the currency does not preclude defendants from relying on those costs in seeking to avoid a court order compelling the redesign. First, the same argument could be made in relation to any governmental defendant whose expenses are covered by industry fees or other non-general revenue funds. That argument, if accepted, would eliminate the "undue burden" defense for the United States Postal Service and many other governmental defendants in Rehabilitation Act cases. Moreover, the Secretary of the Treasury, a defendant here, has a legitimate interest in protecting the banking sector, the commercial sector, and the American people from an adverse judgment that could have significant macroeconomic consequences. In any event, the fiscal impact would be only one consequence of a judgment for the plaintiffs. For example, creating and implementing the redesign sought here would occupy scores of BEP employees for a number of years, distracting them from other important tasks in relation to the development and production of currency, including, for some employees, further advances against counterfeiting. See Ferguson Decl. ¶¶ 9, 26, 29, 40, 44. Similarly, plaintiffs' redesign would pose a host of collateral challenges for the BEP, such as the need to find space for additional equipment. The Bureau would bear these and other non-financial burdens both initially and ultimately.
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6. Size of "the U.S. Commercial Banking System" "[T]he overall size of the U.S. commercial banking system" cannot mark the bounds of reasonable accommodation in relation to the design of currency. Contra Pls' Opp. at 8. First, this argument is analogous to an assertion that the size of a federal agency's tax base should justify the imposition of enormous burdens in accommodating the handicapped. As other courts have held, accepting that assertion would suck the "reasonableness" out of "reasonable accommodation." See Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 139 (2d Cir. 1995) ("[W]here the employer is a government entity, Congress could not have intended the only limit on the employer's duty to make reasonable accommodation to be the full extent of the tax base on which the government entity could draw."); see also Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 543 (7th Cir. 1995) ("If the nation's employers have potentially unlimited financial obligations to 43 million disabled persons, the Americans with Disabilities Act will have imposed an indirect tax potentially greater than the national debt. We do not find an intention to bring about such a radical result in either the language of the Act or its history."). If the size of the banking system were determinative here, then almost no burden would be too great. Moreover, the very fact that plaintiffs refer to the size of our national banking system in attempting to justify the accommodations that they seek illustrates the inappropriateness of judicial relief here. If the size of the nation's entire banking system is relevant to the reasonableness of the accommodations sought, then the proposed accommodation is, ipso facto, not "reasonable" under the Rehabilitation Act. Whether this country should undertake changes in its currency so sweeping as to affect its entire commercial and banking system should be determined, not by the courts, but by the legislative and administrative processes responsible for
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determining national policy.3 This is especially true where the task in question — the design of our national currency — is statutorily committed to the discretion of a specific federal official. The Rehabilitation Act simply was not intended as a vehicle for major social reform affecting the daily life of every American. II. Plaintiffs Have Not Justified Their Request for Discovery
In addition to opposing defendants' motion for summary judgment on its merits, plaintiffs ask the Court to "defer any ruling" on the motion so that plaintiffs can "conduct such discovery as may be required." See Pls' Opp. at 10. The plaintiffs have not, however, satisfied the procedural or substantive requirements for securing a continuance of the pending motion.
As a preliminary matter, the Federal Rules of Civil Procedure provide that a motion for summary judgment may be continued for discovery if "it appear[s] from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." See Fed. R. Civ. P. 56(f). The first shortcoming in plaintiffs' request, therefore, is that it is not supported by an affidavit. Nor would presenting an affidavit be an empty formality here: Such an affidavit could (and should) state, for example, what efforts counsel has made to secure whatever facts are allegedly needed to oppose defendants' motion.4
3 In the same class is plaintiffs' argument that the United States should change its currency for visually-impaired persons because other countries have done so. See Pls' Opp. at 6. Such a development might be relevant to a policy decision, but it is not relevant to the reasonableness of judicial relief under the Rehabilitation Act. In any event, factors that do not exist in relation to the currency of other countries may affect that decision in relation the United States currency. For example, given that the U.S. dollar is the currency of choice in many foreign and international transactions, United States currency is subject to a much higher rate of wear, and demands more careful and thorough design study, than the currency of other countries.
4 Similarly, Plaintiff's Response to Defendant's Rule 7.1 Statement of Material Facts Not (continued...)
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More importantly, plaintiffs have not made the substantive showing necessary to justify a continuance for discovery. A party seeking such a continuance must —
file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. Hudson River Clearwater v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989), quoted in Jarvis v. Technical Land, Inc., 175 B.R. 792, 796 (D.D.C. 1994); accord Ned Chartering & Trading, Inc. v. Republic of Pakistan, 294 F.3d 148, 152 (D.C. Cir. 2002) (approving district court's requirement that non-moving party "demonstrate how the further discovery [it] request[ed] would produce any issues of material fact"); Carpenter v. Federal Nat'l Mortgage Ass'n, 174 F.3d 231, 237 (D.C. Cir.) (requiring that party requesting discovery "indicate what facts she intended to discover that would create a triable issue and why she could not produce them in opposition to the motion"), cert. denied, 528 U.S. 876 (1999); Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) ("Without some reason to question the veracity of [affidavits submitted by the movant], Strang's desire to 'test and elaborate' affiants' testimony falls short; her plea is too vague to require the district court to defer or deny dispositive action."). In this case, plaintiffs' "vague" plea is that they need to conduct "such discovery as may be required" to "ascertain the reliability" of defendants' evidence. See Pls' Opp. at 10; Strang, 864 F.2d at 861. Aside from a general assertion that defendants did not submit "documentation"
4(...continued) in Dispute is inconsistent with the Local Rules, in that it does not "include references to the parts of the record relied on to support the statement." See Local Rule 7.1(h).
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for the costs described in their declaration, plaintiffs give no reason to "question the veracity" of the declaration itself. See Pls' Opp. at 10; Strang, 864 F.2d at 861. Nor do they state "what facts" they expect to obtain in discovery or how those facts would defeat summary judgment. See Hudson River Clearwater, 891 F.2d at 422. Rule 56(f) "does not condone a fishing expedition" through defendants' files simply to search for any document that might possibly undermine the evidence already submitted by the defendants. See Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997).
Furthermore, plaintiffs' only purported justification for their failure to produce any facts in opposing defendants' motion for summary judgment is that defendants' statements regarding the costs of implementing the changes sought here "lie exclusively within the knowledge of the BEP." See Pls' Opp. at 10. But plaintiffs present no support for that assertion, such as by stating "what effort" they have made (if any) to secure testimony from outside the federal government, or why they have been "unsuccessful" in any such effort. See Hudson River Clearwater, 891 F.2d at 422. Plaintiffs cannot expect the defendants to do their "homework" for them. III. Two of Plaintiffs' Prayers for Relief Must Be Dismissed
Aside from the merits of defendants' motion for summary judgment, two of plaintiffs' prayers for relief should be dismissed or stricken from the complaint: specifically, an order requiring the inclusion of certain specific features in a redesign of the currency would be precluded by the Federal Reserve Act, under which the specifics of any redesign would be within the sole discretion of the Secretary of the Treasury; and an order requiring a redesign of the onedollar bill would be precluded by an express legislative prohibition against redesigning the one-
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dollar bill. See Complaint at 16-17. See generally Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979) (upholding dismissal of certain prayers for relief but not others).5
A. The Specific Nature of Any Redesign Would Be Within the Sole Discretion of the Secretary of the Treasury
Plaintiffs' prayers for relief, if granted as now pled, would necessarily involve this Court in redesigning the currency. For example, their request for a "denomination numeral . . . printed with black ink on a white surface" would presumably require the Court to determine whether the proposed background for such numeral were sufficiently "white" to make the bills "accessible to people with visual disabilities," as requested by the plaintiffs. See Complaint at 16-17. Similarly, the Court would presumably be required to determine or approve the precise height of the "raised printing" sought by the plaintiffs. Id. at 17.
It is not true, as plaintiffs assert, that the authority "to review the Secretary's design of paper currency under the Rehabilitation Act . . . necessarily [entails] the authority to review the specifics of any such redesign . . . ." See Pls' Opp. at 3. Although defendants do not argue that review under the Rehabilitation Act is altogether precluded by the Secretary's statutory discretion regarding the design of currency, requiring the Secretary to submit the details of a proposed redesign to the Court for formal approval would eliminate that discretion entirely. The Court's role here, should the existing currency be found to violate the Rehabilitation Act, would be to
5 Plaintiffs have not responded to a third non-dispositive argument included in defendants' motion for summary judgment: that is, that the Treasurer of the United States should be dismissed as a defendant herein because she has no role in the design or production of currency. In absence of any opposition from the plaintiffs, this aspect of defendants' motion must be granted.
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enter judgment to that effect and to leave the redesign up to the official upon whom Congress has conferred that task.
B. Congress Specifically and Expressly Prohibits Any Redesign of the One-Dollar Bill
Nowhere is plaintiffs' refusal to acknowledge the weight of authority against them more evident than in their insistence that the defendants can (and must!) be required to redesign the one-dollar bill. Plaintiffs' only response on this issue is to repeat language from a 1999 congressional committee report. See Complaint ¶ 45; Pls' Opp. at 8-9; see also H.R. Conf. Rep. No. 105-789, at 76 (1998), reprinted in 144 Cong. Rec. H9870, H9890 (daily ed. Oct. 7, 1998). Since that language has never been enacted as legislation, however, it was merely precatory at best.
More importantly, plaintiffs ignore the positive prohibition, in current and past appropriations acts for the Department of the Treasury, against using any federal funds to "redesign the $1 Federal Reserve note." See Pub. L. No. 107-67, § 117, 115 Stat. 514, 525 (2001). Plaintiffs do not (and could not) attack the validity of that prohibition, which would prevent including the one-dollar bill in any redesign of the currency pursuant to any adverse judgment in this action.
CONCLUSION Accordingly, defendants' motion for summary judgment should be granted, and this action dismissed with prejudice. If this entire action were not disposed of on summary judgment, the Court should (1) dismiss the prayer for relief in which plaintiffs seek the inclusion of specific features in a
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redesign of the currency; (2) dismiss the prayer for relief in which plaintiffs seek a redesign of the one-dollar bill; and (3) dismiss the Treasurer of the United States as a defendant herein. Dated: November 12, 2002
Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney RICHARD G. LEPLEY, D.C. Bar 332346 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Counsel Attorneys, Department of Justice Civil Division, Room 986 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8202 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS
17

 
 Case 1:02-cv-00864-JR Document 68 Filed 05/09/2006 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

PLAINTIFF’S SUPPLEMENTAL MEMORANDUM

During oral argument, counsel for Plaintiff stated that Defendant would be

obligated to pay for external devices which could be used by the blind in denominating

banknotes. The Court requested a supplemental memorandum from Plaintiff supporting

this statement.

The Treasury Department regulations implementing Section 504 require the

agency to “…furnish appropriate auxiliary aids where necessary to afford an individual

with handicaps an equal opportunity to participate in, and enjoy the benefits of, a

program or activity conducted by the agency.” See 31 C.F.R. §17.160(a)(1). The term

“auxiliary aids” is defined as devices which provide the disabled with “equal opportunity

to participate in, and enjoy the benefits of, programs or activities conducted by the

agency.” 31 C.F.R. §17.103(c). The regulations state that auxiliary aids for individuals

with visual disabilities include such items as “readers, Brailed materials, audio

recordings and other similar services and devices.” Id.

The Department of Treasury provided a section-by-section analysis of these

regulations upon their promulgation on August 16, 1991. This analysis states as follows:

Case 1:02-cv-00864-JR Document 68 Filed 05/09/2006 Page 2 of 6
“Unless not required by § 17.160(d), the agency shall provide auxiliary aids at no cost to the individual with handicaps.” Emphasis added. See 56 FR 40781, August 16, 1991, Analysis of Section 17.160. The Department’s analysis further notes that the “items listed at § 17.103(c) are intended as examples and are not to be treated as an exhaustive list.” See 56 FR 40781, August 16, 1991, Analysis of Section 17.103.
Under Executive Order 12250, the Department of Justice has primary responsibility for the coordination and approval of regulations implementing Section 504. See 45 FR 72995, Nov. 4, 1980. The Department of Treasury regulations were merely an adaptation of the regulations prepared by the Department of Justice under Executive Order 12250. See 56 FR 40781, August 16, 1991 (Background Statement). The Department of Justice regulations also provide that auxiliary aids must be furnished at no costs to disabled individuals, unless doing so would result in an undue burden or fundamental alteration. See 49 FR 35724, September 11, 1984, Analysis of Section 39.160 (“Unless not required by §39.160(d), the agency shall provide auxiliary aids at no cost to the handicapped person.” See also United States v. Board of Trustees for University of Alabama, 908 F.2d 740, 745 (11th Cir. 1990) (upholding HEW’s interpretation of Rehabilitation Act regulations as precluding consideration of financial means in determining whether disabled person entitled to auxiliary aids).
Both the Department of Justice and the Department of Treasury regulations contain the following provision: “The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.” See 28 C.F.R § 39.160(a)(1)(ii); 31 C.F.R. §17.160(a)(1)(ii). The section-by-section analysis
2

Case 1:02-cv-00864-JR Document 68 Filed 05/09/2006 Page 3 of 6
accompanying the Department of Justice regulations contained the following discussion of this exclusion:
“Moreover, the agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature (§ 39.160(a)(1)(ii)). For example, the agency need not provide eye glasses or hearing aids to applicants or participants in its programs. Similarly, the regulation does not require the agency to provide wheelchairs to persons with mobility impairments…..For example, a federally operated library would have to ensure effective communication between its librarian and a patron, but not between the patron and a friend who had accompanied him or her to the library.” See 49 FR 35724, September 11, 1984, Analysis of Section 39.160.
There is information in the record pertaining to two separate portable devices, which may be used by the blind to denominate currency. In August 2004, the BEP issued Request for Quotations (“RFQ”) 04-0687 to industry seeking the development of a pocket sized device with a target retail price of $35 or less, which could be used to denominate U.S. currency. See Exhibit P-13, RFQ Specifications (Docket #35). The working prototype was required to be delivered to the Bureau not later than September 30, 2005. See Declaration of Thomas Ferguson, August 30, 2005, Para 15, Docket #33. The record also contains information pertaining to the Note Teller 2 device, manufactured by Brytech, Inc. See Exhibit P-11, Description of Note Teller 2 (Docket #35).
Plaintiff respectfully submits that there is a fundamental difference between portable currency denomination devices, and eyeglasses or hearing aids. Eyeglasses or hearing aids may be used for both program and non-program related activities. For example, eyeglasses may be used for the purpose of seeing a movie, as well as for the purpose of reading a banknote. Similarly, hearing aids may be used for the purpose of communicating in a social occasion, as well as for federal program related
3

Case 1:02-cv-00864-JR Document 68 Filed 05/09/2006 Page 4 of 6
communications. Accordingly, eyeglasses and hearing aids are items of a personal nature, which the agency has no obligation to provide.
On the other hand, both the Note Teller 2 and the recently developed prototype unit may be used solely for the purpose of reading banknotes. The Note Teller 2 measures approximately 6 x 3 x 1 inches. See Exhibit P-11, Declaration of Ms. Julia Wilson, Para. 2, (Docket #35). The prototype unit measures 75mm x 75mm x 15mm, which is approximately 3 x 3 x .59 inches. See Exhibit P-13, RFQ Specifications (Docket #35). Based on the programming and the dimensions of these devices, they simply cannot be used for the purpose of reading any other type of paper, such as utility bills, bank statements, etc. Accordingly, neither the Note Teller 2 nor the prototype unit would fall within the exclusion for devices of a personal nature.
Defendant may also assert that furnishing these devices would constitute an undue burden. See 28 C.F.R § 39.160(d); 31 C.F.R. §17.160(d). Resolution of this issue would largely depend upon the scope of any order to be issued by this Court.
Obviously, there would be no undue burden if the Court were to limit its order to furnishing devices only to the two individual Plaintiffs in this action. Defendant has no plausible argument that furnishing two such devices would constitute an undue burden. However, a different issue arises if the Court were to extend any such order to encompass other legally blind persons. Legal blindness for social security disability purposes is defined as having corrected visual acuity no better than 20/200 in the better seeing eye. See 42 U.S.C. § 416(i)(1)(B); 20 C.F.R. § 404.1581.
Plaintiff’s Rule 7.1 Statement of Material Facts Not in Dispute contained the following undisputed allegations:
4

Case 1:02-cv-00864-JR Document 68 Filed 05/09/2006 Page 5 of 6
33. There are 937,000 legally blind adults 40 years and older in the United States, of whom 648,000 are over the age of 80. See Exhibit P-37, NIH Statistics on Visual Impairments. In the highly improbable event that each of these individuals requested a device, the total cost to the U.S. government would be approximately $33 million (assuming a unit cost of $35). More likely, only a fraction of the blind would request the device.
34. The likelihood of achieving the target retail price of $35 or less for the note teller being developed with federal funds would be significantly enhanced if the government purchased a significant quantity, thereby resulting in economies of scale. Other governments provide such devices to their visually disabled citizens at no charge. See Exhibit P-20, Bank of Canada, Description of Accessibility Features.
See Docket # 35. Both of these allegations were admitted by Defendant. See
Defendant’s Response to Plaintiff’s Rule 7.1 Statement of Material Facts Not in Dispute,
Docket # 43.
Plaintiff respectfully asserts that costs in the range of $33 million would not
constitute an undue burden. This is less than the estimated costs of putting a single tactile
feature on all denominations, which range from $45 million to $75 million in initial costs, depending on the feature selected, and from $8 million to $15 million in additional annual costs.1 See Exhibits P-26 – P-28. See also Pl. Mem. at 31-35, Docket # 35; Pl.
Mem. 15-17, Docket # 67. These costs are substantially less than the $245 million to
$320 million in initial costs, and $143 million to $174 million in increased annual costs,
which would be required to change the size of currency. See Exhibit P-21, Declaration of
Thomas Ferguson, August 28, 2002, Para. 52 (Docket #35).
The amended complaint did not seek an order requiring Defendant to furnish
external devices to visually disabled individuals. These devices tend to be unreliable, and
1 Defendant has not contended that initial costs in the $45 million to $75 million range, and increased annual costs in the $8 million to $15 million range, are unduly burdensome.
5

Case 1:02-cv-00864-JR Document 68 Filed 05/09/2006 Page 6 of 6
are relatively slow. See Pl. Motion for Leave to Amend Complaint, Docket #47. See also Exhibit P-2, NAS Study, pp. 24-25 (Docket #35). However, Plaintiff respectfully asserts that Defendant would be financially obligated to furnish portable electronic currency readers to disabled individuals, if a reliable version of such a device existed.
Lastly, Plaintiff wishes to bring to the attention of the court the case of Redd v. Rubin, 34 F. Supp. 2d 1, (D.D.C. 1998), remanded by Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000). This case involved alleged discrimination against a tour guide at the BEP facility in Washington D.C., where she was working as a contractor employee. Redd, who is 5'7" tall and weighed approximately 348 pounds, alleged that the Bureau ordered her dismissal by her employer, Aspen Personnel Services. Citing to the Department of Treasury regulations implementing Section 504, Redd alleged that the BEP engaged in discriminatory administrative methods, as opposed to discriminatory employment practices. While the issue of sovereign immunity was not discussed, the Court of Appeals specifically allowed her non-employment claim under Section 504 to proceed against the BEP. See Redd v. Summers, 232 F.3d at 941; See also Redd v. Rubin, 34 F. Supp. 2d. at 8 (noting that Lane v. Pena bars recovery of monetary damages, but nonetheless allowing Redd’s Section 504 claim for equitable relief to proceed).
Respectfully submitted,
___/s/_______________ JEFFREY A. LOVITKY D.C. Bar No. 404834 1735 New York Ave., NW, Ste. 500 Washington, DC 20006 (202) 429-3393 Attorney for Plaintiffs
6

 
 Case 1:02-cv-00864-JR Document 69 Filed 05/15/2006 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al., )

)

Plaintiffs,

)

)

v.

)

)

JOHN W. SNOW, Secretary of the Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

RESPONSE TO PLAINTIFFS' SUPPLEMENTAL MEMORANDUM 1. The regulation cited by the plaintiffs (docket #68) does not compel the Secretary of the Treasury to provide a currency reader to all blind and visually-impaired persons in the United States, for at least the following reasons:
a. The regulation referred to is part of a set of generic regulations enacted word-forword by literally dozens of federal agencies; indeed, the precise language about "auxiliary aids" on which plaintiffs rely is found in the regulations of numerous other federal agencies. Compare 31 C.F.R. § 17.160(a)(1) (Department of the Treasury) with, e.g., 3 C.F.R. § 102.160(a)(1) (Executive Office of the President); 5 C.F.R. § 1207.160(a)(1) (MSPB); 5 C.F.R. § 2416.160(a)(1) (FLRA); 7 C.F.R. § 15e.160(a)(1) (USDA); 14 C.F.R. § 1251.560(a)(1) (NASA); 15 C.F.R. § 8c.60(a)(1) (Department of Commerce); 24 C.F.R. § 9.160(a)(1) (HUD); 32 C.F.R. § 1906.160(a)(1) (CIA); 36 C.F.R. § 1208.160(a)(1) (NARA); 38 C.F.R. § 15.160(a)(1) (VA); 43 C.F.R. § 17.560(a)(1) (Department of the Interior); 49 C.F.R.

Case 1:02-cv-00864-JR Document 69 Filed 05/15/2006 Page 2 of 5
§ 28.160(a)(1) (Department of Transportation).1 This regulation was not, therefore, crafted in light of the unique responsibilities of the Bureau of Engraving and Printing.
b. Perhaps most significantly, the regulation's heading reads "Communications," and its opening language says, "The agency shall take appropriate steps to effectively communicate with applicants, participants, personnel of other Federal entities, and members of the public." 31 C.F.R. § 17.160(a). The regulation further reiterates that the agency shall use "telecommunication devices for deaf persons" where it chooses to "communicate[ ] with applicants and beneficiaries by telephone." Id. § 17.160(a)(2). The section-by-section analysis of the regulation in the Federal Register also reflects that focus. See 56 Fed. Reg. 40,781, 40,787 (Aug. 16, 1991) ("Section 17.160 requires that the agency take appropriate steps to effectively communicate with personnel of other Federal entities, applicants, participants, and members of the public."). Effective "communication" with a handicapped person is, therefore, the apparent purpose of this regulation, and the purpose of providing "auxiliary aids where necessary." The provision of a currency reader could not, by any stretch of the imagination, be characterized as furthering "effective[ ] communication" by the agency with the public.
c. The regulation speaks of assisting "an individual with handicaps," and calls for the agency to "give primary consideration to the requests of the individual with handicaps" in determining what type of aid is needed. 31 C.F.R. § 17.160(a)(1), (a)(1)(i). Thus, the regulation apparently contemplates providing assistance on an individual, case-by-case basis, and should
1 Even the preamble to the Treasury regulations is nearly identical to the preambles of many other agency regulations. Compare 56 Fed. Reg. 40,781 (Aug. 16, 1991) with 51 Fed. Reg. 4566 (Feb. 5, 1986) (various agencies); 52 Fed. Reg. 16,374 (May 5, 1987) (Architectural and Transportation Barriers Compliance Board); 52 Fed. Reg. 25,124 (July 2, 1987) (various agencies); 52 Fed. Reg. 45,619 (Dec. 1, 1987) (FTC).
2

Case 1:02-cv-00864-JR Document 69 Filed 05/15/2006 Page 3 of 5
not be read as requiring the Secretary of the Treasury to provide a device, en masse, to any of the approximately 1,000,000 blind persons in the United States who could request it, or to any of the multiple millions of other visually-impaired persons.
d. A currency reader would constitute a "reader[ ] for personal use," which the regulation does not require. Id. § 17.160(a)(1)(ii). This exclusion reflects the purpose of the regulation, as stated in the section heading: the Secretary may need to provide an auxiliary aid for a person with handicaps to receive "communications" from the Secretary, for temporary use at the time of the communication, but he need not provide devices for "personal use," to become the recipient's exclusive possession.
e. Requiring the Secretary to provide "auxiliary aids" for the denomination of currency by the visually impaired would impose "undue financial and administrative burdens." See id. § 17.160(d). Plaintiffs' estimate of the cost of providing currency readers assumes (1) that only blind persons, and not other visually-impaired persons, would be able to request them, and (2) that the Secretary's effort to foster the development of a reader at a cost of $35 apiece will be successful. The Secretary's overall financial burden would be substantially greater if visuallyimpaired persons were permitted to request a reader, or if the ultimate commercial price of the new reader turns out to be higher. Additionally, plaintiffs' argument ignores the "administrative burdens" of carrying out a program to acquire and distribute free currency readers. The Secretary would be required, among other things, to verify the eligibility of each recipient (presumably
3

Case 1:02-cv-00864-JR Document 69 Filed 05/15/2006 Page 4 of 5
through the examination of medical records), and to ensure, by maintaining a database of recipients, that no requestor had already received a reader.2
2. Besides addressing the regulation as directed by the Court, plaintiffs submit additional argument regarding the sovereign immunity issue raised in defendant's dispositive motion. The case they cite, Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000), does not, however, stand for the proposition that the United States has waived sovereign immunity for claims of the kind made here. First, as plaintiffs acknowledge, waiver of sovereign immunity for injunctive and declaratory relief under Section 504 was not raised or addressed in Redd.3 The government may not waive jurisdictional defects, and the fact that a court addressed the merits of a case without considering jurisdictional issues does not mean that the court had jurisdiction; nor does it confer jurisdiction on lower courts in any similar cases. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 119 & n.29 (1984) ("[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.") (quoting Hagans v. Lavine, 415 U.S. 528, 533, n.5 (1974)); Zambrano v. Reinert, 291 F.3d 964, 975 (7th Cir. 2002) ("Jurisdictional questions lurking in the record, but unmentioned by a court, remain open to decision."). Second, the plaintiff in Redd was obviously challenging a "discrete agency action" — the decision to ask
2 Even if this regulation could somehow be seen as applying here, plaintiffs do not allege that they have made the specific requests contemplated by the regulation, so that the Court would lack jurisdiction to consider any claim thereunder because of plaintiffs' failure to exhaust administrative remedies.
3 Sovereign immunity was mentioned in an earlier opinion by the district court, Redd v. Rubin, 34 F. Supp. 2d 1 (D.D.C. 1998), but not in relation to the waiver of sovereign immunity for injunctive or declaratory relief under Section 504. Id. at 4, 8. That opinion was not, incidentally, the one under appeal in the D.C. Cir. decision cited above.
4

Case 1:02-cv-00864-JR Document 69 Filed 05/15/2006 Page 5 of 5
her employer to dismiss her — rather than an entire program, as plaintiffs seek to do here. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). Thus, the Redd decisions do not help the plaintiffs' case here.
Dated: May 15, 2006 Respectfully submitted, PETER D. KEISLER Assistant Attorney General ROSCOE C. HOWARD, JR. United States Attorney STUART A. LICHT, N.Y. Bar 1237643 Assistant Director
W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT
5

 
 Case 1:02-cv-00864-JR Document 101 Filed 12/11/08 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et aI., )

)

Plaintiffs,

)

)

v.

)

)

HENRY M. PAULSON, JR., Secretary of the

)

Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO.
FILED 1:02CV00864 JR
DEC 1 1 2008
NANCY MAYER WHITTINGTON, CLERK U.S. DISTRICT COURT

STIPULATION OF COMPROMISE AND SETTLEMENT OF PLAINTIFFS' CLAIM FOR ATTORNEY FEES AND COSTS
AND PROPOSED ORDER THEREON

WHEREAS, the Court entered an Order and Judgment in this case on October 3,

2008 [96];

WHEREAS, plaintiffs filed a Motion for Attorney Fees and Costs on December 1,

2008 [99];

WHEREAS, defendants deny that plaintiffs are entitled to the attorney fees, costs, and

expenses sought on the grounds argued in Plaintiffs' Motion for Attorney Fees;

AND WHEREAS, to avoid the time and expense of further litigation, the parties have

reached an agreement to compromise and settle plaintiffs' claim for attorney fees, costs, and

expenses;

ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED by and between the

parties, through their undersigned counsel, as follows, on this 10th day of December, 2008:

1. The defendant shall pay to the plaintiffs fees, costs, and expenses in the amount of

$672,675.00 in full and final settlement of any and all claims of the plaintiffs for attorney fees,

costs, and expenses in this action, pursuant to any statute or any other basis, for services

Case 1:02-cv-00864-JR Document 101 Filed 12/11/08 Page 2 of 3
perfonned or costs and expenses incurred in connection with this action on or before the date of this Stipulation.
2. Plaintiffs' Motion for Attorney Fees and Costs (docket #99) is hereby withdrawn as moot.
3. The provision of attorney fees, costs, and expenses pursuant to this Stipulation and Order is by agreement of the parties and is not a finding that the defendant is liable as a matter of law for the payment of any attorney fees, costs, or expenses.
4. Payment of the amount stated in paragraph I above shall constitute full satisfaction of any and all obligations of the United States and each of its agencies and officials for attorney fees, costs, and expenses under 28 U.S.C. § 2412, 29 U.S.C. § 794a, or any other provision of law, which attorney fees, costs, or expenses were incurred by plaintiffs in connection with this litigation at any time on and before the date ofthis Stipulation. The plaintiffs and each of them hereby release and forever discharge the defendant and his successors, the United States of America, and any department, agency, or establishment of the United States, and any officers, employees, agents, successors, or assigns of such department, agency, or establishment, from any additional liability for attorney fees, costs, or expenses in connection with this case - for work perfonned or costs or expenses incurred on and before the date of this Stipulation.
5. The defendant shall pay the amount stated in paragraph 1 above by wire transfer to an account at a fmancial institution designated in writing by counsel for the plaintiffs, consistent with the nonnal processing procedures followed by the United States Department of Justice and the United States Department of the Treasury. Plaintiffs' counsel shall provide defendant's counsel the bank routing and account infonnation for the account to receive such payment. After
2

Case 1:02-cv-00864-JR Document 101 Filed 12/11/08 Page 3 of 3

the Court's entry of its Order hereon, defendant's counsel shall promptly prepare and submit all

required documentation to the United States Department of the Treasury for processing of the

payment set forth above.

Respectfully submitted,

GREGORYG. KATSAS Assistant Attorney General

JEFFREY A. TAYLOR United States Attorney

JEFFREY A. LOVITKY, D.C. Bar 404834

JOSEPH W. LOBUE, D.C. Bar 293514 Assistant Director Federal Programs Branch

Attorney at Law 1776 K Street, N.W. Suite 800 Washil1gton, D.C. 20006 Telephone: (202) 429-3393 Facsimile: (202) 318-4013 E-mail: lovitky@aol.com
COUNSEL FOR PLAINTIFFS

N, Va. Bar 27487 Senior Trial Counsel
Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov

COUNSEL FOR DEFENDANT

IT IS SO ORDERED.
. DATED this Jl "- day of DtCt..M.c. hv'

,2008.

BY THE COURT:
--'}~~ , JAMES ROBERTSON UNITED STATES DISTRICT JUDGE
3

 
 Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, :

et al.,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 02-0864 (JR)

:

Henry M. Paulson, Jr., Secretary :

of the Treasury

:

:

Defendant.

MEMORANDUM ORDER (AMENDED)

American Council of the Blind is a national advocacy

group for the visually impaired. In this suit, the Council and a

number of blind and visually impaired individuals allege that the

Department of Treasury violates section 504 of the Rehabilitation

Act, 29 U.S.C. § 794, by its repeated and continuing failures to

design and issue paper currency that is readily distinguishable

to blind and visually impaired people. The Council’s amended

complaint seeks a declaratory judgment to that effect and an

order mandating the creation and implementation of a corrective

action plan. I denied earlier defense motions for summary

judgment [#8] and to dismiss [#15], 311 F. Supp. 2d. 86 (D.D.C.

2004). After a period of discovery, the Secretary has renewed

his motion to dismiss or for summary judgment [#33], and

plaintiffs have moved for summary judgment [#35].1

1The Secretary’s motion asks me to dismiss or strike two of the plaintiffs’ prayers for relief: the inclusion of specific features in a redesign of the currency, and a redesign of the $1 bill. Plaintiffs amended

Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 2 of 26
Background
Some 937,000 Americans are legally blind, meaning that the visual acuity of the better-seeing eye, when corrected, is no better than 20/200. An additional 2,361,000 Americans are considered “low vision” - the better-seeing eye, when corrected, is no better than 20/40. National Eye Institute Statistics, [#35-46, at 2]. Individuals with low vision are unable, among other things, to read the regular print on a newspaper. National Academy of Sciences, Currency Features for Visually Impaired People, [#35-5, at 14] (“NAS Study”).
Most people with low vision, and all blind people, are incapable of looking at American currency and distinguishing one denomination from another. In order to know whether the bill in her hand is worth five dollars or fifty, a blind person must ask someone else for help or use a machine that can identify the denomination and speak it out loud. Plaintiff Patrick Sheehan, who has no right eye vision and left eye vision of 20/450, is capable of distinguishing between banknotes in ideal lighting conditions. Usually, however, he identifies bills using a closed circuit television system that magnifies them. Plaintiff Otis Stephens is legally blind, as is Melanie Brunson, the Council’s
their complaint after the government’s motion and no longer seek such relief. Those aspects of the government’s motion are accordingly moot.
- 2 -

Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 3 of 26
Rule 30(b)(6) designee. They rely on sighted people to identify paper money for them.
Visually impaired Americans have developed a variety of methods for keeping track of the value of their paper money after their bills have been properly identified for them. Ms. Brunson folds her currency into different shapes: she keeps $1 bills straight; she folds $5 bills in half left-to-right, $10 bills in half top-to-bottom, and $20 bills in quarters. Dep. of Melanie Brunson, [#33-2, at 32]. Other blind individuals keep different denominations in separate parts or pockets of their wallets or purses.
There is no authoritative data on the frequency with which the visually impaired use paper money. Dr. Stephens estimates that, over a two-month period, he makes approximately 145 purchases, of which roughly half are made using paper currency. Dep. of Otis Stephens, [#33-3, at 107]. Mr. Sheehen uses currency with similar frequency. Dep. of Patrick Sheehen, [#33-4, at 96]. Ms. Brunson, however, makes purchases using currency only about ten times a month. Dep. of Melanie Brunson at 60. When they do make purchases, Dr. Stephens and Ms. Brunson usually select bills that they have folded and ask the cashier for verbal confirmation of the denomination before paying. When receiving change after a transaction, Dr. Stephens asks the cashier to verbally identify each bill, so that he can fold it
- 3 -

Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 4 of 26
properly. Dep. of Otis Stephens at 85. Similarly, Ms. Brunson asks cashiers to “separate the bills for me and give me the bills one at a time so that I can fold them.” Dep. of Melanie Brunson at 54.
Unable to identify the value of paper money without help from others, blind and low vision individuals are always at risk of being cheated. The frequency of such acts against blind and low vision individuals is impossible to measure, because victims may not know that they have been deceived unless someone tells them. Ms. Brunson, Dr. Stephens, and Mr. Sheehan could recall only a few instances when they learned that they had been defrauded.2 It is reasonable to assume, however, that deliberate fraud or accidental shortchanging may go unnoticed for some time, and that some instances may never be noticed. Currency in Other Countries
Of the more than 180 countries that issue paper currency,3 only the United States prints bills that are identical in size and color in all their denominations. NAS Study at 9, 101. More than 100 of the other issuers vary their bills in size
2For example, Ms. Brunson recalled one occasion in which a store clerk informed her she was being given a $20 bill. She later learned, when attempting to make another purchase, that this bill was actually worth only $5. Dep. of Melanie Brunson at 56-57.
3Not all issuers of currency are independent sovereign countries. For example, Northern Ireland, England, and Scotland all issue banknotes that are exchangeable throughout the United Kingdom. NAS Study at 104.
- 4 -

Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 5 of 26
according to denomination, and every other issuer includes at least some features that help the visually impaired. See generally, NAS Study at 101-12.
The Euro varies in size based on denomination: the greater the value of the note, the greater the length. The i5, i10, i20, i50, and i100 notes also vary in height. Euro Vision, Understanding Euro Notes and Coins, a Guide for People with Poor Vision, [#35-26, at 5]. Euros also possess tactile features: each bill includes a large, raised numeral designed to be perceptible to touch, at least when the banknotes are new, id. at 4, and a foil feature that can be identified by touch; the foil feature on the smaller notes – i5, i10, i20 – is of a different shape and in a different location than those on the larger ones. Id. at 6.
The Swiss Franc contains intaglio digits and a perforated numeral that can be identified by touch. Copy of Swiss Bank Note, [#35-41]. Japan, in a new design for the Yen, has incorporated a tactile feature in the ¥10,000, ¥5,000 and ¥1,000 notes, different for each note, that has a rougher texture than the rest of the bill. Security Features of the New Bank of Japan Notes, [#35-40].
The Canadian Dollar also contains tactile features. On the upper right corner on the face of each bill is a series of raised symbols separated by a smooth surface, which differ
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according to denomination. The $5 note has one raised symbol, the $10 note has two such symbols, and so forth. The Bank of Canada also provides (free to blind and low vision individuals) an electronic hand-held note reader. Bank of Canada, Accessibility Features, [#35-28].
Australia’s dollars differ in color and size. English Pound notes vary in color and size and contain tactile symbols. Chinese currency differs in color and possesses a tactile symbol, as does the currency in Argentina and Israel. Saudi Arabia’s currency varies in color and size. NAS Study at 106-112. U.S. Currency
The Secretary’s statutory responsibility for the design and production of U.S. currency, 12 U.S.C § 418, has been delegated to the Bureau of Engraving and Printing (BEP). The BEP is not financed by appropriations from Congress, but by a revolving fund that is replenished by the sale of its products currency and postage stamps - to other federal entities. In 2004, the BEP earned revenues of $525 million on the sale of 8.8 billion currency notes to the Federal Reserve and 6.1 billion postage stamps to the U.S. Postal Service. Bureau of Engraving and Printing, Chief Financial Officer Performance and Accountability Report (2004), [#35-42, at iii].
Most production of new currency is to replace worn out bills. Decl. of Thomas Ferguson, (August 28, 2002) [#8-2, at
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¶ 15]. The Federal Reserve withdraws tens of millions of bank notes from circulation each day: if a banknote is deemed unfit for recirculation, or if its denomination or authenticity cannot be verified, it is destroyed. The useful life of bills varies by denomination. The average life for the $1 bill is twenty-one months, whereas the $100 note lasts some eighty-nine months. Frequently Asked Questions, Federal Reserve Board, [#35-44]. Approximately half of all BEP production is of $1 bills. Dec. of Thomas Ferguson [#8-2, at ¶ 5].
On several occasions, the House of Representatives has expressed interest in changing U.S. currency to accommodate the visually impaired. Congressman Pete Stark introduced bills in 1979, 1981, and 1983 that would have required currency to be “printed in a manner which enables an individual who is blind to determine the denomination of each such note.” H.R. 6027, 96th Cong. (1979); H.R. 3656, 97th Cong. (1981); H.R. 2666, 98th Cong. (1983). In 1991, Congressman Joseph P. Kolter introduced a bill that would have required the Federal Reserve System to “develop a design for Federal Reserve notes in the denominations of $5, $10, $20, $50, and $100, and a method for producing such notes, that includes the designation of the denomination in braille on the face of the notes.” H.R. 2160, 102nd Cong. (1991). In 1997, finding that “electronic means of bill identification will always be more fallible than purely tactile means,” the House of
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Representatives “strongly encourage[d] the Secretary of the Treasury and the Bureau of Engraving and Printing to incorporate cost-effective, tactile features into the design changes, thereby including the blind and visually impaired community in independent currency usage.” H.R. Res. 122, 105th Cong. (1997).
In 1983, at the request of Congressman Edward R. Roybal, chairman of the House Select Committee on Aging, the BEP conducted a formal study of this issue. A Study of Mechanisms for the Denomination of Currency by the Blind or Visually Impaired, (Aug. 24, 1983), [#35-4] (“1983 Study”). That study found that “the most widely useful currency design change would be to produce [notes] in a different size for each denomination,” but that “the effects of such a change on broad and diverse segments of the population would be monumental.” Id. at 6.4 The study also found that “almost as broad a segment of the sight impaired population would benefit from use of an electronic device to audibly denominate bank notes as from sized currency,” and that given the greater cost of sizing currency, electronic currency readers should be developed to assist the visually impaired. Id. at 16.
Electronic note readers are available, but many models are considered slow, unreliable and expensive. NAS Study at 25.
4This finding of “monumental” effect, repeated verbatim at 17, is unquantified and unexplained.
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The government asserts that one such device, the Note Teller 2, is effective. The Note Teller 2 is approximately six inches long, three inches wide and one inch high, weighing approximately seven ounces. Decl. of Julia Wilson [#33-6, at ¶ 2]. Users insert bills into the machine and after approximately two seconds, a human voice, says either a number - “one,” “five,” ten,” etc., or “cannot read.” Id. at ¶ 4. The Note Teller 2 retails for $270. Id. at ¶ 8. In May 2004, the BEP solicited proposals for the development of a pocket-size currency reader that could be mass produced at a target retail price of $35 or less. In September 2004, BEP awarded $50,000 to Mnemonics, Inc. to develop these currency readers. Def.’s Resp. to Interrog. 13. Mnemonics has committed to begin marketing the device within three years after BEP accepts the prototype. A prototype was due from Mnemonics on September 30, 2005. Supp. Decl. of Thomas Ferguson, (Aug. 30, 2005) [#33-7, at ¶ 15]. The record does not reveal whether this prototype was delivered by the deadline or whether it has been accepted by the BEP.
In 1995, the National Academy of Sciences issued a comprehensive report entitled “Currency Features for Visually Impaired People.” One of the study’s findings was:
An important aspect of a person's full participation in today's society is being able to conveniently and confidentially exchange currency in everyday transactions, as when using public transportation or making purchases. U.S. citizens with low vision experience a uniquely difficult task in that U.S.
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banknotes are remarkably uniform in size, color, and general design. The banknotes provide no basis for denominating by blind persons. NAS Study at 1. The study recommended three features that could be incorporated into U.S. banknotes without significant further research: (1) changing the size of banknotes to correspond with denomination; (2) increasing the size and contrast of a banknote’s numerals; and (3) varying banknote color according to denomination. Id. at 4. The report further recommended that the BEP undertake “high priority” research to determine “optimum dimensions, optical contrast, location, colors, physical size” to implement these changes. Id. at 65. Major changes were made to U.S. currency in 1996 and 2004 – for the first time since 1929. Coming as they did after the House bills and the BEP and NAS studies, the 1996 redesign and the 2004 redesign presented “an opportunity to introduce features into the design that will make U.S. banknotes more readily usable by visually disabled people.” NAS Study at 2. The 1996 redesign did add two features intended to accommodate the visually impaired: a single larger numeral, placed on one side of the banknote at slightly less than twenty percent of the height of the banknote, to “facilitate recognition by persons with low vision,” and an infrared feature, to “facilitate the development of a new hand-held currency reader for the blind.” Supp. Decl. of Thomas Ferguson, (Aug. 30, 2005)
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Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 11 of 26
[#33-7, at ¶ 4]. The changes fell well short of the NAS recommendations, however; the NAS report had recommended a denomination numeral forty to sixty percent of banknote height, printed on both sides, with either white ink on a black background or black ink on a white background. NAS Study at 46. As far as the BEP was concerned, the primary purpose of the redesigns was to make American currency less susceptible to counterfeiting. Mot. Hr’g Tr. (May 4, 2006) at 25.5
The 1996 redesign cost the BEP approximately $34 million, of which $26 million was devoted to funding a public education campaign.6 The redesign further increased annual costs by $31 million. Supp. Dec. of Thomas Ferguson (Aug. 30, 2005)[#33-7, at ¶ 5]. The total initial cost for the 2004 redesign was $113,037,205. This included approximately $38 million for the purchase of six new presses and $50 million for a
5The 1996 redesign introduced several new security features, including watermark portraits, an embedded security thread, micro-printed words, and color shifting ink. Supp. Decl. Of Thomas Ferguson, (Aug. 30, 2005) [#33-7, at ¶ 4]. The 2004 redesign added small yellow denomination numerals on the back of each note, a more complex design and additional background colors to the $10, $20, $50, and $100 bills. Id. at ¶ 6.
6The total costs of the 1996 redesign also included $1.5 million for research, consultation and design, $4.5 million on engraving and manufacturing new printing plants, $1.1 million on inspection equipment, $200,000 for inhouse contracts and $90,000 on site preparation.
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public education campaign.7 In addition, the 2004 redesign required over $25 million in increased annual costs. Id. at ¶ 7.
Jurisdiction
In its renewed motion to dismiss, the government interposes a sovereign immunity defense for the first time, invoking Lane v. Pena, 518 U.S. 187 (1996), in which the Supreme Court found that the United States had not waived sovereign immunity in a suit alleging a violation of § 504(a) of the Rehabilitation Act. That is the code section upon which these plaintiffs rely. It provides, in relevant part:
No otherwise qualified individual with a disability in the United States, as defined in section 706 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity8 receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794. Lane brought suit after he was discharged from the U.S. Merchant Marine Academy for having diabetes. The district court granted summary judgment and ordered him reinstated as a cadet, but it refused to award compensatory
7The total cost of the 2004 redesign also included $6.1 million for site preparation, $13.1 million for research, consultation and design, and $5 million to manufacture new printing plates.
8It appears to be undisputed, despite the awkward “fit” of the language, that the design, production and issuance of currency is a “program or activity” under the Rehabilitation Act. See Def.’s Renewed Mot. [#33, at 7, n.5]; Mem. Op. [#19, at 4, n.1].
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damages, finding that the government had not waived sovereign immunity for damages claims. Lane appealed, arguing that sovereign immunity had been waived by § 505(a)(2) of the Act, which provides: “The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance.” He argued that, because § 505(a)(2) incorporates “the remedies, procedures and rights” of Title VI, and because Title VI allows suits for monetary damages, the United States had waived its sovereign immunity. The Supreme Court disagreed, finding that § 505(a)(2) contained an “unequivocally expressed” waiver of sovereign immunity only for violations by “any recipient of Federal assistance or Federal provider of such assistance.” Section 505(a)(2) does not waive sovereign immunity, the Court found, for the much broader group of violations occurring “under any program or activity” authorized in § 504(a).
The present case, like Lane, is based on the “program or activity” language of the Rehabilitation Act, but the government’s reliance on Lane misses the mark. These plaintiffs seek only injunctive relief. Injunctive relief was awarded by the district court in Lane, was not challenged by the government, and was not disturbed by the Supreme Court. Lane v. Pena, 518
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U.S. 187, 190 (1996). The Court’s reasoning in Lane indeed supports the view that injunctive relief is available against the sovereign under this provision. To explain its holding that sovereign immunity was not waived in § 505(a)(2) of the Rehabilitation Act, the Court contrasted that provision with § 505(b), which contains a “clear waiver” of sovereign immunity for claims of attorney’s fees. As plaintiffs point out, there would be no purpose in crafting a provision allowing attorney fees unless the statute contemplates awards of declaratory and injunctive relief.
Analysis
In Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 (1979), and Alexander v. Choate, 469 U.S. 287 (1985), the Supreme Court identified two countervailing concerns that are to inform a court’s interpretation of § 504 of the Rehabilitation Act: “(1) effectuation of the statute's objectives of assisting the handicapped; and (2) the need to impose reasonable boundaries in accomplishing this purpose.” Three Rivers Center for Independent Living v. Housing Authority of City, 382 F.3d 412, 427 (3d Cir. 2004)(citing Choate, 469 U.S. at 299). The Court struck a balance between these two considerations by requiring that individuals have “meaningful access” to the benefits of programs or activities provided by grantees of federal assistance. Choate, 469 U.S. at 300. Plaintiffs are not entitled, however,
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Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 15 of 26
to perfect access, or to remedies “specially tailored” for their circumstances. Id. at 303. Even where plaintiffs do not have meaningful access, moreover, the Rehabilitation Act entitles them only to such accommodations as are “reasonable.” Id. at 301. Accommodations are not reasonable if they would entail either “undue financial and administrative burdens” or a “fundamental alteration in the nature of a program.” Davis, 442 U.S. at 410, 412. The cross-motions for summary judgment in this case address the two core issues that the Davis and Choate cases present, namely, (1) whether blind and visually impaired plaintiffs have “meaningful access” to U.S. currency, and (2) if not, whether the acts necessary to achieve meaningful access would impose an “undue burden” on the government. Meaningful Access
The question of what is “meaningful access” in a specific case is ultimately one of law, but the legal precedents available to the parties and to the court are unhelpful because they are so few, and so fact-bound. In Jones v. City of Monroe, 341 F.3d 474 (6th Cir. 2003), a municipal parking lot provided free all-day parking, but the lot was two blocks from plaintiff’s office. Plaintiff, who had multiple sclerosis and used a wheelchair, sued under the Rehabilitation Act for a free parking space adjacent to her office building. The Sixth Circuit rejected her claim that she had been denied meaningful access to
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the benefits of free parking. Reasoning that “equal results from the provision of the benefit. . . are not guaranteed,” id. at 479 (quoting Choate, 469 U.S. at 305), the court found that the plaintiff had “access to the service offered by Monroe - free downtown parking in specific locations. She does not have a right to free downtown parking that allows her access to her destination of choice.” City of Monroe, 341 F.3d at 479. In United States v. Board of Trustees for University of Alabama, 908 F.2d 740 (11th Cir. 1990), federal regulations requiring the provision of sign-language interpreters for the hearing impaired were upheld, because, “in the case of a deaf student . . . all access to the benefit of some courses is eliminated when no signlanguage interpreter is present.” Id. at 748. Citing Davis, the Eleventh Circuit found that “if the provision of interpreters when necessary would not impose an undue financial burden on UAB, then it would be a reasonable accommodation. . . .” Id.
Plaintiffs in the instant case align themselves with the deaf students in Board of Trustees, arguing that they have “no access” to currency because they have no way to distinguish one bill from another without a scanning device or help from a sighted person. “No access” overstates the case, to be sure – the visually impaired have developed an impressive array of coping mechanisms, and they do make use of paper money – but plaintiffs do not need to prove “no access” to prevail. Like
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deaf students who can have real access to a lecture only with an interpreter or a realtime transcript, blind or visually impaired people cannot make effective use of American currency without help. There was a time when disabled people had no choice but to ask for help – to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, by enacting the Rehabilitation Act, whose stated purpose is “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society.” 29 U.S.C. § 701(b)(emphasis added). It can no longer be successfully argued that a blind person has “meaningful access” to currency if she cannot accurately identify paper money without assistance. Undue Burden
Plaintiffs who do not have meaningful access are entitled only to “reasonable accommodations.” Choate, 469 U.S. at 301. Accommodations are not reasonable if they would entail either “undue financial and administrative burdens” or a “fundamental alteration in the nature of a program.” Davis, 442 U.S. at 410, 412.
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The government submits that the burden-shifting approach outlined in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), should be applied where plaintiffs seek an accommodation under the Rehabilitation Act. Under Barnett, plaintiffs must first show that a requested accommodation would be “reasonable on its face.” The burden then shifts to defendant to show “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. at 401-02. Plaintiffs rightly point out the lack of authority for applying this method outside Barnett’s employment-discrimination context, but it is as good as any method of shifting the balance.
Plaintiffs have proposed several possible changes to U.S. currency: dimensions varied by denomination, embossed dots, foil, micro-perforations, and raised intaglio printing.9 (Note that plaintiffs do not seek to change the $1 bill, see note 1, supra. If other denominations are changed, the unchanged $1 bill would be recognizable.10) The fact that each of the proposed
9The parties have also debated design changes that would accommodate plaintiffs who have low vision, but who are not blind. These include: increasing the size of the numeral, altering background colors, and adding geometric patterns. While such changes would no doubt be a welcome improvement for many people, any solution that accommodates some, but not all, individuals with impaired vision is, at best, a half-measure.
10The record contains little information about the effect of currency changes on third parties, and what information there is is inconclusive. The National Automatic Merchandising Association (NAMA), as amicus curiae, argues that changes to U.S. currency impact the $30 billion vending machine industry. A small survey of NAMA members (eight respondents) reveals mixed levels of concern about the economic impact of the proposed changes, however. The
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features is currently used in other currencies suggests that, at least on the face of things, such accommodations are reasonable, but the government denies it, pointing to a “host of factors” that it says distinguish U.S. currency from other paper money. Def.’s Mem. Opp’n. [#43, at 10]. None of these factors demonstrates undue hardship, however.
First, the government suggests that any changes to the currency could interfere with the BEP’s statutory mandate to guard against counterfeiting, id., and warns that the increasing sophistication of counterfeiting efforts would “significantly complicate any effort to add a tactile feature to U.S. currency.” Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J, (October 25, 2005) [#43-2, at ¶ 3]. This suggestion is unsupported argument, and it is utterly unpersuasive. The government offers no reason to think that the addition of a tactile feature would render U.S. currency more vulnerable to counterfeiting, and indeed the use of foil and raised print on the Euro is considered a security feature, as is the micro-
surveyed firms agreed that changing the width of bills would be the most costly alteration. Some firms estimated major costs associated with any change, whereas other respondents, particularly those that conduct business outside the U.S., stated that changes would not be difficult to implement. See Mem. of Nat’l Automatic Merchandising Ass’n [#39]. That disagreement aside, the helpfulness of this survey is limited, because it appears to have been conducted under the assumption, no longer accurate, that plaintiffs seek changes to the $1 bill. It is unclear whether and to what degree any impact on the vending machine industry would be lessened by making changes only to bills other than the $1.
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perforated number on a Swiss banknote. See The Euro, Our Money, [#60-2], European Central Bank - Security Features, [#60-3], and Swiss National Bank - Security Features, [#60-4].
The government also contends that any “drastic or sudden” changes to the currency could undermine international recognition and acceptance of U.S. currency “as a common medium of exchange throughout the world.” Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J, (October 25, 2005) [#43-2, at ¶ 2]. This contention is not only unsupported, but, on its face, is fairly absurd. If the government has any evidence that U.S. currency is accepted throughout the world because it is a “greenback,” rather than because of the strength of the American economy, it has not placed that evidence in the record.
Lastly, the government asserts, more plausibly, that each of the proposed changes might decrease the life span of American currency, requiring more frequent replacement. Increasing the size of currency, for example, might cause people to fold bills more frequently, “thus increasing the wear on those denominations. . . and increasing expenditures to replace worn currency.” Id. at ¶ 5. Such costs “cannot be determined.” Def.’s Resp. To Interrogs. 5, 6 [#35-11].11 In 2001, the Canadian Bank Note Company (CBNC) conducted preliminary tests on
11Government counsel’s oral estimate of cost increase that would result from a reduction in the useful life of each bill, Mot. Hr’g Tr. (May 4, 2006) at 26-27, is unsupported in the record.
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Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 21 of 26
ten U.S. banknotes to determine the feasibility of adding tactile features such as those used in Canadian currency. The parties disagree about whether those tests were persuasive, compare Decl. of H.H. Holton [#35-45, at ¶¶ 8-9], with Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at ¶ 10], but they appear to agree that a test of ten notes is not statistically significant. Id. The BEP has chosen not to pursue further testing, because the results of the initial test were “sufficiently disappointing that pursuing inclusion of the proposed feature on U.S. currency was not considered worthwhile,” and because security considerations for transferring 1,000 bank notes to a foreign location “make the preliminary testing of only small quantities more practical.” Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at ¶¶ 910]. Neither explanation is compelling. The Federal Reserve distributes a “large” amount of currency to foreign banks each year, see Federal Reserve Board, Currency and Coin Services, [#60-14], and the results of a statistically insignificant test, no matter how disappointing, should not serve as the basis for a decision not to conduct a statistically significant one. Lacking any statistically significant evidence from the government, I cannot find that a hypothetical reduction in the life span of bank notes constitutes an undue burden.
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Moreover, the government has tacitly conceded at least the feasibility of each proposed feature, except raised intaglio printing, by providing cost estimates.12 Production of bills of different sizes, the most expensive option, would require an initial investment of $178 million for new printing presses, inspection and verification machines, numbering machines, and processing equipment, and $37-50 million for new printing plates for each new bill. See Def.'s Resp. to Pls.’ Second Req. for Produc. of Documents [#43-3]. In addition to these initial costs, the BEP foresees increased annual costs of approximately $30 million to acquire additional paper and ink and $22 million to meet increased labor needs. Id. An embossed feature on each bill, such as a raised numeral, would have initial capital costs of $45.5 million and additional annual costs of approximately $16 million. Supp. Decl. of Thomas Ferguson (Aug. 30, 2005), [#33-7, at ¶ 9]. Perforating (punching a hole in) each note would require initial costs of $75 million, with additional annual costs of approximately $9 million. Id. at ¶ 10. A foil feature would require an initial expenditure of $51.5 million with annual
12Defendant’s initial cost estimates in this matter were startling, and ultimately misleading. Defendant first asserted that the changes sought by plaintiffs would require an initial investment of $26 to $101 million dollars more than its total budget for 2001, and an annual increase in expenses of sixty-five to seventy-nine percent. See Def.’s Mem. Opp’n. [#43, at 24]; Def.’s Reply [#61, at 16]. This estimate appears to have been calculated to include all of the changes proposed by plaintiffs, however. Just one such tactile feature would suffice. See Pls.’ Surreply [#67, at 15].
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costs of approximately $15 million. Id. at ¶ 14. In addition, the government notes, any change would require worldwide public education to ensure public acceptance of the new bills, which would cost between $70 to $90 million. Decl. of Thomas Ferguson (Aug. 28, 2002) [#33-5, at ¶ 48].13
These cost estimates are the heart of the government’s undue burden argument. The government asserts that any of the accommodations proposed by plaintiffs would force it to undertake the kind of “undue financial and administrative burdens" precluded by Supreme Court precedent.
Any change to the design of U.S. currency would undoubtedly require a substantial investment of labor, time, and money devoted to, among other things, research, consultation, planning, the creation of new plates, the purchase, installation, and operation of new equipment, and increased maintenance and production costs. Yet the government’s own estimate of such costs would represent only a small fraction of BEP’s annual expenditures. Over the past ten years – and two redesigns – the BEP has spent $4.2 billion on currency production, an average of
13All cost estimates were provided by the government. See Def.'s Resp. to Pls.’ Second Req. for Produc. of Documents; Supp. Decl. of Thomas Ferguson (Aug. 30, 2005). These figures may be inflated, however, due to the government’s inclusion of the cost of modifying the one dollar bill. See Decl. of Thomas Ferguson in Resp. to Pls.’ Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at ¶ 11]. Plaintiffs do not seek changes to the one dollar bill, which by BEP estimates accounts for roughly half of all currency printed each year.
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$420 million per year. Def.’s Resp. to Interrog. 1 [#35-11]. Over the same ten year period, the addition of an embossed numeral - at an initial cost of $45.5 million and annual costs of $16 million - would have increased BEP spending by approximately $205.5 million, or less than five percent. If additional savings could be gained by incorporating the new feature into a larger redesign, such as those that took place in 1996 or 2004, the total burden of adding such a feature would be even smaller.
Further Proceedings
Plaintiffs have demonstrated that they lack meaningful access to U.S. currency. They have put forth several potential accommodations that are reasonable on their face. The government has not sustained its burden of showing that any of them would be unduly burdensome to implement. I find, accordingly, that the Treasury Department’s failure to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates § 504 of the Rehabilitation Act, and I will grant plaintiffs’ prayer for a declaratory judgment.
Plaintiffs also seek three forms of injunctive relief: (1) a permanent injunction prohibiting defendant from continuing to manufacture banknotes in the present manner; (2) a permanent injunction requiring that banknotes be designed to incorporate features that will make them accessible to people with blindness and other vision impairments; and in conjunction therewith an
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Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 25 of 26
order that defendant provide for court approval a detailed corrective action plan as to the features which it will incorporate into the design of U.S. banknotes to accomplish such purpose; and (3) a permanent injunction mandating that defendant diligently pursue the development of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes.
This Court has neither the expertise, nor, I believe, the power, to choose among the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law. The Clerk will be directed to set a status conference for the purpose of discussing remedy and scheduling any further proceedings, unless within ten days of the issuance of this memorandum order the government applies for leave to file an interlocutory appeal. (This memorandum order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal from this order may materially advance the ultimate termination of this litigation. See 28 U.S.C. § 1292(b).)
* * * * * For the foregoing reasons, it is ORDERED that defendant’s renewed motion to dismiss or for summary judgment [#33] is denied; it is
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Case 1:02-cv-00864-JR Document 72 Filed 12/01/06 Page 26 of 26 FURTHER ORDERED that plaintiffs’ motion for summary
judgment [#35] is granted in part, and that it is ADJUDGED AND DECLARED that the Treasury Department’s failure to design, produce and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates § 504 of the Rehabilitation Act. And it is
FURTHER ORDERED that the clerk set a status conference for a date and time convenient to the parties approximately 30 days after the date of this memorandum order.
JAMES ROBERTSON United States District Judge
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 Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al., )

)

Plaintiffs,

)

)

v.

)

)

HENRY M. PAULSON, JR., Secretary of the

)

Treasury,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:02CV00864 JR

DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES REGARDING FINAL ORDER AND JUDGMENT

INTRODUCTION

The Department of the Treasury ("Department") has already started complying with the

declaration of this Court that blind and other visually impaired persons presently lack meaningful

access to United States currency under the Rehabilitation Act. Indeed, this process began several

months before issuance of the D.C. Circuit's decision in this action. See Declaration of Larry R.

Felix, Director of the Bureau of Engraving and Printing ¶ 3 [80-2]. The Bureau of Engraving and

Printing awarded a contract, in January 2008, for a comprehensive study to assess the needs and

abilities of blind and other visually impaired persons, to examine the methods available for

providing meaningful access to currency, and to analyze those alternatives in relation to the

Bureau's manufacturing process. Id. ¶¶ 6-13. The Department intends to review the results of

the Contractor Study, seek public comments on tentative recommendations for providing mean-

ingful access, and ultimately select a method or methods that best meet that objective without

undermining the requirements to guard against counterfeiting and to ensure that United States

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 2 of 14
currency remains a reliable, durable, and usable medium of exchange for the public. Id. ¶¶ 14-18.
Because the Department is already actively engaged in complying with the Court's declaratory judgment, injunctive relief would be unnecessary and inappropriate here. As the Supreme Court has observed, a court should exercise its discretion to withhold injunctive relief where it can be "assume[d] that the [government will] proceed appropriately without the coercion of a court order when finally advised by the courts" that its conduct is contrary to law. See Dunlop v. Bachowski, 421 U.S. 560, 575-76 (1975). Indeed, where a matter is statutorily committed to an agency, the usual judicial remedy is simply to remand to the agency for corrective action. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002). Further, where, as here, the injunctive relief would be mandatory — as would plaintiffs' proposed order requiring defendant to "bring currency into compliance" with the Rehabilitation Act — such relief should not be entered without meeting the high standards for mandamus relief. The Department of the Treasury has no objection to an order confirming the Court's declaratory judgment and requiring regular submission of reports regarding the progress in complying with the declaration, but submits that the Court should decline to enter an injunction requiring the Department to do what it is already doing. A requirement for submission of status reports makes an injunction, at this stage of the litigation, even more unnecessary.
Because injunctive relief is neither necessary nor appropriate here, defendant submits herewith a proposed Order and Judgment (Attachment 1), which requires only that the defendant report on progress in providing meaningful access to the currency. In the alternative, should the Court determine to issue an injunction, defendant respectfully submits an alternative proposed
2

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 3 of 14
Order and Judgment (Attachment 2), which is consistent with the Court's statements at the status conference of September 4, 2008. Part I below explains further why the Court should decline to enter an injunction requiring the defendant to comply with the declaratory judgment in this action. Part II explains some of the provisions in the alternative proposed Order and Judgment, should the Court determine to issue injunctive relief. Part III explains why the Court should not adopt certain provisions of the Order proposed by the plaintiffs.1
ARGUMENT I. An Injunction Is Unnecessary Here and Thus Equitably Inappropriate
An "injunction is inherently an equitable remedy," subject to "equitable principles." Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 211 n.1 (2002); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393 (2006). Thus, "the decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court." Id. at 391. An injunction does not "automatically" follow upon a determination that the law has been infringed. Id. at 392-93.
A plaintiff seeking a permanent injunction must establish, among other things, "that without injunctive relief [it] will suffer irreparable harm." FCE Benefit Adm'rs, Inc. v. George Washington Univ., 209 F. Supp. 2d 232, 243-44 (D.D.C. 2002). Moreover, if a declaratory judgment is sufficient to remedy the harm complained of, an injunction is unnecessary. See Alcorn v. Wolfe, 827 F. Supp. 47, 53-54 (D.D.C. 1993) (denying injunctive relief in light of
1 The parties have conferred in an attempt to prepare a joint proposed order. They were unable to reach agreement on a joint order, but were able to agree on the language of paragraphs 5, 6, and 8 in Attachment 2 hereto, which correspond to paragraphs 6, 7, and 9 in plaintiffs' proposed Order.
3

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 4 of 14
defendant's "unequivocal guarantee" that he would abide by declaratory judgment). Where plaintiff's interests can be protected by a declaratory judgment, "the stronger injunctive medicine will be unnecessary." Wooley v. Maynard, 430 U.S. 705, 711 (1977); see Dunlop v. Bachowski, 421 U.S. 560, 575-76 (1975) (stating that injunctive relief would be inappropriate in light of assumption "that the Secretary would proceed appropriately without the coercion of a court order when finally advised by the courts that his decision was in law arbitrary and capricious"); Roe v. Wade, 410 U.S. 113, 166 (1973) (finding it "unnecessary" to consider injunctive relief, based on assumption that defendant would "give full credence" to declaratory judgment); Grandco Corp. v. Rochford, 536 F.2d 197, 208 (7th Cir. 1976) (vacating district court's entry of injunction where court was "persuaded that the declaratory remedy is sufficient in itself in the context of this case"). Even where an agency has acted unconstitutionally, the court "should proceed cautiously and incrementally in ordering remediation so as not to assume the role of [government] administrators." See Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994). Even in that context, "intrusive and far-reaching federal judicial intervention . . . is justifiable only where [agency] officials have been afforded the opportunity to correct constitutional infirmities and have abdicated their responsibility to do so." Id. (emphasis added).
Under these principles, this Court should exercise its discretion to decline to enter an injunction requiring the Department of the Treasury to provide meaningful access to the currency for blind and other visually impaired persons. As detailed in the Declaration of Larry R. Felix, Director of the Bureau of Engraving and Printing, submitted on August 29, 2008 [80-2], the Department has already begun the process of determining how to provide such meaningful
4

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 5 of 14
access. The defendant is committed to carrying this process to completion and to taking appropriate action at the end of the process (Declaration, paragraph 3).
The record demonstrates that the Department of the Treasury is "giv[ing] full credence" to this Court's declaratory judgment and is "proceed[ing] appropriately without the coercion of a court order." See Roe, 410 U.S. at 166; Dunlop, 421 U.S. at 575-76. Moreover, the regular submission of status reports regarding the ongoing process of providing meaningful access to U.S. currency will allow the Court to ensure that the Department continues to make progress toward that end. Under these circumstances, plaintiffs cannot show "that without injunctive relief [they] will suffer irreparable harm." FCE Benefit Adm'rs, Inc., 209 F. Supp. 2d at 243-44. Issuing an injunction requiring the Department to do what it is already doing would not be consistent with the equitable principles governing the issuance of such relief.
Furthermore, Congress has expressly committed the design of United States currency to the Secretary of the Treasury, rendering an injunction particularly inappropriate. See 12 U.S.C. § 418. Where a matter is statutorily committed to an agency, the usual judicial remedy is simply to remand to the agency for corrective action. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002). The Supreme Court has directed that courts "should remand a case to an agency for decision of a matter that statutes place primarily in agency hands. . . . The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination . . . ." Id. "[W]hen an agency committing an error of law has discretion to determine in the first instance how it should be rectified, the proper course is to remand the case for further agency consideration in harmony with the court's holding." Global Van Lines, Inc. v. ICC, 804 F.2d 1293, 1305 n.95 (D.C. Cir. 1986); see PPG Indus., Inc. v. United States, 52 F.3d
5

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 6 of 14
363, 365-66 (D.C. Cir. 1995) ("[W]hen a court reviewing agency action determines that an agency made an error of law, the court's inquiry is at an end: the case must be remanded to the agency for further action consistent with the corrected legal standards."). In this case, the "form and tenor" of United States currency are statutorily committed to the Secretary's discretion, see 12 U.S.C. § 418, such that the matter at hand has been "place[d] primarily in agency hands" — that is, in the hands of the defendant. See Orlando Ventura, 537 U.S. at 16-17.
An injunction here would be even more inappropriate if it incorporated plaintiffs' proposed language mandating that the Department of the Treasury take "such measures as are required to bring currency into compliance with Section 504 of the Rehabilitation Act." A request for an injunction must be "analyzed as one requesting mandamus" if "a mandatory injunction [is sought] against a federal official." National Wildlife Fed'n v. United States, 626 F.2d 917, 918 n.1 (D.C. Cir. 1980); see In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005); Swan v. Clinton, 100 F.3d 973, 977 n.1 (D.C. Cir. 1996). The "drastic" remedy of mandamus is warranted only "where a public official has violated a 'ministerial' duty" — that is, one that "admits of no discretion." See Consolidated Edison Co. v. Ashcroft, 286 F.3d 600, 605 (D.C. Cir. 2002). The "distinction between discretionary and ministerial duties" is "critical . . . because the courts do not have authority under the mandamus statute to order any governmental official to perform a discretionary duty." Swan, 100 F.3d at 977.
As this Court has recognized, the defendant has substantial discretion to determine the most appropriate method for providing meaningful access for blind and other visually impaired persons to American currency. See American Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 62 (D.D.C. 2006) (The Court "has neither the expertise, nor . . . the power, to choose among
6

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 7 of 14
the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law."); see also American Council of the Blind v. Paulson, 525 F.3d 1256, 1273 (D.C. Cir. 2008) (referring to "the Secretary's broad discretion to determine how to come into compliance with section 504"). The language proposed by plaintiffs — which purports to require the Department to "bring currency into compliance with Section 504" — limits defendant's discretion in a way that goes beyond what the Rehabilitation Act mandates by requiring a change in the currency and implicitly foreclosing the use of currency readers as a means of providing meaningful access for blind and other visually impaired persons. See Transcript of Status Conference at 23 (Sept. 4, 2008). Such a constraint on the defendant's lawful discretion plainly cannot be characterized as compelling the performance of a "ministerial duty," and consequently runs afoul of the standards applicable to requests for relief in the nature of mandamus.
For all of these reasons, defendant submits that the Court should limit relief to the declaratory judgment and reporting provision embodied in the proposed Order and Judgment submitted as Attachment 1 hereto. II. If the Court Determines that Injunctive Relief Is Necessary, the Order
and Judgment Submitted Herewith Meets the Court's Requirements The proposed Order and Judgment submitted herewith as Attachment 2 implements the views stated by the Court during the status conference of September 4, 2008. As requested by the Court, this Order and Judgment would require the Department of the Treasury, without unreasonable delay, to take such steps as may be required to provide meaningful access to currency for blind and other visually impaired persons before the next redesign of
7

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 8 of 14
each denomination of currency. This does not mean, however, that redesigning the currency will necessarily be chosen as the means to comply with the Court's declaratory judgment. As explained during the status conference and as reflected in the Declaration of Larry R. Felix, the Department is, at this point in the process, considering all potential methods of providing meaningful access to the currency — including electronic currency readers, which the D.C. Circuit's decision in this case recognized might permissibly be relied on to satisfy defendant's obligation. American Council of the Blind, 525 F.3d at 1270-71.
The proposed Order and Judgment at Attachment 2 also recognizes a few exceptions to this general directive, most of which were discussed during the recent status conference (paragraphs 3 through 6). First, because the Department of the Treasury intends to unveil shortly the new $100 note, which has already been redesigned, the Court acknowledged that the defendant would not have to come into compliance with regard to this denomination until its next redesign.2 See Transcript of Status Conference at 16 (Sept. 4, 2008). Second, the $1 note would not be affected by the Order and Judgment, since the Department is legislatively prohibited from modifying the $1 note and plaintiffs have expressly eschewed any attempt to compel such a redesign through this action. See American Council of the Blind, 525 F.3d at 1275 n.3 ("Congress has prohibited the Treasury from redesigning the $1 bill, which is why the Council does not seek to change its size."); see also Pub. L. No. 110-161, § 113, 121 Stat. 1844, 1978 (2007) (making appropriations "for the fiscal year ending September 30, 2008"); Plaintiffs' Motion for Summary Judgment [35], Attachment 1 ("nothing herein shall require redesign of the
2 See http://www.moneyfactory.gov/newmoney/ ("The $100 bill is the next denomination slated for a new design, after the $5 bill. An official introduction date has not been set.").
8

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 9 of 14
$1 note"). Third, the Department would not be prohibited from changing the Series year or the signatures of the Secretary of the Treasury or of the Treasurer of the United States on each note, nor from changing machine-readable features that are not visible to the naked eye.
Fourth, under the Order and Judgment at Attachment 2, the Department of the Treasury would be permitted to redesign any denomination without fully providing meaningful access in relation to that denomination, upon a written determination by the Director of the Bureau of Engraving and Printing that such redesign is urgently needed to counter a threat or threats of counterfeiting, or that it will improve access to the currency by blind or other visually impaired persons. As discussed during the September 4 status conference, counterfeiting threats occasionally arise that must be responded to without delay. The last portion of this exception — referring to improving access by blind and other visually impaired persons — would permit making incremental improvements to that end, such as placing on all denominations the large numeral currently found on the $5 note.
Fifth, both proposed orders submitted herewith provide that the first semiannual report of defendant's progress would be due no later than March 16, 2009 — that is, approximately two weeks after the report of the Contractor Study is currently due for submission to the Bureau of Engraving and Printing. The semiannual frequency of reporting is based on the Court's statements during the status conference. See Transcript of Status Conference at 16 (Sept. 4, 2008) ("I think 180-day reporting probably makes more sense, and we'll get a better sense of movement in 180 days than we would every 90 days.").
9

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 10 of 14
III. Several Aspects of Plaintiffs' Proposed Order Should Not Be Adopted by This Court In contrast to defendant's proposed orders, the Order submitted by the plaintiffs contains
provisions or language that would be inappropriate for this case.3 Paragraph 1 of plaintiffs' proposal states that the defendant shall "bring currency into
compliance" with the Rehabilitation Act. This reference to "bring[ing] currency into compliance" impliedly forecloses relying on electronic currency readers to provide meaningful access, contrary to the appellate court's observation that a certain statement by this Court was "not fairly read as foreclosing reliance on technological auxiliary aids, such as a portable currency reader. Courts have held," the Court of Appeals continued, "that government-provided interpretive services can provide meaningful access to the disabled, although there is no occasion for us to address whether inexpensive, commercially provided auxiliary aids could satisfy the Secretary's statutory obligation to ensure meaningful access [to the currency]." American Council of the Blind, 525 F.3d 1270-71 (citations and footnote omitted).
In paragraph 2, plaintiffs' proposed Order states that the defendant shall "implement accommodations" to provide meaningful access to the currency "pursuant to the next scheduled currency redesign." Plaintiffs' reference to the "next scheduled" redesign reflects a misunderstanding of the process of updating currency to incorporate anti-counterfeiting features. Although the Department of the Treasury's goal is to redesign each denomination every seven to ten years for that purpose, see Transcript of Status Conference at 10 (Sept. 4, 2008), the redesigns
3 Defendant was served with plaintiffs' proposed Order on the afternoon of September 15, 2008.
10

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 11 of 14
are not on any precise "schedule." This aspect of plaintiffs' proposed Order would not, therefore, correspond to the facts.4
Paragraph 5 of plaintiffs' proposal differs significantly from paragraph 4 of the proposed Order and Judgment submitted by defendant as Attachment 2 hereto.5 First, plaintiffs would require that a redesign to address a counterfeiting threat be made only if the redesign were needed "immediately," whereas defendant's proposal would permit such a redesign if needed "urgently." Given that a redesign of currency requires some time — as amply shown by the evidence in this case — it makes little sense to speak of an "immediate" redesign. Second, plaintiffs' proposal calls for the Secretary of the Treasury or the Deputy Secretary, rather than the Director of the Bureau of Engraving and Printing ("BEP"), to make the written determination referred to. By its nature, a determination that a redesign of currency is urgently needed must be made without unnecessary delay. Since a determination by the Secretary or Deputy Secretary would require an additional administrative step and thus more time, requiring the Director to make the determination would be more appropriate and would fully protect plaintiffs' interests. Additionally, the Secretary has delegated to the BEP his authority to produce currency, and there is no basis for ignoring that delegation here.
4 Additionally, plaintiffs' paragraph 2 would impose an obligation on the defendant to implement "accommodations," a term which is used only in Subchapter I of the Americans with Disabilities Act, see 42 U.S.C. §§ 12111(9), 12112(b)(5), which governs employment discrimination and has no bearing on this case.
5 The Department of the Treasury will address paragraph 3 of plaintiffs' proposed Order in its forthcoming response to plaintiffs' motion requiring defendant to "mitigate" certain alleged "deficiencies."
11

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 12 of 14
Third, plaintiffs seek to require that the written determination regarding a counterfeiting threat be filed with the Court. Any such determination would be highly sensitive, in that it would deal with counterfeiting threats, particularly threats that must be addressed urgently. Accordingly, any corresponding filing either would have to be extremely vague and uninformative, or would need to be filed under seal and ex parte.
Fourth, plaintiffs' paragraph 5 omits the language, from defendant's paragraph 4, that an interim redesign may be made upon a written determination that it "will improve access to the currency by blind or other visually impaired persons." As noted above in discussing the proposed Order and Judgment submitted as defendant's Attachment 2, this language would permit incremental improvements to that end, short of fully providing meaningful access, such as placing on all denominations the large numeral currently found on the $5 note. It is difficult to understand why plaintiffs would object to this provision. Without it, the Department of the Treasury would not be permitted to make even small changes in the currency beneficial to blind and other visually impaired persons until the next currency redesign is approved.6
In paragraph 8, plaintiffs propose language providing that "[t]he Court shall consider comments from the public in connection" with any of the semiannual status reports filed by the defendant. This language would risk involving any number of public commenters — and, indirectly, the Court — in micromanaging the Currency Accessibility Process. Receiving and considering public comments in this context would impose an inappropriate and unnecessary
6 Plaintiffs' paragraph 4 says that the defendant "is currently engaged in redesigning the $100 note," whereas paragraph 3 in defendant's Attachment 2 says he "is currently engaged in implementing a redesign of the $100 note." Defendant's language more accurately reflects the current stage of this redesign.
12

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 13 of 14
burden on this Court, beyond the scope of its functions under Article III of the Constitution. Although the Department of the Treasury intends to seek public comments after analyzing the results of the Contractor Study and publishing its tentative recommendations, entertaining public comments before that point — especially comments to be filed with the Court — would delay, disrupt, and interfere with the Currency Accessibility Process.
CONCLUSION For the foregoing reasons, this Court should enter the proposed Order and Judgment submitted as Attachment 1 hereto, exercising its discretion to decline to enter an injunction requiring the Department of the Treasury to provide meaningful access to United States currency for blind and other visually impaired persons. To the extent the Court determines to enter injunctive relief, the Court should enter the proposed Order and Judgment submitted herewith as Attachment 2. Dated: September 15, 2008
Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEFFREY A. TAYLOR United States Attorney JOSEPH W. LOBUE, D.C. Bar 293514 Assistant Director Federal Programs Branch
/s/ W. Scott Simpson W. SCOTT SIMPSON, Va. Bar 27487 Senior Trial Counsel
13

Case 1:02-cv-00864-JR Document 88 Filed 09/15/08 Page 14 of 14 Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT
14

Case 1:02-cv-00864-JR Document 88-1 Filed 09/15/08 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, :

et al.,

:

:

Plaintiffs,

:

:

v.

:

:

HENRY M. PAULSON, JR.,

:

Secretary of the Treasury,

:

:

Defendant.

:

Civil Action No. 1:02CV00864 JR

ORDER AND JUDGMENT The United States Court of Appeals for the District of Columbia Circuit having affirmed this Court's Memorandum Order (Amended) of December 1, 2006 [72], the Court now enters the following Order and Judgment: 1. IT IS HEREBY ORDERED AND ADJUDGED that the defendant has violated Section 504 of the Rehabilitation Act by failing to provide meaningful access to United States currency for blind and other visually impaired persons. 2. IT IS FURTHER ORDERED that the defendant shall file a status report describing the steps taken during the reporting period to implement this Order and Judgment. The first such status report shall be filed no later than March 16, 2009, and each succeeding report shall be filed every 6 months thereafter, until the defendant has fully complied with this Order and Judgment.

Case 1:02-cv-00864-JR Document 88-1 Filed 09/15/08 Page 2 of 2 3. IT IS FURTHER ORDERED that the parties shall confer and attempt to reach agreement regarding plaintiffs' claim for attorney's fees and costs. Plaintiffs shall submit their application for attorney’s fees and costs in pursuing this action within 60 days of the date of this Order and Judgment. SO ORDERED.
JAMES ROBERTSON United States District Judge
2

Case 1:02-cv-00864-JR Document 88-2 Filed 09/15/08 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, :

et al.,

:

:

Plaintiffs,

:

:

v.

:

:

HENRY M. PAULSON, JR.,

:

Secretary of the Treasury,

:

:

Defendant.

:

Civil Action No. 1:02CV00864 JR

ORDER AND JUDGMENT The United States Court of Appeals for the District of Columbia Circuit having affirmed this Court's Memorandum Order (Amended) of December 1, 2006 [72], the Court now enters the following Order and Judgment: 1. IT IS HEREBY ORDERED AND ADJUDGED that the defendant has violated Section 504 of the Rehabilitation Act by failing to provide meaningful access to United States currency for blind and other visually impaired persons. 2. IT IS FURTHER ORDERED that, subject to the other provisions of this Order and Judgment, defendant shall, without unreasonable delay, take such steps as may be required to provide meaningful access to United States currency for blind and other visually impaired persons, which steps shall be completed, in connection with each denomination of currency, not later than the date when a redesign of that denomination is next approved by the

Case 1:02-cv-00864-JR Document 88-2 Filed 09/15/08 Page 2 of 3
Secretary of the Treasury after the entry of this Order and Judgment.
3. Notwithstanding paragraph 2 above, IT IS FURTHER ORDERED that, given that the defendant is currently engaged in implementing a redesign of the $100 note ("the NextGen $100"), the defendant need not comply with paragraph 2 above in connection with the NextGen $100 note until the date when another redesign of such denomination is next approved by the Secretary of the Treasury after the redesign that is currently in progress.
4. IT IS FURTHER ORDERED that the defendant may, notwithstanding paragraph 2 above, issue a redesign of any denomination of currency before defendant has fully complied with paragraph 2 above, upon a written determination by the Director of the Bureau of Engraving and Printing that such redesign is urgently needed to counter a threat or threats of counterfeiting, or will improve access to the currency by blind or other visually impaired persons.
5. IT IS FURTHER ORDERED, notwithstanding paragraph 2 above, that this Order and Judgment does not apply to the one dollar ($1) note, and does not require the defendant to make any changes to the one dollar ($1) note.
6. IT IS FURTHER ORDERED, notwithstanding paragraph 2 above, that this Order and Judgment does not apply to changing the Series year or the signatures of the Secretary of the
2

Case 1:02-cv-00864-JR Document 88-2 Filed 09/15/08 Page 3 of 3
Treasury or of the Treasurer of the United States on each note, nor to changing the machine-readable features on the notes that are not visible to the naked eye.
7. IT IS FURTHER ORDERED that the defendant shall file status reports describing the steps taken during the reporting period to implement this Order and Judgment. The first such status report shall be filed no later than March 16, 2009, and each succeeding report shall be filed every 6 months thereafter, until the defendant has fully complied with this Order and Judgment.
8. IT IS FURTHER ORDERED that the parties shall confer and attempt to reach agreement regarding plaintiffs' claim for attorney's fees and costs. Plaintiffs shall submit their application for attorney's fees and costs in pursuing this action within 60 days of the date of this Order and Judgment.
SO ORDERED. JAMES ROBERTSON
United States District Judge
3

 
 Case 1:02-cv-00864-JR Document 96 Filed 10/03/08 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, :

et al.,

:

:

Plaintiffs,

:

: Civil Action No. 02-0864 (JR)

v.

:

:

HENRY M. PAULSON, JR., Secretary :

of the Treasury,

:

:

Defendant.

ORDER AND JUDGMENT

The United States Court of Appeals for the District of

Columbia Circuit having affirmed this Court’s Memorandum Order

(Amended) of December 1, 2006 [72]:

1. IT IS ORDERED AND ADJUDGED that the defendant has

violated Section 504 of the Rehabilitation Act by failing to

provide meaningful access to United States currency for blind and

other visually impaired persons.

2. IT IS FURTHER ORDERED AND DECREED that defendant

take such steps as may be required to provide meaningful access

to United States currency for blind and other visually impaired

persons, which steps shall be completed, in connection with each

denomination of currency, not later than the date when a redesign

of that denomination is next approved by the Secretary of the

Treasury after the entry of this order and judgment.

3. This Order and Judgment does not apply to the one

dollar ($1) note, and does not require the defendant to make any

Case 1:02-cv-00864-JR Document 96 Filed 10/03/08 Page 2 of 3
changes to the one dollar ($1) note. This Order and Judgment does not apply to changing the Series year or the signatures of the Secretary of the Treasury or the Treasurer of the United States on each note, nor to changing the machine-readable features on the notes that are not visible to the naked eye. Notwithstanding paragraph 2 above, given that the defendant is currently engaged in implementing a redesign of the $100 note (“the NextGen $100"), the defendant need not comply with paragraph 2 above in connection with the NextGen $100 note until the date when another redesign of such denomination is next approved by the Secretary of the Treasury after the redesign that is currently in progress.
4. The defendant shall file periodic status reports describing the steps taken to implement this Order and Judgment. The first such status report shall be filed no later than March 16, 2009, and each succeeding report shall be filed every six months thereafter, until the defendant has fully complied with this Order and Judgment.
5. The parties are directed to confer and attempt to reach agreement regarding plaintiffs’ claim for attorney’s fees and costs. If no agreement is reached, plaintiffs shall submit
- 2 -

Case 1:02-cv-00864-JR Document 96 Filed 10/03/08 Page 3 of 3 their application for attorney’s fees and costs within 60 days of the date of this Order and Judgment.
JAMES ROBERTSON United States District Judge
- 3 -

 
 Case 1:02-cv-00864-JR Document 95 Filed 10/03/08 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, :

et al.,

:

:

Plaintiffs,

:

: Civil Action No. 02-0864 (JR)

v.

:

:

HENRY M. PAULSON, JR., Secretary :

of the Treasury,

:

:

Defendant.

MEMORANDUM

In American Council of the Blind v. Paulson, 463 F.

Supp. 2d 51 (D.D.C. 2006), I “declared that the Treasury

Department’s failure to design, produce and issue paper currency

that is readily distinguishable to blind and visually impaired

individuals violates § 504 of the Rehabilitation Act.” Id. at

63. The Court of Appeals affirmed that ruling and remanded the

case “for the district court to address the request for

injunctive relief.” American Council of the Blind v. Paulson,

525 F.3d 1256, 1260 (D.C. Cir. 2008).

The Treasury Department contends that injunctive relief

is inappropriate and unnecessary: inappropriate because “courts

should remand a case to an agency for decision of a matter that

statutes place primarily in agency hands,” INS v. Orlando

Ventura, 537 U.S. 12, 16-17 (2002), and unnecessary because the

Department “has already begun the process of determining how to

Case 1:02-cv-00864-JR Document 95 Filed 10/03/08 Page 2 of 4
provide meaningful access [to currency] . . . [and] is committed to carrying this process to completion.” Dkt. 88, at 4-5.
Neither objection is compelling. Remand might be the appropriate remedy when an administrative decision is erroneous -- as the Court held in Ventura -- but not when the government has an established practice that violates the law. In such instances, in matters famous, see Brown v. Board of Educ., 349 U.S. 294, 300 (1955), and obscure, see Henrietta D. v. Bloomberg, 331 F.3d 261, 290 (2d Cir. 2003), district courts are free to issue an injunction demanding compliance with the law.1
And while I do not question the Treasury Department’s commitment to achieving compliance, the best-laid plans can be derailed by shifting priorities, limited resources, and the other vagaries of bureaucratic action. As I have noted, “[t]his Court has neither the expertise, nor, I believe, the power, to choose among the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law.” American Council of the Blind, 463 F. Supp. 2d at 62. But this Court does have the expertise and the authority to create goals and to hold the
1 The Treasury Department also argues that an injunction would be inappropriate because it would the equivalent of mandamus, and mandamus is only permissible when a public official has violated a ministerial, rather than a discretional, duty. See Dkt. 88, at 6. But that claim is based on language from the plaintiffs’ proposed order that is not in the Court’s injunction order.
- 2 -

Case 1:02-cv-00864-JR Document 95 Filed 10/03/08 Page 3 of 4
government to those goals. That is the purpose of this injunction.
The injunction order makes one significant change to the Treasury Department’s proposed order. See Dkt. 88, Ex. 2. I have not included paragraph four, which gave the Secretary carte blanche to delay the issuance of accessible currency if s/he determined that a redesign was needed to address a counterfeiting threat. Id. at ¶ 4. If the Secretary needs relief from the injunction for that reason (or any reason), s/he can file a specific request, properly supported.
I have also not included certain provisions that the plaintiffs requested. The plaintiffs are concerned that the proposed order would permit the Treasury Department to furnish the visually impaired with external note readers, rather than modifying the currency itself. See Dkt. 89, at 5-6. I am not prepared at this point, on this record, to foreclose such an option. Plaintiffs also seek a public comment period following the release of defendant’s semiannual status reports. The Department has agreed to a public comment period after the contractor has completed his study and before the Department chooses a course of action; that should suffice.
- 3 -

Case 1:02-cv-00864-JR Document 95 Filed 10/03/08 Page 4 of 4

*

*

*

The injunction is granted by the order that accompanies

this memorandum.

JAMES ROBERTSON United States District Judge

- 4 -

 
 Case 1:02-cv-00864-BAH Document 152 Filed 01/06/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,
Plaintiffs,
v.

Civil Action No. 02-CV-00864 (BAH) Chief Judge Beryl A. Howell

JACOB J. LEW, Secretary of the Treasury, Defendant.

ORDER The plaintiffs have moved, for the second time, to modify this Court’s Order of October 3, 2008. Pl.’s Mot. to Modify the Court’s Injunctive Order Dated October 3, 2008 (“Pl.’s Mot.”), ECF No. 142; see also Pl.’s Motion to Amend Order and Response to Defendant’s Supp. Status Report, ECF No. 113. In that order, this Court mandated that the defendant must “take such steps as may be required to provide meaningful access to United States currency for blind and other visually impaired persons . . . in connection with each denomination of currency, not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury . . . .” Order, October 3, 2008, ECF No. 96. When this Order was entered, the specific language now challenged by the plaintiffs was based on a draft of a remedial order proposed by the defendant, but the plaintiffs raised no objection to this particular provision, nor did they suggest a specific timeframe be designated. See Pl.’s Response to Def.’s Mem. of Points and Authorities Regarding Final Judgment, ECF No. 89. Nonetheless, plaintiffs now urge the Court to modify this provision of the Order, which expressly eschewed setting a specific deadline, and instead set a hard “deadline of December 31, 2020 by which date the Secretary must provide meaningful access to the $10 bill.” Pl.’s Mem. Supp. Mot. to Modify The Court’s Injunctive Order Dated October 3, 2008 (“Pl.’s Mem.”), ECF No. 142, at 2, 36. Plaintiffs argue this modification is warranted because the October 3, 2008 Order “was issued
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in light of the Secretary’s goal to redesign each denomination of currency every seven to ten years” and the Secretary “has now furnished a new estimated date of 2026 to redesign the $10 note, and has not provided any estimated dates for redesign of the remaining denominations.” Id. at 1. For the reasons stated below, this motion is denied.
Rule 60(b) of the Federal Rules of Civil Procedure circumscribes a court’s ability to modify a final judgment unless, for example, “applying [the order] prospectively is no longer equitable,” FED. R. CIV. P. 60(b)(5), or “for any other reason that justifies relief,” provided the movant shows the presence of “extraordinary circumstances,” FED. R. CIV. P. 60(b)(6).1 Parties seeking modification under Rule 60(b)(5) must show that “‘a significant change either in factual conditions or in law’ renders continued enforcement [of a final judgment] ‘detrimental to the public interest.’” Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 384 (1992)). “The party seeking relief bears the burden of establishing that changed circumstances warrant relief.” Id. Rule 60(b)(6) sets a higher standard for modifying or vacating a final judgment, and this Circuit has “cautioned that it ‘should be only sparingly used.’” Twelve John Does v. D.C., 841 F.2d 1133, 1140 (D.C. Cir. 1988) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)).
In the October 3, 2008 Order, this Court did not set a specific deadline for compliance with Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; instead, the Court paired the development of

1

Plaintiffs also argue this Court may rely on its “inherent authority” to modify a final judgment. Pl.’s Mem. at 5-

7. Defendant responds vigorously that courts lack “inherent” powers to modify final orders, as opposed to an order

“before final judgment in a civil case,” Def.’s Opp’n Pl.’s Mot. to Modify the Court’s Injunctive Order Dated October 3,

2008, ECF No. 148, at 13 (quoting Dietz v. Bouldin, 136 S. Ct. 1885, 1888 (2016) (emphasis omitted)), or a “consent

decree where necessary to reflect the parties mutual intent,” id. “Th[is] Court, however, need not decide this thorny issue

because, whichever standard applies,” Cook v. Billington, No. CIV.A. 82-0400(GK), 2003 WL 24868169, at *3 (D.D.C.

Sept. 8, 2003), “the D.C. Circuit [has] explained that ‘[a]s a practical matter, it makes little difference whether the district

court [resolves a motion to modify a consent order] under Rule 60 or under its equitable authority as the standard for each

is substantially the same.’” N.Y. v. Microsoft Corp., 531 F. Supp. 2d 141, 169 (D.D.C. 2008) (quoting Pigford v.

Johanns, 416 F.3d 12, 16 (D.C. Cir. 2005)).

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features to improve meaningful access to currency with the ongoing, and statutorily required, redesigns of currency to combat counterfeiting. See 12 U.S.C. § 418 (requiring the Secretary of the Treasury to design currency “in the best manner to guard against counterfeits and fraudulent alterations”). Nonetheless, the plaintiffs would now upset the balance struck in the order by using the delay in releasing redesigned currency, arguing the “magnitude of the delays in this case clearly constitutes a changed circumstance warranting modification.” Pl.’s Mem. at 12.
The Court is cognizant of the fact that these delays postpone the implementation of some features that will improve access to currency for the blind or visually impaired, but the delays are not so “significant” that they render the October 3, 2008 order “detrimental to the public interest” such that this Court is empowered to modify the October 3, 2008 Order under Rule 60(b)(5). See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. at 384. Nor are the delays “extraordinary circumstances” that would justify a modification under the higher standard of Rule 60(b)(6). See Twelve John Does v. DC., 841 F.2d at 1140. (“It is clear . . . that a more compelling showing of inequity or hardship is necessary to warrant relief under subsection (6) than under subsection (5).”). The Court also observes that since the Order, substantial progress has been made in improving access to currency for the blind and visually impaired. The Secretary has most recently reported that the Bureau of Engraving and Printing (“BEP”), a component of the Department of the Treasury, has made progress in designing currency which would include a “raised tactile feature to each Federal Reserve note” and the BEP was continuing its efforts of “adding large, high-contrast numerals and different colors to each denomination that it may lawfully redesign.” Def.’s Sixteenth Status Report, ECF No. 151, at 1. Further, the Department has implemented a currency reader distribution program and “[a]s of September 9, 2016,” the Department reports it has “distributed more than 43,800 readers.” Id.
The Court recognizes that this progress is not as significant as a released redesigned note, but decoupling improvements for the blind and visually impaired—such as tactile features—from the
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continuing efforts by BEP to redesign currency to combat counterfeiting, could create unnecessarily

duplicative work and potentially increase costs for both the government and the private sector. See,

e.g., Def.’s Opp’n, Attach. 1, ECF No. 148-1 (Decl. of Associate Director, BEP, explaining that

redesigning “each denomination twice in the near future . . . once to incorporate [tactile features] and

again to incorporate new visual designs and enhanced security features to continue to minimize

counterfeiting – would both substantially increase private sector costs and create a very real risk of

confusion for both businesses and the broader public”). Thus, plaintiffs’ proposed modification

might turn out to be more detrimental to the public interest than the current order in effect.

For the foregoing reasons, it is hereby ORDERED that plaintiff’s Motion to Modify the

Court’s Injunctive Order Dated October 3, 2008 is DENIED, without prejudice.

SO ORDERED. DATED: January 6, 2017

Digitally signed by Hon. Beryl A. Howell, U.S. District Court Judge DN: cn=Hon. Beryl A. Howell, U.S. District Court Judge, o=U.S. District Court for the District of Columbia, ou, email=Howell_Chambers@dcd.usco urts.gov, c=US
_______________D_ate_: 2_01_7.0_1.0_6_17_:45_:51_-0_5'0_0'__ BERYL A. HOWELL
Chief Judge

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 Case 1:02-cv-00864-BAH Document 175 Filed 01/09/19 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et al.,
Plaintiffs,
v.
STEVEN T. MNUCHIN,1 Secretary of the Treasury,
Defendant.

Civil Action No. 02-00864 (BAH) Chief Judge Beryl A. Howell

ORDER The defendant has moved for a stay of proceedings in light of a lapse of appropriations, which the plaintiffs oppose. See Def.’s Mot. to Stay, ECF No. 170; Pls.’ Mem. in Opp’n to Mot. to Stay, ECF No. 171; Pls.’ Response to Order of the Court (“Pls.’ Resp.”), ECF No. 172. Upon consideration of the parties’ arguments, the defendant’s motion for a stay is DENIED without prejudice, the Motions Hearing scheduled for January 25, 2019 is VACATED, as are deadlines related to that hearing, see Minute Order (Jan. 4, 2019), and the parties are DIRECTED to submit detailed answers to the questions, by the deadlines, set out below. I. BACKGROUND The plaintiffs have, for the third time, moved to modify the injunction originally entered over a decade ago, in 2008, in this case. 2 See Pls.’ Third Mot. to Modify Injunction (“Pls.’ Third Mot.”), ECF No. 164. The original injunction ordered the defendant to “take such steps as may be required

1

The current Secretary of the Treasury is automatically substituted as Defendant in his official capacity for his

predecessor pursuant to Fed. R. Civ. P. 25(d).

2

The defendant implies that the plaintiffs erroneously refer to this Order as an “injunctive order,” see Def.’s

Opp’n to Third Mot. at 3 n.1, ECF No. 164. As noted in this Court’s Memorandum accompanying that Order, American

Council of the Blind v. Paulson, 581 F. Supp. 2d 1, 1 (D.D.C. 2008), however, the Order was issued following remand

from the D.C. Circuit, which affirmed the district court’s judgment that the defendant was violating section 504 of the

Rehabilitation Act, 29 U.S.C. § 794, by failing to provide meaningful access to currency to persons who are blind or

visually impaired, American Council of the Blind v. Paulson, 525 F.3d 1256, 1259–60, 1274 (D.C. Cir. 2008), then

remanded for the district court to “address the request for injunctive relief,” id. at 1260, 1274. See also Am. Council of

the Blind v. Paulson, 581 F. Supp. 2d at 2 (“The injunction is granted by the order that accompanies this memorandum.”).

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to provide meaningful access to United States currency for blind and other visually impaired persons . . . in connection with each denomination of currency, not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury.” Order, October 3, 2008, ECF No. 96. Citing the defendant’s delays in redesigning currency in order to accommodate “significant developments in counterfeiting technology,” see Def.’s Supplemental Status Report ¶ 5, ECF No. 139; Def’s Supplemental Status Report ¶ 1, ECF No. 141, the plaintiffs moved to modify the injunction to require the defendant to provide meaningful access to the $10 bill by December 31, 2020, and to other denominations that can be legally redesigned by December 31, 2026. See Pls.’ Second Mot. to Modify Injunction at 4–5, ECF No. 142. This Court denied that motion, American Council of the Blind v. Lew, No. 02-CV-00864 (BAH), 2017 WL 6271264, at *2 (D.D.C. Jan. 6, 2017), but the D.C. Circuit reversed and remanded, American Council of the Blind v. Mnuchin, 878 F.3d 360, 371 (D.C. Cir. 2017).
In lieu of pursuing remand proceedings on their second motion to modify the injunction, the plaintiffs opted to file a renewed motion to modify the injunction, mooting their second motion. See Joint Status Report with Stipulation at 1, ECF No. 158 (“Upon the filing of plaintiffs’ renewed motion to modify, plaintiffs’ motion of June 6, 2016 [Pls.’ Second Mot.] shall be denied as moot.”). The plaintiffs’ third motion seeks identical relief to their second motion: an order requiring meaningful access to the $10 bill by December 31, 2020 and to other denominations that can be legally redesigned by December 31, 2026. Pls.’ Third Mot. at 4.
Although the plaintiffs bear the burden of showing the necessity for modification of the agreed-upon injunctive relief, see Fed. R. Civ. P. 60(b)(5); American Council of the Blind v. Mnuchin, 878 F.3d at 366 (“The party seeking relief bears the burden of establishing that changed circumstances warrant relief.”) (internal quotation marks and citation omitted), and despite the Court’s invitation to identify any government witnesses from whom the plaintiffs may wish to elicit
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testimony, see Minute Order (Jan. 4, 2019), the plaintiffs have indicated that they “do not intend to call any government witnesses to testify. . . . [and] rest their case on the basis of their existing briefs plus the attachments,” Pls.’ Resp. at 1. Moreover, the plaintiffs ask the Court “not [to] indulge the Secretary with yet another opportunity to satisfy his burden [of providing more concrete cost estimates],” id. at 2, indicate that “oral testimony from government witnesses at this stage of these proceedings would serve no useful purpose,” id., and argue that the motions hearing the Court scheduled for January 25, 2019 should be vacated as it “is not likely to facilitate the Court’s understanding of the relevant issues,” id. The plaintiffs take this position, ironically, at the same time they demand more clarity as to three critical issues, including (1) the defendant’s position on the feasibility of a raised tactile feature (“RTF”), see Pls.’ Response to the Def.’s Supplemental Status Report, ECF No. 173; (2) the defendant’s cost estimates, see Pls.’ Resp. at 1; Pls.’ Reply in Support of Third Mot. to Modify Injunction, ECF No. 168; and (3) relatedly, the defendant’s timeline for deployment of currency changes, Pls.’ Third Mot. at 3.
The D.C. Circuit previously deemed the defendant’s cost estimates “crucial to weighing the equities of the plaintiffs’ requested modification,” American Council of the Blind v. Mnuchin, 878 F.3d at 369. As for the overall timeline for the redesign, an issue essential to analyzing the plaintiffs’ motion to decouple the security redesign from the meaningful access redesign, see id. (“[T]he difference in costs between the two timelines. . . . is crucial to weighing the equities of the plaintiffs’ requested modification.”), the D.C. Circuit relied on a “working timeline” the defendant submitted to Congress, see id. at 366 (citing Letter from Leonard Olijar, Dir. of Bureau of Engraving and Printing, to Sen. Ron Wyden (Aug. 1, 2017)), and to this Court in its Eighteenth Status Report (Sept. 18, 2017), ECF No. 156, but the defendant has provided no updates to that timeline since 2017, aside from a change to the order in which bills will be redesigned, Nineteenth Status Report (Mar. 16, 2018) ¶ 4, ECF No. 159. Overall, the plaintiffs’ resistance to supplementing the record appears to
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relegate to the Court the task of obtaining any pertinent information relevant to “weighing the equities” to carry their burden. Am. Council of the Blind v. Mnuchin, 878 F.3d at 369. II. QUESTIONS TO PLAINTIFFS:
In light of these circumstances, the plaintiffs are directed to submit, by January 18, 2019, detailed responses to questions 1 through 12 below: (1) A key provision in the original injunction ordered the defendant to “take such steps as may be
required to provide meaningful access to United States currency for blind and other visually impaired persons . . . in connection with each denomination of currency, not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury.” Order, October 3, 2008, at 1. The plaintiffs are now seeking a fundamental modification of this term by asking the Court to decouple the meaningful access redesign from the security redesign that the defendant is statutorily obligated to undertake. See 12 U.S.C. § 418. At what point would the filing of a new lawsuit be more appropriate rather than a motion to modify the injunction, given the fundamental changes sought by the plaintiffs, the passage of time, new information available to both sides, and new technology? (2) Explain in detail any differences between the modifications to the injunction sought in the plaintiffs’ second motion, see Pls.’ Second Mot., ECF No. 142, and the current, pending motion, see Pls.’ Third Mot., ECF No. 160. (3) After obtaining a decision from the D.C. Circuit reversing and remanding this Court’s decision denying the plaintiffs’ second motion for modification of the injunction, why are the plaintiffs foregoing any remand proceedings, rendering the plaintiffs’ second motion moot, and opting instead to file a third renewed motion to modify the injunction, outside the boundaries of the mandate rule? In addition, explain precisely which modifications are currently being sought by the plaintiffs in the pending motion that would be outside the mandate rule from the D.C. Circuit?
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(4) The plaintiffs demand, in the third motion for modification of the injunction, that the defendant be required to provide meaningful access for the blind to the $10 bill by December 31, 2020 and to other denominations by December 31, 2026. Given the plaintiffs’ position that external currency readers and mobile apps currently fail to provide meaningful access, as well as the defendant’s explanation of the extensive research and testing necessary to redesign currency, see Def.’s Opp’n to Third Mot. at 8–9, do the plaintiffs concede that the only feasible way that the defendant could comply with the plaintiffs’ pending proposed order is to incorporate some form of RTF by those deadlines?
(5) How do the plaintiffs propose for the Court to consider “[a] more concrete estimate of the financial burden of incorporating a raised tactile feature,” as directed by the D.C. Circuit, American Council of the Blind v. Mnuchin, 878 F.3d at 369, including the difference in costs between a timeline based solely on incorporating RTF and a timeline coupling the incorporation of RTF with other necessary redesigns, id., when the defendant continues to state that the “exact costs [of decoupling the RTF provision from the next redesign] cannot be known until the Secretary identifies the best technological method for adding a tactile feature to the currency”? Def.’s Opp’n to Third Mot. at 4.
(6) Explain how the plaintiffs have met their burden of establishing that changed circumstances are significant enough to warrant relief, American Council of the Blind v. Mnuchin, 878 F.3d at 366– 37, when one circumstance is that the defendant’s development of RTF is not yet sufficiently advanced to meet the plaintiffs’ proposed timelines, or even to provide concrete estimates of the cost of modifying the injunction, see Def.’s Opp’n to Third Mot. at 18?
(7) The defendant has described numerous concerns about RTF, explaining that “many of the assumptions the Bureau made in 2010 are no longer valid.” Def.’s Supp. Status Report (Dec. 20, 2018) ¶ 13, ECF No. 169. Do the plaintiffs believe that the defendant should explore other,
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previously discarded options for providing meaningful access to currency, such as producing notes in different sizes? Would the plaintiffs support such a reevaluation even if this further delayed the development of accessible currency? (8) What is the plaintiffs’ position as to an acceptable accuracy rate for RTF? (9) The plaintiffs are critical of the defendant’s efforts to add larger, high-contrast numerals to bills as failing to provide meaningful access to currency for some vision-impaired persons. See Pls.’ Third Mot. at 31–33. Is the plaintiffs’ position that RTF, even with the flaws identified by the defendant, would address those concerns? (10) Do the plaintiffs take the position that any argument by the defendant regarding external currency readers and mobile apps already providing meaningful access to currency for persons who are blind or visually impaired, see Def.’s Opp’n to Third Mot. at 24–25, has been rejected and is foreclosed by the D.C. Circuit’s opinion in American Council of the Blind v. Mnuchin? See, e.g., 878 F.3d at 366 (“With the newest timeline [regarding the redesign of currency], the Secretary will be in violation of federal law for eight to twenty more years than it would have been had it met its expected timeline for currency redesigns when the injunction issued.”) (emphasis added); id. at 367 (“Under the injunction’s current terms, millions of visually impaired Americans who could have expected meaningful access to currency by 2018 must now wait until 2026 and beyond. In the meantime, only a fraction of them are helped by the other measures put in place by the Secretary.”) (emphasis added); id. at 368 (“The added financial burden of decoupling the timelines may very well render the Secretary’s ongoing violation of the Rehabilitation Act—which the parties reasonably expected to be cured in one decade but under the Secretary’s current timeline will stretch into a second decade, and most likely a third— equitable.”) (emphasis added).
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(11) Given that the defendant issued a notice of agency action and request for comments prior to adoption of the agency’s current, three-pronged strategy for providing meaningful access to currency for the blind and visually impaired, see Notices, Dep’t of the Treasury, 75 Fed. Reg. 28331-02 (May 20, 2010), would this same notice-and-comment procedure have to be followed for the defendant to change the three-pronged strategy for providing meaningful access to currency?
(12) If the defendant insists, based on internal and independent evaluations of available RTF and other technologies presented to this Court, that meeting the timelines in the plaintiffs’ proposed order would be infeasible or impossible, must the plaintiffs’ pending motion be denied?
III. QUESTIONS TO DEFENDANT The defendant is directed, within five business days of Congress appropriating funds for the
defendant, to submit responses to questions 13 through 28 below: (13) In the event that the plaintiffs’ proposed order is adopted, list—
a. for each U.S. currency denomination, how the schedule for introducing new bills would be affected;
b. the specific and potential estimated costs associated with: (i) redesigning, manufacturing and distributing the $10 bill with any new feature(s), including RTF, to provide meaningful access to currency for the blind and visually impaired, (ii) education, (iii) upgrading banking equipment hardware or software, (iv) testing costs, (v) costs to replace bills that wear down, and (vi) any other costs the defendant believes to be relevant;
c. the specific and potential estimated costs associated with: (i) redesigning, manufacturing and distributing the $5 bill, $20 bill, $50 bill and $100 bill, with any new feature(s), including RTF, to provide meaningful access to currency for the blind and visually impaired, (ii) education, (iii) upgrading banking equipment hardware or software, (iv)
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testing costs, (v) costs to replace bills that wear down, and (vi) any other costs the defendant believes to be relevant. (14) In the event that the plaintiffs’ proposed order is adopted, would the defendant be forced to prioritize a redesign incorporating RTF over the ongoing security redesign, and, if so, would this reprioritization jeopardize the security of U.S. currency in any way? Provide any details available regarding the costs to public and private entities of counterfeit bills. (15) In response to the plaintiffs’ pending, third motion to modify the injunction, the defendant resubmitted a Declaration from Michael Wash, ECF No. 164-1, with no updates since it was last submitted in 2016, see ECF No. 148-1, despite the D.C. Circuit’s holding that the declaration was “inadequate to fully and independently serve as the basis for [this Court’s] decision,” American Council of the Blind v. Mnuchin, 878 F.3d at 368, and that the costs cited in it “tell us nothing about the difference in costs between the two timelines. . . . [which] financial difference is crucial to weighing the equities of the plaintiffs’ requested modification, id. at 369. Please explain why this declaration should not be stricken from the record. (16) The defendant suggests that external currency readers and mobile apps available to the blind or visually impaired already provide meaningful access to currency. See Def.’s Opp’n to Third Mot. at 24–25. Given that the usage rate of external currency readers and mobile apps has not changed significantly in the past year, why is the defendant’s argument that meaningful access is already being provided not foreclosed by the D.C. Circuit’s opinion in American Council of the Blind v. Mnuchin, 878 F.3d 360, which included several statements indicating that the D.C. Circuit did not believe that currency readers and mobile apps fulfill the defendant’s obligation to provide meaningful access? See, e.g., id. at 366 (“With the newest timeline [regarding the redesign of currency], the Secretary will be in violation of federal law for eight to twenty more years than it would have been had it met its expected timeline for currency redesigns when the
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injunction issued.”) (emphasis added); id. at 367 (“Under the injunction’s current terms, millions of visually impaired Americans who could have expected meaningful access to currency by 2018 must now wait until 2026 and beyond. In the meantime, only a fraction of them are helped by the other measures put in place by the Secretary.”) (emphasis added); id. at 368 (“The added financial burden of decoupling the timelines may very well render the Secretary’s ongoing violation of the Rehabilitation Act—which the parties reasonably expected to be cured in one decade but under the Secretary’s current timeline will stretch into a second decade, and most likely a third—equitable.”) (emphasis added). (17) Given that the defendant issued a notice of agency action and request for comments prior to adoption of the current, three-pronged strategy for providing meaningful access to currency, see Notices, Dep’t of the Treasury, 75 Fed. Reg. 28331-02 (May 20, 2010), is the defendant required to follow this same notice-and-comment procedure to make any changes to this three-pronged strategy for providing meaningful access to currency to the blind and visually impaired? (18) The defendant has described numerous concerns about RTF, explaining that “many of the assumptions the Bureau made in 2010 are no longer valid.” Def.’s Supp. Status Report (Dec. 20, 2018) ¶ 13, ECF No. 169. Has the experience of developing and testing RTF led the defendant to conclude that other, previously discarded options for providing meaningful access to currency, such as producing notes in different sizes, should be re-evaluated for adoption? (19) Is the best accuracy rate for an RTF in testing environments 80 percent or 90 percent? Compare Decl. of Leonard R. Olijar ¶ 10, ECF No. 164-3, with Decl. of Michael Wash ¶ 3, ECF No. 164-1. (20) The plaintiffs are critical of the defendant’s efforts to add larger, high-contrast numerals to bills as failing to provide meaningful access to currency for some vision-impaired persons and urge that more be done to make bills meaningfully accessible to vision-impaired persons. See
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Pls.’ Third Mot. at 31–33. Does the defendant intend to address those concerns by making further changes to the numerals or to the coloring of bills as part of any upcoming redesign? (21) Clarify whether public and private bodies conduct extensive testing on each denomination when it is redesigned for security reasons, or whether only the first denomination with newly designed security features requires extensive testing, whereas testing for later denominations is generally simpler and less costly. (22) Clarify whether public and private bodies would need to conduct extensive testing on each denomination that incorporates RTF, or whether only the first denomination with RTF would require extensive testing, whereas testing for later denominations would be generally simpler and less costly. (23) The D.C. Circuit repeatedly emphasized that, to determine whether to modify the injunction, this Court needs “concrete estimates of the costs that matter,” American Council of the Blind v. Mnuchin, 878 F.3d at 371, that is, the difference between a timeline coupled to other security measures and one that is decoupled from any other redesign. Yet the defendant continues to state that the costs of “decoupling the provision of meaningful access from the next redesign . . . cannot be known until the Secretary identifies the best technological method for adding a tactile feature to the currency.” Def.’s Opp’n to Third Mot. at 4. Has the defendant (a) determined the best technological method for adding a tactile feature to currency?; (b) calculated more concrete estimates comparing the cost of adding an RTF, decoupled from any other redesign requirement, to the costs of combining RTF with the security redesign?; and (c) if the response to both (a) and (b) is no, estimated when answers may be provided to these questions? (24) Provide an estimate, with a detailed description of the assumptions about accuracy and durability, of how long it would take to introduce, with associated costs, a $10 bill with RTF for
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circulation, if no other security redesigns were included, even if that RTF were not as durable or effective as a later version might be. (25) What specifically is the harm, including any economic costs, of introducing an initial version of RTF on the $10 bill that may need adjustment to improve accuracy, durability, or other features before incorporation in other denominations? (26) Does any testing indicate whether RTF has any impact on the effectiveness of external currency readers or mobile apps to denominate currency? (27) Does the defendant contend that introduction of a $10 bill with RTF by December 31, 2020, or of other denominations of bills (aside from the $1 bill) with RTF by December 31, 2026 would be infeasible or impossible? If so, please detail the specific reasons supporting this contention, with citation to any up-to-date declarations or other evidence provided by the defendant to support each reason. (28) The defendant refers to the cost of public education campaigns, and the possibility that conducting campaigns for two redesigns in quick succession, one for RTF and one for security features, may create confusion. Def.’s Opp’n to Third Mot. at 16, 21. Provide historical data on the costs of past public education campaigns for currency redesigns, and explain how, if at all, a public education campaign for RTF would likely differ (in cost, scope, complexity, etc.) from those past campaigns.
For the foregoing reasons, it is hereby ORDERED that defendant’s Motion to Stay Proceedings in Light of Lapse of Appropriations is DENIED, without prejudice; and it is further ORDERED that the Motions Hearing scheduled for January 25, 2019 and any deadlines related to that Motions Hearing are VACATED; and it is further ORDERED that the plaintiffs are directed to submit, by January 18, 2019, responses to
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questions 1 through 12; and it is further ORDERED that the defendant is directed to submit, within five business days of Congress
appropriating funds for the defendant, responses to questions 13 through 28. SO ORDERED.

Date: January 9, 2019

_____________________________ BERYL A. HOWELL Chief Judge

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 Case 1:02-cv-00864-BAH Document 192 Filed 08/22/19 Page 1 of 77

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN COUNCIL OF THE BLIND, et

al.,

Plaintiffs,

Civil Action No. 02-864 (BAH)

v.

Chief Judge Beryl A. Howell

STEVEN T. MNUCHIN, Secretary of the Treasury,
Defendant.

MEMORANDUM OPINION The plaintiffs have, for the third time, moved to modify the injunction originally entered in this case in 2008, as relief for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by the defendant, the Secretary of the Treasury (“Treasury”). See Pls.’ Renewed Mot. & Mem. to Modify Injunction (“Pls.’ Third Mot.”), ECF No. 160. The original injunction ordered Treasury to “take such steps as may be required to provide meaningful access to United States currency for blind and other visually impaired persons, which steps shall be completed, in connection with each denomination of currency, not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury.” Injunction Order, October 3, 2008 (“Injunction Order”) ¶ 2, ECF No. 96. In 2016, citing Treasury’s delays in redesigning currency in order to accommodate “significant developments in counterfeiting technology,” see Def.’s Supp. Status Rpt. (Feb. 22, 2016) ¶ 5, ECF No. 139; Def.’s Supp. Status Rpt. (May 12, 2016) ¶ 1, ECF No. 141, the plaintiffs moved to modify the injunction to require Treasury to provide meaningful access to the $10 bill by December 31, 2020, and to other denominations that can be legally redesigned by December 31, 2026. See Pls.’ Second Mot. & Mem. to Modify

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Injunction (“Pls.’ Second Mot.”) at 4–5 & n.1, ECF No. 142.1 This Court denied that motion, Am. Council of the Blind v. Lew, No. 02-CV-00864 (BAH), 2017 WL 6271264, at *2 (D.D.C. Jan. 6, 2017), but the D.C. Circuit reversed and remanded, Am. Council of the Blind v. Mnuchin, 878 F.3d 360, 371 (D.C. Cir. 2017).2 In lieu of pursuing their second motion to modify the injunction on the limited issue requiring inquiry on remand, the plaintiffs filed a renewed motion to modify the injunction, mooting their second motion. See Jt. Status Rpt. & Stipulation dated Mar. 7, 2018 (“Mar. 2018 JSR”) ¶ 1, ECF No. 158 (“Upon the filing of plaintiffs’ renewed motion to modify, plaintiffs’ motion of June 6, 2016 [Pls.’ Second Mot.] shall be deemed denied as moot.”).3 The plaintiffs’ third motion seeks identical relief to their second motion: an order requiring meaningful access by the visually impaired to the $10 bill by December 31, 2020 and to other denominations that can be legally redesigned by December 31, 2026. Pls.’ Third Mot. at 4 & n.1.4 For the reasons explained below, that motion is denied. I. BACKGROUND
In 2002, the plaintiffs filed a lawsuit claiming that Treasury was violating the

1

The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately.

Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system.

2

On remand, the D.C. Circuit directed “the district court to better support its findings supporting its denial of

modified injunctive relief,” Am. Council of the Blind v. Mnuchin, 878 F.3d at 363, after concluding that this denial

failed to provide “adequate evidentiary support and reasoning,” id. at 371. Given this mandate to “better support

[this Court’s] findings,” id. at 363, and in the face of the parties’ denial of any need for an evidentiary hearing on

remand, see infra Section I.K, the Court has supplemented the record by ordering the parties to respond to a series of

questions focused on Treasury’s progress on compliance with its Rehabilitation Act obligations and the costs,

equities and feasibility of adopting the plaintiffs’ proposed modifications to the Injunction Order. See Order

Directing the Parties to Answer Questions, ECF No. 175. To ensure the completeness of the evidentiary support for

the findings made here, the parties’ responses to those questions are reproduced virtually in full in the footnotes

when the evidence or conclusions predicated on those responses are referenced in the text.

3

The plaintiffs note that the parties’ stipulation was never formally adopted in an order. See Pls.’ Answers

to Court’s Questions of Jan. 9, 2019 (“Pls.’ Answers”) (Question 3), ECF No. 176. Rather, in response to the

stipulation, the Court adopted the parties’ proposed schedule, which anticipated that the plaintiffs would file any

renewed motion to modify by May 8, 2018, and any motion to conduct discovery by July 24, 2018. See Min. Order

(Mar. 7, 2018). To the extent any further clarification is needed, the plaintiffs’ second motion, ECF No. 142, is

denied as moot in light of the plaintiffs’ third motion, ECF No. 160.

4

The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately.

Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system.

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Rehabilitation Act because U.S. currency was not meaningfully accessible to individuals with visual disabilities. See Compl. ¶ 1, ECF No. 1. This Court agreed, and the D.C. Circuit affirmed. See Am. Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 62 (D.D.C. 2006), aff’d, 525 F.3d 1256 (D.C. Cir. 2008). As noted, the 2008 Injunction Order required Treasury to “provide meaningful access to United States currency for blind and other visually impaired persons” within a time frame of “not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury after the entry of this order and judgment.” Injunction Order ¶ 2. At the time the Injunction Order was entered, the parties anticipated that the next redesign would occur between 2013 and 2018. Treasury now anticipates that a new $10 bill will not begin circulating until 2026, with subsequent denominations following at intervals of eighteen months to two years. Def.’s Answers to Court’s Questions of Jan. 9, 2019 (“Def.’s Answers”) (Question 13(a)), ECF No. 179.5 This delay, which was necessitated by “significant developments in counterfeiting technology,” Def.’s Supp. Status Rpt. (Feb. 22, 2016) ¶ 5, also reflects the complexity of designing currency with a tactile or other feature that is distinct to each denomination, durable, and accurately distinguishable over time by persons with visual impairments. The following sections detail the history of this case, including the negotiations

5

In response to the Court’s Question 13(a) (“In the event that the plaintiffs’ proposed order is adopted, list,

for each U.S. currency denomination, how the schedule for introducing new bills would be affected.”), Treasury

responded: “Any effort to pursue affixing a raised tactile feature (RTF) to the legacy $10 bill would divert

significant resources from [the Bureau of Engraving and Printing (“BEP”)] efforts to produce a more secure note by

2026. To accommodate the necessary testing (explained further below), it would delay the timeline for more secure

notes by at least two years and possibly more. The plan for the new family of notes is to introduce the $10 bill first

in 2026, with each additional denomination being introduced every 18 months to two years thereafter. Pushing back

the introduction of the first note by two years or more would result in all other denominations being delayed by a

similar amount of time.” Def.’s Answers (Question 13(a)). This current “plan” is consistent with information

provided by Treasury to this Court in September 2017, during the pendency of the appeal, about the agency’s

“working timeline” for currency redesign, which is “driven primarily by security,” including incorporation of RTF

in bill denominations, Def.’s Eighteenth Status Rpt. (Sept. 18, 2017), Att. 1, Letter from Leonard R. Olijar, Dir. of

Bureau of Engraving & Printing, to Sen. Ron Wyden (Aug. 1, 2017) (“Aug. 2017 Ltr. from BEP”) at 1–2, ECF No.

156-1, which information was acknowledged by the D.C. Circuit, see Am. Council of the Blind v. Mnuchin, 878 F.3d

at 366.

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leading to the original Injunction Order, status reports memorializing Treasury’s progress in complying with the Injunction Order, the arguments associated with and outcomes of the plaintiffs’ two prior motions to modify the Injunction Order, and the manner in which the record related to the plaintiffs’ third motion to modify the Injunction Order has developed.
A. Claims Resulting in Declaratory Judgment that Treasury is Violating the Rehabilitation Act
In 2002, the American Council of the Blind and two individual plaintiffs sued Treasury, alleging that the design of United States paper currency violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and seeking declaratory and injunctive relief. See Compl. ¶ 1. The plaintiffs alleged that individuals with visual impairments lacked meaningful access to currency because “U.S. banknotes are all identical in size and color, and virtually identical in design,” id. at 1, and that, “[a]s a result, individuals with visual disabilities suffer needless impediments in purchasing groceries, transportation, and a multitude of other goods and services,” id. In 2006, the then-presiding Judge entered declaratory judgment for the plaintiffs, holding that Treasury violated Section 504 by “fail[ing] to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals.” Am. Council of the Blind v. Paulson, 463 F. Supp. 2d at 62.6
The Court paused, however, at fashioning the appropriate remedy. The plaintiffs sought three types of injunctive relief in their First Amended Complaint, which relief was discussed by the Court in its Memorandum Opinion, see id.: (1) “a permanent injunction prohibiting [Treasury] from continuing to manufacture banknotes in the present manner, the effect of which

6

Treasury’s motion for summary judgment had earlier been denied because the record lacked factual

development, and the agency’s motion to dismiss had been denied, except with respect to dismissing the Treasurer

of the United States, because: (1) Treasury’s discretion over the design of currency did not preclude application of

the Rehabilitation Act; (2) plaintiffs had stated a claim under the Rehabilitation Act; and (3) exhaustion of

administrative remedies would be futile. See Am. Council of the Blind v. Snow, 311 F. Supp. 2d 86, 87–90 (D.D.C.

2004).

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is to preclude millions of Americans from participating in the essential functions of everyday life;” (2) “a permanent injunction requiring that banknotes be designed to incorporate features which will make them accessible to people with blindness and other vision impairments; and in conjunction therewith order that [Treasury] provide for the approval of the Court a detailed corrective action plan as to the features which it will incorporate into the design of U.S. banknotes to accomplish such purpose,” which corrective action plan must include a “schedule” for adding design features to assist individuals with visual disabilities other than total blindness, and “projected implementation dates, with appropriate milestones” for the incorporation of features designed to assist persons who are totally blind; and (3) “a permanent injunction mandating that [Treasury] diligently pursue the development of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes.” First Am. Compl. (“FAC”) at 35–36, ECF No. 53. The Court declined to grant any of these requested forms of injunctive relief, stating that “[t]his Court has neither the expertise, nor, I believe, the power, to choose among the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law.” Am. Council of the Blind v. Paulson, 463 F. Supp. 2d at 62. Rather, the Court chose to “set a status conference for the purpose of discussing remedy,” unless Treasury filed an interlocutory appeal. Id. To that end, the Court certified that its order “involves a controlling question of law as to which there is substantial ground for difference of opinion,” such that “an immediate appeal . . . may materially advance the ultimate termination of this litigation.” Id. at 62–63.
B. D.C. Circuit Affirms that Treasury is Violating the Rehabilitation Act But Declines to Address Appropriate Remedy
Accepting review of Treasury’s interlocutory appeal, a divided panel of the D.C. Circuit
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affirmed that the failure to design and issue paper currency that is readily distinguishable to the visually impaired violates Section 504 of the Rehabilitation Act but remanded “for the district court to address the [plaintiffs’] request for injunctive relief.” Am. Council of the Blind v. Paulson, 525 F.3d at 1259, 1265, 1274. Agreeing that Treasury “has discretion to choose from a range of accommodations” to provide meaningful access to paper currency, the Court also declined to direct the implementation of the injunctive relief sought by the plaintiffs. Id. at 1271. Instead, the Court concluded that Treasury’s “failure to demonstrate that all accommodations found by the district court to be facially reasonable would pose an undue burden presents no occasion for us to address any particular accommodation.” Id. The dissenting panel member opined that the interlocutory appeal was premature because a material fact remained disputed as to whether an “effective accommodation [existed that] the government could implement without imposing an ‘undue burden’ on itself or the private sector.” Id. at 1275–76 (Randolph, J., dissenting) (emphasis in original) (footnote omitted) (observing that the majority does “not know what if anything should be implemented as an accommodation and neither does the American Council of the Blind, the Treasury, the district court, or the National Federation of the Blind (who supports Treasury)” (footnote omitted)).
C. 2008 Injunction Order Couples Security Redesign and Meaningful Access Redesign Without Any Deadlines
On remand to this Court, the parties turned their attention to remedies, and whether Treasury should be held to any particular timeline became a point of contention. On August 29, 2008, Treasury summarized its “process of determining how best to provide . . . meaningful access” and urged that “[i]t is in the interest of all concerned to permit . . . Treasury to gather the necessary data and complete its analysis to ensure that the method employed to provide . . . meaningful access is effective in achieving that objective without undermining the Secretary’s
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critical efforts to prevent counterfeiting and to ensure that United States currency remains a reliable, durable, and usable medium of exchange for the public.” Def.’s Status Conference Stmt. ¶¶ 2, 9, ECF No. 80. Treasury suggested that its process would “allow the Court to have the benefit of the Secretary’s factual investigation as well as the Department’s experience and expertise in appropriately resolving the competing demands related to currency design.” Id. ¶ 9.
The plaintiffs disagreed with Treasury’s proposed process because Treasury “explicitly refused to provide Plaintiffs with any estimated time frames for completion of” its process and “therefore . . . the issue of time frames is [now] appropriate for discussion.” Pls.’ Status Conference Stmt. ¶ 1, ECF No. 81. The plaintiffs, alternatively, proposed that the Court and the plaintiffs be deeply engaged in any process undertaken by Treasury in redesigning U.S. currency. Specifically, the plaintiffs requested that the Court “convene a status conference to discuss the timeframes for completion of [the process],” with Treasury “provid[ing] estimated timeframes so as to permit monitoring by the Court,” with such monitoring to include ongoing status reports if Treasury anticipated missing any deadline. See Pls.’ Proposed Remedial Order ¶¶ 3, 5, 9, ECF No. 81-1. The plaintiffs also sought quarterly progress reports, with the Court required to “accept and consider comments from Plaintiffs” following each report, as well as quarterly meetings between the plaintiffs and Treasury to discuss progress and give the plaintiffs further opportunity to share comments. Id. ¶¶ 10–12.
At a status conference convened on September 4, 2008, Min. Entry (Sept. 4, 2008), the plaintiffs’ request for close judicial monitoring of Treasury was rejected, with the Court explaining it “will not, cannot, [and does not] want to micromanage this process; nor do I think, with all deference to the [plaintiffs], that [they] ha[ve] won a seat at the Treasury table that designs the bills.” Transcript of Hearing (Sept. 4, 2008) (“Sept. 2008 H’rg Tr.”) at 13:4–7, ECF
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No. 113-2. At the same time, the Court expressed concern that Treasury’s preferred proposal appeared “open-ended as to time.” Id. at 3:11–12. Treasury responded that in order to comply with its “statutory mandate . . . to produce currency in the best manner to guard against counterfeiting,” and “because . . . counterfeiters are progressing so quickly in their technology,” “the standard” is to produce new currency designs every seven to ten years, id. at 10:5–12, and that Treasury planned to “fold some anti-counterfeiting changes into . . . changes made in relation to . . . this case,” id. at 10:15–17. This plan prompted the Court to observe that “a reasonable provision of an order going forward that is not a micromanagement order” would be to couple any ongoing security redesign with an accessibility redesign. Id. at 13:15–22. But see id. at 13:15–17 (Court stating that Treasury “requires new currency to be issued every seven to 10 years,” when the statute contains no hard deadlines).7 Based on this understanding—with an added caution from Treasury that the agency “has to have the ability to respond to changes, to developments and technology on the side of the counterfeiters,” id. at 20:11–13—the parties were directed to provide status reports every 180 days and to submit a new proposed order “incorporating what [the Court hopes] can be understood from the conversation [at the Status Conference].” See id. at 16:23–17:2, 22:10–15; Min. Entry (Sept. 4, 2008).
Accordingly, Treasury submitted two versions of a proposed order. See Def.’s Mem. Regarding Final Order & Judgment (“Def.’s Mem. on Final Order”) at 2–3, ECF No. 88. In Treasury’s preferred version, the agency proposed that “injunctive relief is neither necessary nor appropriate,” and suggested that only a “report on progress in providing meaningful access to [] currency” should be required. Id. at 2. In the alternative version, Treasury proposed that a

7

The statutory mandate requires that, “[i]n order to furnish suitable notes for circulation as Federal reserve

notes, the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against

counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of [each

denomination].” 12 U.S.C. § 418.

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meaningful access redesign be required in connection with the next redesign of each denomination of currency. Id. at 7–8. Treasury cautioned that “[t]his does not mean, however, that redesigning the currency will necessarily be chosen as the means to comply with the Court’s declaratory judgment. . . . [because Treasury is] considering all potential methods of providing meaningful access to [] currency.” Id. at 8. Indeed, the plaintiffs’ original injunctive relief request sought, inter alia, development and deployment by Treasury “of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes.” FAC at 36.
The Injunction Order adopted by the Court largely mirrored Treasury’s less preferred, alternative proposal, with only slight revisions. See Injunction Order ¶ 2. Treasury’s proposed language exempting the $1 bill and the upcoming version of the $100 bill from the accessibility redesign requirement, see id. ¶ 3, as well as language requiring Treasury to provide status reports every six months, id. ¶ 4, were also adopted.8 Significantly, no specific deadlines for any redesign were included. Indeed, while the plaintiffs unsuccessfully urged that reference to “scheduled” redesigns, based on Treasury’s history of redesigning currency every seven to ten years, be expressly included in the Injunction Order, see Pls.’ Resp. to Def.’s Mem. on Final Order at 7 n.3, ECF No. 89, they acknowledged the risk that if deadlines were incorporated as they initially requested, Treasury “will use court mandated time frames as a justification for a remedy which is based on external note tellers,” whereas “[r]edesigning the currency may

8

The 2008 Injunction Order did not include the $1 bill because Congress prohibited the Secretary from

redesigning the $1 bill. See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sec. 6, div. D, tit. I, § 113.

This prohibition remains in effect. See Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, sec. 4, div. D, tit.

I, § 116. The $100 bill was not included because a new version was shortly expected to enter circulation. See U.S.

DEP’T OF THE TREASURY, BUREAU OF ENGRAVING & PRINTING, U.S. CURRENCY: HISTORY OF THE BEP AND U.S.

CURRENCY, https://www.moneyfactory.gov/uscurrency/history.html (last visited August 22, 2019). The most recent

redesigns for each denomination are as follows: a new $20 bill began circulating on October 9, 2003; a new $50 bill

began circulating on September 28, 2004; a new $10 bill began circulating on March 2, 2006; a new $5 bill began

circulating on March 13, 2008; and a new $100 bill began circulating on October 8, 2013. Id.

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require more time than would the furnishing of external note tellers,” id. at 6. See also Am. Council of the Blind v. Lew, 2017 WL 6271264, at *1 (noting that the language coupling the two redesigns was “based on a draft of a remedial order proposed by [Treasury], but the plaintiffs raised no objection to this particular provision, nor did they suggest a specific timeframe be designated”).
The Memorandum Opinion accompanying the order did “not question the Treasury Department’s commitment to achieving compliance,” and also commonsensically noted that “the best-laid plans can be derailed by shifting priorities, limited resources, and the other vagaries of bureaucratic action.” Am. Council of the Blind v. Paulson, 581 F. Supp. 2d 1, 2 (D.D.C. 2008). Acknowledging that the Court “has neither the expertise, nor . . . the power[] to choose among the feasible alternatives, approve any specific design change, or otherwise . . . dictate to the Secretary of the Treasury how he can come into compliance with the law,” the Court maintained “the expertise and the authority to create goals and to hold the government to those goals.” Id. (internal quotation marks and citation omitted). While Treasury had requested the right to delay the issuance of accessible currency if a redesign was “urgently needed to counter a threat or threats of counterfeiting,” Def.’s Mem. on Final Order at 9, this “carte blanche to delay the issuance of accessible currency” was denied in light of the agency’s ability to “file a specific request, properly supported” if Treasury “needs relief from the injunction for that reason (or any reason).” Am. Council of the Blind v. Paulson, 581 F. Supp. 2d at 2.
This background to the original Injunction Order illustrates that the plaintiffs were aware at the time of adoption that any redesign of currency was not on any precise schedule. See Pls.’ Resp. to Def.’s Mem. on Final Order at 7 n.3 (“Defendant is correct in stating that major redesigns are not on any ‘precise schedule.’” (emphasis in original)). The plaintiffs
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intermittently requested that Treasury be held to more specific deadlines, but also recognized both the difficulty and drawbacks of attempting to set a deadline for the complicated goal of achieving meaningful access to currency. Id. at 6. Their request for more specific timeframes was, accordingly, considered but overruled. At its core, the 2008 Injunction Order acknowledged that Treasury was subject to two legal requirements: an obligation to ensure that U.S. currency is meaningfully accessible to the visually impaired, and an over-arching obligation to ensure that U.S. currency is secure. The 2008 Injunction Order instructed Treasury to accomplish both redesigns simultaneously, but recognized that the means of complying with both legal obligations were subject to some degree of uncertainty. This order has remained in place, without modification, for more than a decade—a period marked by constructive attention to the accessibility issue by Treasury as well as adoption of a number of steps to make U.S. currency more accessible to the visually impaired. See Am. Council of the Blind v. Mnuchin, 878 F.3d at 364–65 (recognizing that “[s]ince 2011, the Bureau [of Engraving and Printing] has produced tangible results” and noting “all denominations include large numerals and some denominations . . . include high-contrast numerals. . . . [the Bureau] created and produced free currency readers. . . . [and] also developed free currency-reading applications for mobile phones”).
D. Treasury Adopts a Three-Pronged Approach to Providing Meaningful Access to Currency and Submits Regular Status Reports
Over the next three and a half years, between October 3, 2008 and June 4, 2012, Treasury submitted eight status reports. Each report detailed the steps Treasury took to gather data about the demographics of visually impaired persons, conduct focus groups, and perform “usability studies” in which “blind and other visually impaired individuals in all age categories . . . used various technologies, including foreign currency with tactile features, currency with large print
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numerals, different-sized currency, currency with varying color and contrast features, currency readers, and cell phone technology.” See Def.’s First Status Rpt. (Feb. 27, 2009) ¶ 2, ECF No. 102.
Following this course of study, Treasury published, in the Federal Register, a threepronged approach proposed by the Bureau of Engraving and Printing (“BEP”) to provide meaningful access to currency by: (1) adding a raised tactile feature (“RTF”) to bills so that visually impaired individuals could differentiate denominations by touch; (2) continuing to add colors and large, high-contrast numerals to bills; and (3) implementing a supplemental currencyreader distribution program. See Meaningful Access to United States Currency for Blind and Visually Impaired Persons, 75 Fed. Reg. 28331-02 (proposed May 20, 2010); see also Def.’s Fourth Status Rpt. ¶ 1 (Sept. 16, 2010), ECF No. 106.9 On May 31, 2011, following public comment, the Secretary of the Treasury approved this three-pronged approach. See Def.’s Sixth Status Rpt. (Sept. 16, 2011) ¶ 2, ECF No. 108. Treasury noted that “[d]evelopment of the most appropriate tactile feature is expected to require a significant amount of time,” and it “has not yet established a timetable for the next currency redesign.” Id. ¶ 3. Regardless, Treasury indicated that “[d]evelopment of an appropriate tactile feature is a priority project at the BEP, which is currently conducting a number of feasibility studies on multiple technologies.” Def.’s Seventh Status Rpt. (Mar. 16, 2012) ¶ 2, ECF No. 109.
On May 21, 2012, Treasury was “directed to file an additional status report, by June 4, 2012, explaining . . . when [it] anticipates that it will be in full compliance with the terms of the

9

Currency readers are external devices that scan and announce (through voice, noise, or vibrations) the

denomination of currency; Treasury provides currency readers to visually impaired and blind individuals at no cost.

See Def.’s Fourth Status Rpt. (Sept. 16, 2010) ¶ 1; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-14-823, U.S.

CURRENCY: READER PROGRAM SHOULD BE EVALUATED WHILE OTHER ACCESSIBILITY FEATURES FOR VISUALLY

IMPAIRED PERSONS ARE DEVELOPED (2014) (“2014 GAO Rpt.”) at 13–14; U.S. DEP’T OF THE TREASURY, BUREAU

OF ENGRAVING & PRINTING, MEANINGFUL ACCESS PROGRAM: U.S. CURRENCY READER PROGRAM,

https://www.moneyfactory.gov/uscurrencyreaderpgm.html (last visited August 22, 2019).

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[Injunction Order], and whether the obligation to file status reports every six months should be modified in any way.” Min. Order (May 21, 2012).10 Treasury reiterated that its “goal is to redesign each denomination of currency every seven to ten years, primarily in furtherance of the statutory mandate to produce currency ‘in the best manner to guard against counterfeits and fraudulent alterations.’” Def.’s Supp. Status Rpt. (June 4, 2012) ¶ 2, ECF No. 111 (quoting 12 U.S.C. § 418). Noting that, as of 2012, Treasury had “not yet established a timetable for the next currency redesign,” id. ¶ 4, the agency further observed that as it “continues to develop the tactile feature to be used, [Treasury] is unlikely to have much information to report toward that end until development of the specific feature is completed,” id. ¶ 7. Consequently, Treasury recommended that its reporting obligations be reduced to once every twelve months, id. ¶ 9, which recommendation was opposed by plaintiffs, see Pls.’ Resp. to Def.’s Supp. Status Rpt. (June 2012) at 11–12, ECF No. 112, and not adopted by the Court.
E. Plaintiffs’ First Motion to Modify the Injunction is Denied Shortly thereafter, on June 14, 2012, in a motion that was identical to, and filed on the same day as, their response to Treasury’s supplemental status report, the plaintiffs filed their first motion to modify the Injunction Order. See Pls.’ First Motion to Modify the Injunction Order (“Pls.’ First Mot.”), ECF No. 113.11 The plaintiffs contended that Treasury’s “failure to advise this court of even an anticipated date by which [it] will come into compliance with the law clearly demonstrates the need for more intrusive judicial supervision,” id. at 6, and that “it is now clear that the assumed contingency [of a seven- to ten-year period for redesigning currency] will not materialize, id. at 8. See also Pls.’ Reply in Supp. of First Mot. at 7, ECF No. 120 (“The

10

On March 21, 2012, following the retirement of Judge James Robertson, this case was reassigned to the

undersigned Judge. See Reassignment of Civil Case, ECF No. 110.

11

The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately.

Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system.

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intended result of [the Injunction Order] has been thwarted because the expectation of issuing redesigned currency every [seven to ten] years has not materialized. These changed circumstances warrant modification of the decree.”).
As relief, the plaintiffs “request[ed] that this Court mandate that the Secretary, within the next 60 days, furnish a detailed implementation plan setting forth the specific steps which will be required to come into compliance with the law, and the anticipated dates by which each of those steps will be completed” and that Treasury be ordered to “come into compliance with Section 504 by the earlier of the (a) dates set forth in [that] detailed implementation schedule . . . or (b) the date when a redesign of that denomination is next approved by the Secretary of the Treasury.” Pls.’ First Mot. at 11–12 (emphasis in original). In particular, the plaintiffs wanted the 2008 Injunction Order modified to incorporate the three-pronged strategy Treasury adopted in 2011, which specified that Treasury would add an RTF and high-contrast numerals to bills and would distribute currency readers, id. at 12–14; see supra Section I.D, and a further modification requiring “either the Secretary of the Treasury, the Director of the BEP, or one of their principal deputies, on a non-delegable basis,” to report quarterly on the agency’s progress, Pls.’ First Mot. at 15–16.
Treasury opposed the plaintiffs’ proposed modifications because the plaintiffs had failed to show that “extraordinary circumstances” justified modifying the injunction, under Federal Rule of Civil Procedure 60(b)(6). Def.’s Opp’n to Pls.’ First Mot. at 6, ECF No. 115.12 First, Treasury noted that “plaintiffs’ motion seeks to relitigate proposed provisions that this Court rejected in entering its [Injunction Order],” id. at 7, including by resubmitting evidence

12

The plaintiffs disputed the applicability of Rule 60(b)(6), arguing that their motion must be analyzed under

Rule 60(b)(5) or the Court’s inherent authority to strengthen an injunction. Pls.’ Reply in Supp. of First Mot. to

Modify at 4–6.

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concerning Canadian currency that the “Court was fully aware of . . . before entering the current judgment,” id. at 8. Second, Treasury argued that the “plaintiffs have presented no valid reason to alter the Court’s judgment by disconnecting assistance for the blind and visually impaired from the timing of the next redesign for purposes of counterfeit deterrence.” Id. at 9. Additionally, Treasury posited that “‘a detailed implementation plan with anticipated dates’ would be unworkable and would unduly intrude into the Secretary’s discretion in designing the currency.” Id. at 9–10. Further, Treasury had “encountered significant challenges with the $100 bill. . . . [because] [s]everal new anti-counterfeiting features and other advanced features in the redesigned $100 note subsequently caused significant manufacturing issues that the BEP did not foresee.” Id. at 10–11 (citation omitted). In light of these changes, Treasury argued that “the lapse of the [seven- to ten-] year period since the last redesign does not affect the validity of the [Injunction Order].” Id. at 11 (footnote omitted).
In rebutting the plaintiffs’ call for a detailed implementation plan, Treasury highlighted the fact that
redesigning the currency, especially to include a tactile feature, is a complex, multistep process involving many different entities, including the BEP and the Department of the Treasury, the Federal Reserve Board of Governors, the Currency Technology Office of the Federal Reserve System, and the U.S. Secret Service []. Completing this process successfully also requires balancing many considerations, including the needs of blind and other visually impaired persons; the efficiency and economy of the manufacturing process; the needs of the Federal Reserve System as to durability, usability, and consistency; the needs of currency users and the banknote processing community; and the statutory mandate to produce currency in the best manner to guard against counterfeiting []. Id. at 12–13 (internal citations and quotation marks omitted). Thus, Treasury posited that “[i]ncorporating a ‘detailed . . . plan with anticipated dates’ would inevitably lead to judicial micromanagement involving such mundane matters as why a given meeting among the various entities had to be rescheduled.” Id. at 13 (alterations in original).
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Treasury also vigorously opposed the plaintiffs’ request to incorporate the agency’s 2010 three-pronged plan for coming into compliance with Section 504 into the Injunction Order. Treasury argued that the existence of tactile features on other currencies had been studied but “does not mean that a satisfactory tactile feature can easily be included on U.S. currency,” id. at 12 (emphasis in original), and, further, that “incorporating [the Secretary’s] decision [to adopt the three-pronged plan] into a judgment of this Court would necessarily convert it into the Court’s decision. . . . [so] [t]he Secretary would no longer have discretion regarding the design of currency,” id. at 15 (emphasis in original). Moreover, no Court had ever held “that the Rehabilitation Act requires the Secretary to undertake all three of the methods he has chosen to assist the blind and visually impaired,” yet incorporating the three-pronged approach “would inaccurately connote that all three of the[] [prongs] are required by the Rehabilitation Act.” Id. Finally, Treasury urged rejection of plaintiffs’ “overreaching demand for the Secretary of the Treasury or other high official to sign a report every three months,” particularly since the agency is “proceeding apace to comply with this Court’s judgment.” Id. at 16.
The plaintiffs’ first motion to modify the Injunction Order was denied without prejudice on the grounds that “the plaintiffs have not shown any extraordinary circumstances justifying a change in the existing semi-annual report obligation, or any other amendment of Judge Robertson’s [Injunction Order].” Order dated Aug. 15, 2012 at 1, ECF No. 121 (internal citations, alterations, and quotation marks omitted). Treasury was ordered to “continue to file semi-annual reports,” “work diligently and expeditiously to fulfill its obligations under the [Injunction Order],” and “promptly inform the Court of any additional major delays in implementing the next major currency redesign—in supplementary updates to the semi-annual reports if necessary—and be as precise as possible in its semi-annual reports about the timeline
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for fulfilling its obligations under the [Injunction Order].” Id. at 1–2. F. Treasury Anticipates that RTF Bills will Begin Circulating in 2020, Although RTF Testing is Slightly Delayed Following the denial of the plaintiffs’ first motion to modify the Injunction Order,
Treasury continued its efforts to test RTF and to promote currency readers. Over the next three years, between August 15, 2012 and September 16, 2015, Treasury submitted nine status reports and one White Paper and began projecting that RTF bills would begin circulating in 2020. In its ninth status report, Treasury indicated that three different RTF application methods had been tested and one eliminated, Def.’s Ninth Status Rpt. (Mar. 18, 2013) ¶ 2, ECF No. 123, and that the agency continued to make progress in implementing its currency reader program and developing mobile applications for scanning currency, id. ¶¶ 7, 8. Treasury also, in 2013, provided a “White Paper Regarding Meaningful Access to U.S. Currency for Blind and Visually Impaired Individuals” which BEP submitted to the Senate Committee on Appropriations on June 27, 2013. See Def.’s Supp. Status Rpt. (July 3, 2013), ECF No. 124; id., Att. 1, White Paper Regarding Meaningful Access (“2013 White Paper), ECF No. 124-1. This White Paper was the first time Treasury projected that “the first redesigned denomination containing a tactile feature, an improved large, high-contrast numeral, and new security features” would be released for circulation in 2020, with the $10 bill predicted to be the first new note circulated based on a security analysis and specific attributes of that bill. 2013 White Paper at 3–4 (“The $10 note was . . . selected because it is a transactional note used frequently in commerce and it has a low production volume, which will allow for the smoothest transition of a new complex design to manufacturing.”). Treasury cautioned, however, that this projection “depends on much more than just the successful design and integration of a tactile feature. The release date is also dependent on technology/security feature development, production issues, and other
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unanticipated developments.” Id. at 3. With regards to the RTF method, Treasury discussed efforts to test “for durability and
producibility, features using special inks and other materials applied to the surface of the substrate, features embedded into the substrate, features that involve alterations to the substrate, and features using intaglio print techniques,” id. at 6 (footnote omitted), with intaglio defined as “a printing technique in which an image is incised into a surface and the incised lines hold the ink for transfer to the substrate under pressure,” id. at 6 n.4. “BEP chose not to directly adopt tactile features used by other countries given the higher durability requirements for the worldwide circulation of Federal Reserve notes and the extended life of those notes in circulation.” Id. at 6. To assess the needs of visually impaired individuals, Treasury engaged in a number of community outreach and research efforts, including usability and acuity studies, which “involve asking users (blind and other visually impaired persons) to interact with various potential tactile features,” Def.’s Tenth Status Rpt. (Sept. 16, 2013) ¶ 2, ECF No. 125, hosting a forum on incorporation of an RTF, id. ¶ 3, and meeting with “representatives of eighteen domestic and international cash handling equipment manufacturers,” id. ¶ 4.
In September 2014, Treasury indicated that “[r]ecent events have affected some of the interim benchmark dates in the development of a tactile feature,” because a subcommittee “declined to approve narrowing the field [of RTF technologies] to the single recommended technology.” Def.’s Twelfth Status Rpt. (Sept. 16, 2014) ¶ 3, ECF No. 127. Shortly after this report, Treasury submitted a copy of the U.S. Government Accountability Office’s report to Congressional Committees on the U.S currency reader program. Def.’s Notice of Filing, Att. 1, 2014 GAO Rpt., ECF No. 129-1. This report found that “BEP’s plans to evaluate the effectiveness of [its] new [currency reader] program are incomplete, and without a complete
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evaluation, BEP cannot determine the program’s effectiveness.” 2014 GAO Rpt. at “GAO Highlights”. Acknowledging that BEP has “[m]ade limited progress in developing a raised tactile feature,” the GAO report noted that development of an RTF was “over a year behind schedule,” id., “the Federal Reserve has raised concerns about” “the potential cost impact of a tactile feature and whether the extent of technological changes since the [Injunction Order] could provide alternative options to [the three-pronged approach].” Id. at 23. Thus, “there was a discussion of the option to provide access to currency without adding a tactile feature, [although] no decision has been made.” Id. at 23–24. The GAO noted the importance of the currency reader program in serving as “an effective interim step to provide access to currency for visually impaired persons” as “[e]ven when a tactile feature is introduced, notes with a tactile feature will co-circulate with notes that do not have a tactile feature.” Id. at 24.
In response to Treasury’s September 2014 Status Report, the plaintiffs requested that additional information be ordered produced by Treasury since the Secretary’s September 2014 Status Report “fail[ed] to adequately explain the impact of the . . . delay in approving the application method to be used in the manufacture of a tactile feature,” and raised concern that Treasury’s “representation . . . that the BEP remains on target for circulating accessible currency by 2020 appears to be both inaccurate and misleading.” Pls.’ Mot. for Order & Mem. in Supp. at 3, ECF No. 128.13 “Indeed, based upon the prior testimony of BEP’s officials, the reengineering process which will be required to provide the Secretary with the capability to manufacture a tactile feature will likely take at least five years from the date of final approval of the application materials and methods to be used.” Id. at 7–8 (citing declarations to this effect). The plaintiffs pointed to the 2013 White Paper, which specified “nine interim steps, with anticipated dates of

13

The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately.

Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system.

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completion for each step,” and argued that the agency’s incorporation of this White Paper into its July 2013 Status report “necessarily imposes upon the Secretary a concomitant obligation to keep that schedule up to date.” Pls.’ Reply in Supp. of Mot. for Order at 2, ECF No. 131. The plaintiffs also called attention to Treasury’s failure to mention “the highly significant fact that the Federal Reserve has expressed significant reservations pertaining to the inclusion of a tactile feature, or that discussions are ongoing between the Federal Reserve and the BEP which may result in the elimination of that feature.” Id. at 6.
Treasury, however, reiterated that “[d]espite the concerns expressed by the Federal Reserve, [Treasury] remains committed to the existing three-pronged plan for complying with [the Injunction Order]. Def.’s Surreply in Opp’n to Pls.’ Mot. for Order at 1, ECF No. 133. The plaintiffs’ motion for an order was denied because “although recent events have affected some of the interim benchmark dates in the development of a tactile feature, [Treasury] does not believe that those events will impact the target date for the ultimate production of redesigned currency with a tactile feature” and although the plaintiffs’ “motion requested additional information regarding the reliability of this statement in light of the recent events, . . . [Treasury] provided such information in the [2014] GAO Report.” Min. Order (Nov. 3, 2014) (internal quotation marks, alterations, and citations omitted). “Nevertheless, the Court remind[ed] [Treasury] of its obligations to ‘be as precise as possible in its semi-annual reports about the timeline for fulfilling its obligations’” including by reporting major delays. Id. (quoting Order dated Aug. 15, 2012).
Treasury continued to test various RTF application methods, including by submitting three versions to “high-speed cash machine testing.” Def.’s Fourteenth Status Rpt. (Sept. 16, 2015) ¶ 2, ECF No. 138. As a result of this testing, Treasury eliminated one RTF application method, and began to focus on the two remaining ones: intaglio, which uses engraved plates and
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a high-pressure printing press to force paper into an engraved plate and create an RTF, and coated-embossed, a process in which a coating is applied to the location of the RTF, then matching dies are pressed together on either side of the note to create the feature. See id.; Def.’s Supp. Status Rpt. (Dec. 20, 2018) ¶ 6, ECF No. 169 (explaining these two processes more fully). Treasury planned to print six samples incorporating each of the two RTF application methods for testing in November 2015, including testing by Banknote Equipment Manufacturers, a group that “produce[s] a variety of devices that process U.S. currency.” Def.’s Fourteenth Status Rpt. (Sept. 16, 2015) ¶ 3. Further large-group acuity testing was scheduled for April 2016, after which point Treasury anticipated that the final RTF application method would be selected. Id. ¶ 4. Based on this schedule, Treasury’s “target date for producing currency with a tactile feature remain[ed] the year 2020.” Id.
G. New Counterfeiting Technology Delays Security Redesign As Well As Meaningful Access Redesign
Five months later, however, in February 2016, Treasury submitted notice “of developments that have recently occurred in the timing of the next redesign of U.S. currency” and “will necessarily affect when BEP begins producing currency with a tactile feature, for reasons unrelated to the development of such feature.” Def.’s Supp. Status Rpt. (Feb. 22, 2016) ¶ 2. In particular, Treasury had “recently learned of significant developments in counterfeiting technology that bear upon the long-term effectiveness of the security features which were anticipated for the new $10 note.” Id. ¶ 5. Thus, “new, additional security features must be created for the next redesign of the currency.” Id. “The research and development necessary to create these new features will require a significant amount of time, thus delaying the development and production of the next redesign beyond the year 2020.” Id. (emphasis added). Although Treasury predicted that it could provide a new target date “within the next couple of
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months,” it cautioned that “because this [redesign] effort will require innovation and invention, the target date will reflect significant assumptions.” Id. ¶ 6. At the same time, Treasury “continues to expect that [RTF] will be ready for incorporation into the next redesign.” Id. ¶ 7. Further, currency reader programs and mobile applications “will continue to be offered as the BEP develops the new anti-counterfeiting features that have become necessary to keep the nation’s currency secure.” Id. ¶ 8.
In May 2016, Treasury explained that, in light of the redesign delay necessitated by “significant developments in counterfeiting technology,” Def.’s Supp. Status Rpt. (May 12, 2016) ¶ 1, BEP was working closely with the Federal Reserve “to accelerate work on the next family of notes with the aim that they circulate as quickly as possible, consistent with security requirements,” id. ¶ 2. Treasury further advised that BEP “anticipates that the first notes incorporating the new security features will be ready for production no later than 2026,” id., although “[t]his timeline is subject to revision based on a variety of factors, most notably security concerns and the pace of technological advancements,” id.
H. Plaintiffs’ Second Motion to Modify the Injunction is Denied Treasury’s announcement that the security and meaningful access redesigns would be delayed prompted the plaintiffs to file their second motion to modify the injunction. As the plaintiffs noted, had the seven- to ten-year “goal” of security redesigns been met, “the $20 note would have been redesigned between 2010–2013, the $50 note between 2011–2014, the $10 note between 2013–2016, and the $5 note between 2015–2018. The Secretary has now furnished a new estimated date of 2026 to redesign the $10 note, and has not provided any estimated dates for redesign of the remaining denominations.” Pls.’ Second Mot. at 3. “The magnitude of the delays in this case,” according to the plaintiffs, “clearly constitutes a changed circumstance
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warranting modification of the [Injunction Order]” because its “intended result . . . has been thwarted.” Id. at 14. Specifically, the plaintiffs now sought to “set a deadline of December 31, 2020” to provide meaningful access to the $10 bill, and to order Treasury “to make the remaining denominations [not including the $1 bill] of currency accessible to the blind and visually impaired not later than December 31, 2026.” See id. at 4–5 & n.1. The 2020 deadline for meaningful access to the $10 bill urged by the plaintiffs corresponded to the target date Treasury set in its 2013 White Paper. See id. at 7.
As support for modifying the 2008 Injunction Order by altering its core principle of improving access in tandem with redesigns to combat counterfeiting, the plaintiffs highlighted that the redesign date “was postponed until 2026 for reasons that are unrelated to the production of [RTF]” and that Treasury “has not indicated any impediments to adding a tactile feature by 2020.” Id. at 16–17. Although acknowledging that the BEP Director had stated, in a July 17, 2012 declaration, that “disconnecting the timing of the counterfeiting and accessibility redesigns would add considerable complexity and additional expense,” the plaintiffs discounted this concern as “mooted” because “[a]n accessibility redesign in 2020 would be six years apart from a security redesign in 2026.” Id. at 20–21 (internal quotation marks, citation, and emphasis omitted) (quoting Second Supp. Decl. of Larry R. Felix, Director of BEP ¶ 3, ECF No. 119-1). Moreover, the plaintiffs discounted Treasury’s “argument pertaining to the additional cost and complexity of conducting two separate redesigns [as] undocumented,” id. at 21, and emphasized that, in their view, “[a]n external device cannot serve as a substitute for a system through which a visually impaired person can independently denominate banknotes using his or her own senses,” id. at 23. Although “[t]he intent underlying th[e] [Injunction Order] was to prod the Secretary into making [U.S.] currency accessible to the blind and visually impaired,” id. at 37, the
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plaintiffs expressed concern that Treasury “is now using the [Injunction Order] as a justification for delaying a meaningful access redesign,” id. Speculating that Treasury might seek “permission to conduct an urgent counterfeiting redesign even in the absence of an accessibility redesign,” id., the plaintiffs posited that “if this Court would amend the order to allow the government to undertake an urgent counterfeiting redesign, it should be no less willing to amend the order to mandate meaningful access by a specific deadline,” id. at 38.
In opposing the plaintiffs’ motion, Treasury argued that “[i]n entering its [Injunction Order], the Court recognized the efficiency of allowing BEP to incorporate any changes to the currency and next round of security features into one redesign. Plaintiffs’ modification would eliminate that efficiency.” Def.’s Opp’n to Pls.’ Second Mot. at 17, ECF No. 148; id. at 21 (same). Modification was unnecessary, Treasury reasoned, because the agency “has every incentive to produce a redesign as quickly as possible, because of the ever-growing threat of counterfeiting.” Id. at 1; see also id. at 15 (“This Court chose to link providing meaningful access with changing the currency to guard against counterfeiting not simply as a matter of convenience, but in recognition of the many factors the Secretary must consider in designing currency, including the statutory command to guard against counterfeiting.”). As the “Court and the parties understood, at the time of the [Injunction Order],” id., the “timing of . . . redesigns and the intervals between them depend, in large measure, on changes in counterfeiting technology and emerging counterfeiting threats. . . . [which] require BEP to work carefully but quickly in producing redesigns, so that . . . currency is not left vulnerable to counterfeiting,” id. at 2.
As for RTF methods, Treasury highlighted that “the development of an appropriate tactile feature was always expected to require a significant amount of time,” especially where raised
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features used by other countries “either are too low to be usable even when new, or wear down so much in circulation as to become unusable fairly quickly.” Id. at 6–7 (internal quotation marks and citation omitted). Considering Treasury’s “strong and ongoing commitment to adding a[n] [RTF] to the nation’s currency,” “none of the considerations that supported linking the completion of that effort to the redesign of each denomination ha[s] changed.” Id. at 12.14
In arguing that decoupling the two redesigns would not serve the public interest, Treasury explained that currency changes “impose significant costs on private businesses” and “[r]equiring the Secretary to redesign each denomination twice in the near future, . . . once to incorporate a tactile feature . . . and again to update the anti-counterfeiting features[,] would both substantially increase private-sector costs and create a very real risk of confusion for businesses and the broader public.” Id. at 20. Successful completion of any redesign “process . . . requires balancing many considerations, including the needs of blind and other visually impaired persons; the efficiency and economy of the manufacturing process; the needs of the Federal Reserve System as to durability, usability, and consistency; the needs of currency users and the banknote processing community; and the statutory mandate to produce currency in the ‘best manner’ to guard against counterfeiting.” Id. at 24. (citation omitted) (quoting 12 U.S.C. § 418).
The plaintiffs’ motion was denied.15 This Court noted that the original Injunction Order “did not set a specific deadline for compliance with Section 504,” but instead “paired the

14

Treasury also argued that “the measures already implemented . . . now enable the visually impaired to

independently identify the denomination of paper currency,” id. at 12 (internal quotation marks, citation, and

alteration omitted), and indicated that, “[a]t an appropriate time,” Treasury “may file a motion to vacate the

[Injunction Order], although [Treasury] still intends to add a tactile feature to the currency,” id. at 13 n.3.

15

The plaintiffs’ motion was analyzed under both Rule 60(b)(5) and Rule 60(b)(6), rather than the Court’s

inherent equitable authority, because “whichever standard applies, the D.C. Circuit has explained that as a practical

matter, it makes little difference whether the district court resolves a motion to modify a consent order under Rule

60 or under its equitable authority as the standard for each is substantially the same. Am. Council of the Blind v.

Lew, 2017 WL 6271264, at *1 n.1 (internal quotation marks, alterations, and citations omitted) (citing Pigford v.

Johanns, 416 F.3d 12, 16 (D.C. Cir. 2005); Cook v. Billington, No. Civ.A 82-0400(GK), 2003 WL 24868169, at *2–

3 (D.D.C. Sept. 8, 2003); New York v. Microsoft Corp., 531 F. Supp. 2d 141, 169 (D.D.C. 2008)).

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development of features to improve meaningful access to currency with the ongoing, and statutorily required, redesigns of currency to combat counterfeiting.” Am. Council of the Blind v. Lew, 2017 WL 6271264, at *2. Despite the delays in implementing “some features that will improve access to currency,” the Court declined to “upset the balance struck in the [Injunction Order].” Id. The delays neither rendered the Injunction Order “detrimental to the public interest” under Rule 60(b)(5) nor were they “‘extraordinary circumstances’ that would justify a modification under the higher standard of Rule 60(b)(6).” Id. (internal quotation marks and citation omitted). Moreover, since the 2008 Injunction Order “substantial progress has been made in improving access to currency for the blind and visually impaired,” id., including progress in designing an RTF, in “adding large, high-contrast numerals and different colors to each denomination,” id. (internal quotation marks and citation omitted), and in implementing “a currency reader distribution program,” id.; see also Def.’s Opp’n to Pls.’ Second Mot. at 19 (“BEP has secured and analyzed a comprehensive contractor study; conducted numerous instances of feasibility testing, usability testing, acuity testing, and manufacturing trials; . . . helped prepare manufacturers of cash handling equipment for the incorporation of a tactile feature; and sought to address concerns expressed by other federal government stakeholders.”); id. at 6 (“BEP has been working diligently to implement these measures, including the development of a usable and durable tactile feature for the currency. Since 2008, BEP has added high-contrast numerals to the $5, $10, $20, $50, and $100 notes, including different colors [added] to both the $5 and $100 notes. BEP will add colors to all future redesigns. BEP has also made free currency readers available to every individual who requests them. . . . [and] has monitored and deployed technologies that have emerged since the [Injunction Order].”); id. at 10 (discussing the full nationwide distribution of the “iBill,” a free currency reader, and Treasury’s
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efforts to publicize it). While “recogniz[ing] that this progress is not as significant as a released redesigned
note,” “decoupling improvements for the blind and visually impaired . . . from the continuing efforts by BEP to redesign currency to combat counterfeiting[] could create unnecessarily duplicative work and potentially increase costs for both the government and the private sector.” Am. Council of the Blind v. Lew, 2017 WL 6271264, at *2 (citing Def.’s Opp’n to Pls.’ Second Mot., Att. 1, Decl. of Michael Wash (“2016 Wash Decl.”) ¶ 15, ECF No. 148-1 (explaining that redesigning “each denomination twice in the near future . . . once to incorporate [tactile features] and again to incorporate new visual designs and enhanced security features to continue to minimize counterfeiting—would both substantially increase private sector costs and create a very real risk of confusion for both businesses and the broader public”)). In other words, “plaintiffs’ proposed modification might turn out to be more detrimental to the public interest than the current order in effect.” Id. (emphasis in original).
I. D.C. Circuit Remands for “[B]etter [S]upport” of Court’s “[F]indings [S]upporting [D]enial [O]f [M]odified [I]njunctive [R]elief”
The plaintiffs appealed the denial of their second motion to modify the injunction. Analyzing the motion under Federal Rule of Civil Procedure 60(b)(5), the D.C. Circuit reversed and remanded to obtain “[a] more concrete estimate of the financial burden of incorporating a raised tactile feature,” which the Circuit described as “necessary,” even though Treasury had told the Circuit “we don’t know exactly what the costs are.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 369 (internal quotation marks omitted) (quoting Treasury Secretary’s counsel at oral argument before D.C. Circuit, Transcript of Oral Argument, Am. Council of the Blind v. Mnuchin, D.C. Cir. No. 17-5013 (Oct. 19, 2017) at 20:55–21:05). The D.C. Circuit found that, in denying plaintiffs’ proposed modification of “forcing an earlier redesign of currency separate
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from the planned anti-counterfeiting redesign,” id. at 367, this Court “did not abuse its discretion by considering the costs to the government” or “private sector costs,” id. at 367–68, and further that the “added financial burden of decoupling the timelines may very well render the Secretary’s ongoing violation of the Rehabilitation Act—which the parties reasonably expected to be cured in one decade but under the Secretary’s current timeline will stretch into a second decade, and most likely a third—equitable,” id. at 368.
Nevertheless, the D.C. Circuit deemed “without adequate evidentiary support,” “insufficient,” “hardly precise,” not “concrete,” “unclear,” and “guesstimates” projections that private sector costs to upgrade equipment could be $3 to $4 million, and that the “investment required to prepare” Treasury to produce banknotes with an RTF would be $5 million to $66 million and that “annual maintenance costs” would be up to $12 million, id. at 368–70. The Circuit opined that “the investment costs . . . specific to producing a raised tactile feature” will be “incurred whenever it is put to use without regard to coupling/decoupling,” id. at 369, and “we do not have any data on the difference” to the private sector between two redesigns compared to a “single coupled change,” id. at 370. The Circuit recognized that “decoupling the timelines and producing banknotes with a raised tactile feature sooner than 2026 (at the earliest) may lead to more annual maintenance costs and therefore more total costs,” id. at 369, would require Treasury “to change printing plates twice rather than once if a raised tactile feature is introduced before the next planned currency redesign,” id., which “may well be more inefficient,” id., and that “[t]he costs of two redesigns will presumably [] be higher than the cost of one redesign,” id. Yet, the Circuit sought more concrete evidence of this “difference in costs between the two timelines,” id., stating that this “financial difference is crucial to weighing the equities of the plaintiffs’ requested modification,” id. At the same time as concluding “the district court needs
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more concrete estimates of the costs that matter,” id. at 371, the Circuit was aware not only that Treasury was unable to provide such concrete costs since no RTF technology had been selected, id. at 365 n.6, 368–70, but also that “even banking industry representatives say that the industry cannot make reasonable estimates until the [BEP] announces the specific height and application method of the tactile feature,” id. at 370 (internal quotation marks and citation omitted).
On remand, the parties were directed to propose a schedule for further proceedings and to appear for a status conference on March 14, 2018. See Min. Order (Feb. 23, 2018). In response, the parties agreed that the plaintiffs would file a renewed motion to modify, mooting their second motion, see Mar. 2018 JSR ¶ 1, and the plaintiffs indicated that they might seek discovery, id. ¶ 4, although no such discovery motion ever materialized. The parties disclaimed the necessity of any status conference, id. ¶ 6, and thus the scheduled status conference was cancelled, Min. Order (Mar. 7, 2018).
During the pendency of the appeal to the D.C. Circuit, Treasury had continued testing on RTF technologies. Specifically, Treasury “recruit[ed] . . . approximately fifty-five focus group participants” for testing to “rectify the accuracy and durability concerns that have so far been associated with tactile features.” Def.’s Seventeenth Status Rpt. (Mar. 16, 2017) ¶ 2, ECF No. 155. This “testing showed significant variation in the accuracy rates among participants.” Def.’s Eighteenth Status Rpt. (Sept. 18, 2017) ¶ 3, ECF No. 156. Treasury subsequently provided notice that it had “settled on a four-position rectangle shape for the [RTF], . . . but ha[d] not yet chosen between the two remaining methods of application (Intaglio or Coated-embossed).” Def.’s Nineteenth Status Rpt. (Mar. 16, 2018) ¶ 2, ECF No. 159. To inform this RTF selection, Treasury anticipated holding durability testing on the different RTF methods from February to April 2018, focus groups in March and April 2018, bank equipment testing from March through
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May 2018, critical manufacturing testing from April through August 2018, and further largescale testing with visually impaired individuals in July and August 2018. Id. ¶ 3. Treasury also planned to analyze how the RTF would interact with the rest of the note in 2019, enabling it to make a final decision as to which RTF application method to select by late 2019. Id. Finally, Treasury updated the sequence of redesigns “[b]ased on an assessment of . . . emerging counterfeiting threats,” although the $10 note was still expected to be redesigned first, and to be “ready for production no later than 2026.” Id. ¶ 4.
J. Plaintiffs File Third Motion to Modify the Injunction Two months after the mandate issued, the plaintiffs filed the pending motion to modify the injunction with the identical relief as their second motion. Once again, the plaintiffs request that Treasury be ordered to provide meaningful access to the $10 bill by December 31, 2020, and to the remaining denominations of currency, aside from the $1 bill, by December 31, 2026. Pls.’ Third Mot. at 4 & n.1. Treasury objects that, inter alia, (1) redesign of the currency for counterfeit deterrence is “not on any precise schedule,” Def.’s Opp’n to Pls.’ Third Mot. at 16, ECF No. 164 (internal quotation marks and citation omitted); (2) measures implemented already enable identification of currency for the visually impaired, id.; and (3) given the costs of testing, implementation, and publicity necessary to implement and educate users on redesigned currency, decoupling the redesign of currency to provide meaningful access from the redesign to improve security would not be in the public interest, id. at 16, 21, essentially the same conclusions reached by the Court in 2008 and in denying the plaintiffs’ first and second motions to modify the injunction. Although the arguments regarding this pending motion are similar to those raised in conjunction with the plaintiffs’ second motion, the record has changed and expanded
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substantially. The plaintiffs’ second motion to modify the injunction was supported by a single declaration and six exhibits that generally concentrated on (1) a 2009 report studying methods of providing meaningful access to the visually impaired,16 (2) Treasury’s plans to add Harriet Tubman to the $20 bill,17 and (3) perceived deficiencies with the iBill currency reader.18
By contrast, as support for their third motion, the plaintiffs incorporated the studies and declarations previously submitted, see, e.g., Pls.’ Third Mot. at 12, 20 n.9, 21–22, supplemented by: (1) nine new declarations from persons with visual impairment attesting to how the lack of meaningful access to currency prevents them from engaging in everyday retail transactions or employment or volunteer opportunities, and why they find currency readers and mobile applications to be an insufficient solution;19 (2) a 2016 report from the U.S. Bureau of Labor Statistics indicating that retail salespersons and cashiers were the occupations with the highest employment in May 2015, in order to demonstrate that “the design of currency . . . creates significant obstacles to employment opportunities requiring the handling of cash,” leaving persons with visual impairment “largely shut out from the second largest occupation in the United States,” id. at 12–13;20 (3) information on federal supplemental security income (“SSI”)

16

See Pls.’ Second Mot., Ex. 1, ARINC, Final Report: Study to Address Options for Enabling the Blind and

Visually Impaired Community to Denominate U.S. Currency (July 2009) (“ARINC 2009 Study”), ECF No. 142-2.

17

See Pls.’ Second Mot., Ex. 2, Nick Timiraos, Q&A: Jacob Lew Explains His Currency Redesign Plan, The

WALL ST. J. (Apr. 21, 2016, 10:29 AM), ECF No. 142-3 (discussing interview with Jacob Lew regarding “his long-

awaited plan for a sweeping currency redesign that will put Harriet Tubman on the $20 bill”); id., Ex. 3, An Open

Letter from Secretary Lew (Apr. 20, 2016), ECF No. 142-4 (discussing decision to put Harriet Tubman on the $20

bill).

18

See Pls.’ Second Mot., Ex. 4, Decl. of Eric Bridges (“Bridges Decl.”) ¶ 4, ECF No. 142-5 (detailing why

the iBill currency reader “is of little use in a public setting”); id. Ex. 5, iBill Talking Banknote Identifier, ECF No.

142-6 (on file in Chambers); id., Ex. 6, Orbit Research, iBill Users Manual (2014), ECF No. 142-7; id., Ex. 7, BEP

Solicitation/Contract/Order for Commercial Items, ECF No. 142-8.

19

See Pls.’ Third Mot., Ex. 1, Decl. of Rev. Helen Jo Taliaferro (“Taliaferro Decl.”), ECF No. 160-2; id., Ex.

2, Decl. of Mark Richert (“Richert Decl.”), ECF No. 160-3; id., Ex. 3, Decl. of Jeff Thom (“Thom Decl.”), ECF No.

160-4 id., Ex. 4, Decl. of Kim Charlson (“Charlson Decl.”), ECF No. 160-5; id., Ex. 7, Decl. of Paul Mims (“Mims

Decl.”), ECF No. 160-8; id., Ex. 8, Decl. of Ernie Udo (“Udo Decl.”), ECF No. 160-9; id., Ex. 15, Decl. of Mark

Adreon (“Adreon Decl.”), ECF No. 160-16; id., Ex. 16, Decl. of Linda Schneider (“Schneider Decl.”), ECF No.

160-17; id., Ex. 17, Decl. of Hannah Fairbairn (“Fairbairn Decl.”), ECF No. 160-18.

20

See Pls.’ Third Mot., Ex. 5, U.S. Bureau of Labor Rpt. on Retail Salespersons (Mar. 2016), ECF No. 160-6.

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payments to support the claim that “SSI payments would be reduced if the blind and visually impaired were able to obtain employment in occupations involving the use of currency,” id. at 13;21 (4) five reports or press releases from the Federal Reserve and the U.S. banking industry showing “astronomical” resources, such that the “impact on the government and the private sector of modifying the injunctive decree [would be] relatively mute,” id. at 13–14;22 (5) the transcript from the oral argument in this case before the D.C. Circuit in October 2017 as evidence that Treasury “[k]eeps [s]witching [p]ositions” on whether currency readers already provide meaningful access to U.S. currency, id. at 16;23 and (6) the BEP’s performance plan for Fiscal Year 2018 which reflects that “demand for these devices has been well below expectations,” id. at 28, and a report from the Federal Reserve on access to mobile financial services which the plaintiffs cite for the proposition that “smartphone applications are likely to be of little benefit to large numbers of elderly blind and visually impaired persons,” id. at 31.24
Likewise, Treasury submitted substantially more information in opposing the third motion than the second. In connection with the plaintiffs’ second motion, Treasury submitted: (1) two declarations from Treasury officials describing the RTF testing process, the currency reader program, and the development of mobile applications;25 and (2) an excerpt from a 2004 deposition of plaintiff Patrick Sheehan, who has limited vision, regarding how larger, high-

21

See Pls.’ Third Mot., Ex. 6, U.S. Social Security Administration, Federal Benefit Rates, ECF No. 160-7.

22

See Pls.’ Third Mot., Ex. 9, Federal Reserve Board, Annual Report 2016, ECF No. 160-10; id., Ex. 10,

Federal Reserve Board, 2018 Currency Budget, ECF No. 160-11; id., Ex. 11, Press Release, Federal Reserve Board,

Federal Reserve Board announces Reserve Bank income and expense data and transfers to the Treasury for 2017

(Jan. 10, 2018), ECF No. 160-12; id., Ex. 12, Federal Reserve Bank of New York, Quarterly Trends for

Consolidated U.S. Banking Organizations: Third Quarter 2017, ECF No. 160-13; id., Ex. 13, Net Income of FDIC-

Insured Commercial Banks, ECF No. 160-14.

23

See Pls.’ Third Mot., Ex. 14, Transcript of Oral Argument, Am. Council of the Blind v. Mnuchin, D.C. Cir.

No. 17-5013 (Oct. 19, 2017), ECF No. 160-15.

24

See Pls.’ Third Mot., Ex. 18, U.S. Dep’t of Treasury, Bureau of Engraving & Printing, Congressional

Justification for Appropriations FY 2018, ECF No. 160-19; id., Ex. 19, Federal Reserve Board, Consumers and

Mobile Financial Services 2016, ECF No. 160-20.

25

See 2016 Wash Decl.; Def.’s Opp’n to Pls.’ Second Mot., Att. 2, Decl. of Teresa Fynes (“First Fynes

Decl.”), ECF No. 148-2.

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contrast numerals change his ability to denominate currency and exploring his use of a closed circuit television to count money in his role as Treasurer for his chapter of the American Council of the Blind.26 By contrast, in opposing the plaintiffs’ third motion, Treasury submitted: (1) four declarations from Treasury officials, which collectively described the RTF testing process, currency reader program, and drawbacks of various RTF methods;27 (2) two declarations, one from the Federal Reserve and one from the U.S. banking industry, describing the testing necessary to ensure that RTF is compatible with high-speed currency-processing machines and

26

See Def.’s Opp’n to Pls.’ Second Mot., Att. 3, Excerpts from Dep. of Patrick M. Sheehan, ECF No. 148-3.

27

See Def.’s Opp’n to Pls.’ Third Mot., Att. 1, 2016 Wash Decl., ECF No. 164-1; id., Att. 2, Second. Decl. of

Teresa Fynes (“Second Fynes Decl.”), ECF No. 164-2; id., Att. 3, Decl. of Leonard R. Olijar (“First Olijar Decl.”),

ECF No. 164-3; id., Att. 4, Decl. of Michael Johnston (“First Johnston Decl.”), ECF No. 165-1. The 2016 Wash

Declaration was resubmitted, with no updates, despite the D.C. Circuit’s conclusion that this declaration “tell[s] us

nothing about the difference in costs between the two timelines. . . . [which] financial difference is crucial to

weighing the equities of the plaintiffs’ requested modification.” Am. Council of the Blind v. Mnuchin, 878 F.3d at

369. Consequently, Treasury was directed to explain why this declaration should not be stricken from the record.

Order Directing the Parties to Answer Questions (Question 15). Treasury explained that “additional declarations

and responses to the Court’s questions [could] be read in conjunction with the Wash declaration and complete the

record in this matter.” Def.’s Answers (Question 15). Indeed, Treasury updated these declarations when responding

to the Court’s questions. See, e.g., Def.’s Answers, Att. 1, Second Decl. of Leonard R. Olijar (“Second Olijar

Decl.”), ECF No. 179-1; id., Att. 2, Third Decl. of Teresa Fynes (“Third Fynes Decl.”), ECF No. 179-2; id., Att. 3,

Second Decl. of Michael Johnston (“Second Johnston Decl.”), ECF No. 179-3; id., Att. 4, Second Decl. of Michael

J. Lambert (“Second Lambert Decl.”), ECF No. 179-4. Treasury also pointed out that the Wash Declaration

“provides several components of an extremely complicated picture, including important background information on

the development of an RTF and the testing process. For example: [1] Paragraph 3 of the declaration explains the

RTF testing process as conducted through August 2016. It notes the various types of RTFs that were tested and

describes the accuracy rates and ‘ease of use’ ratings for the tested RTFs. [2] Paragraph 4 describes requirements for

an RTF and the potential damage a tactile feature could cause to national commerce absent sufficient testing. [3]

Paragraph 5 describes additional requirements for an RTF and the significant challenge of balancing durability with

manufacturability and usability. [4] Paragraph 6 provides detailed information about the testing process and the

observations made in the first stages of that process. In particular, it sheds significant light on the question of

whether any RTF can ever be practical for one-handed use. [5] Paragraph 7 further describes the testing process and

provides the specific results of a year’s worth of testing. It also identifies the many blind organizations, including

[American Council of the Blind], which participated in the testing. [6] Paragraph 8 describes the challenges other

countries have encountered when attempting to incorporate an RTF into their currency. [7] Paragraph 9 describes

some costs that BEP may incur in applying an RTF to United States currency. The estimates are tentative and

incomplete because those costs are dependent on a number of factors, most notably which RTF and application

method is eventually selected. [8] Paragraph 10 provides some general information regarding private sector costs

that may be incurred by incorporating an RTF into the currency. Again, the estimates are tentative and incomplete

because of many unknown factors. [9] Paragraphs 11 and 12 describe BEP’s testing and planning process. They

also note that more definitive cost estimates will depend on further testing and collaboration with private parties

later in the process. [10] Paragraph 13 describes the testing requirement and how it would relate to legacy notes.

[11] Paragraphs 14 and 15 describe BEP’s planning and the schedule for development of the next family of notes, as

well as certain aspects of cost. They underscore that security is the driving factor.” Def.’s Answers (Question 15).

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ATMs;28 and (3) two excerpts from depositions from two individuals with visual impairment,
one of which was the same Sheehan deposition submitted in conjunction with the second motion,
and one of which described how Melanie Brunson, who is legally blind, folds money in a particular way prior to making purchases.29
Shortly after briefing on this motion was complete, Treasury filed a Supplemental Status
Report, Def.’s Supp. Status Rpt. (Dec. 20, 2018), sharing a recent study of RTF methods
conducted by the MITRE Corporation, see id., Att. 1, Raised Tactile Feature Implementation
Performance Study: Final Report (2018) (“MITRE 2018 Study”), ECF No. 169-1. Based on the
MITRE study, which consisted of a series of tests with 239 blind participants at five locations,
Treasury shared “concerns regarding its ability to create a tactile feature for U.S. currency with
an accuracy rate that will make it suitable for reliable use in commerce.” Def.’s Supp. Status
Rpt. (Dec. 20, 2018) ¶¶ 4, 11. Specifically, Treasury anticipated “that a large and growing
segment of blind and visually impaired persons . . . will be unable to use a tactile feature,” id. ¶
12, for example, because they suffer from “neuropathy or other issues affecting tactile
sensitivity,” id., or because, unlike many of the MITRE study participants, they are not
experienced Braille readers, id. ¶ 11. Treasury’s own research and the MITRE study now caused
Treasury to
believe[] many of the assumptions [BEP] made in 2010 [when it recommended the three-pronged strategy for providing meaningful access] are no longer valid. Due to its inherent inaccuracy, [BEP] is concerned that a tactile feature is unlikely to allow blind and visually impaired persons to denominate currency effectively. Conversely, since 2010, advances in technology have made electronic currency readers far more effective than previously imagined. Similarly, the introduction of free smartphone applications that denominate currency with essentially perfect accuracy provides blind and visually impaired

28

See Def.’s Opp’n to Pls.’ Third Mot., Att. 5, Decl. of Michael J. Lambert (“First Lambert Decl.”), ECF No.

164-5; id., Att. 6, Decl. of David Tente, ECF No. 164-6.

29

See Def.’s Opp’n to Pls.’ Third Mot., Att. 7, Excerpts from Dep. of Patrick Sheehan, ECF No. 164-7; id.,

Att. 8, Excerpts from Dep. of Melanie Brunson, ECF No. 164-8.

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persons with options not contemplated in 2010. Id. ¶ 13 (citation and footnote omitted).
The plaintiffs responded to Treasury’s reevaluation of the validity of its 2010 strategy for incorporating RTF, and the effectiveness of RTF generally for accurate usage by visually impaired persons, with criticisms of the study and Treasury’s conclusions. See Pls.’ Resp. to Def.’s 2018 Supp. Status Rpt., ECF No. 173. First, the plaintiffs noted that the RTF tested by MITRE measured 90 microns in height, even though RTF measuring 140 microns in height had been shown, in previous tests, to be more perceptible and durable and is the height of the RTF used on Canadian banknotes. Id. at 2. Citing to an exhibit to the plaintiffs’ second motion to modify the injunction, see id. at 2 (citing ARINC 2009 Study at 30) and to comments submitted in response to Treasury’s 2010 Notice of its three-pronged strategy for providing meaningful access, some of which concerned Canadian banknotes and some of which only discussed RTF “in concept,” the plaintiffs declared that “[t]here was no basis for the BEP to limit the height of the RTF . . . to 90 microns.” Pls.’ Resp. to Def.’s 2018 Supp. Status Rpt. at 2, 3. These criticisms, however, failed to address the fact that Treasury had previously studied the RTF on Canadian banknotes and that the same study cited by the plaintiffs concluded that the feature wears out so frequently that “blind persons can accurately identify it on widely circulated notes only 49% of the time,” Def.’s Opp’n to Pls.’ Third Mot. at 8 (citing ARINC 2009 Study at 70), and that RTFs at that height “failed functionality testing because [they] proved to be unsuitable for use in the high-speed machine processing and handling equipment that is the standard in the industry.” Def.’s Answers (Question 19).30

30

In response to the Court’s Question 19 (“Is the best accuracy rate for an RTF in testing environments 80

percent or 90 percent? Compare [First Olijar Decl.] ¶ 10, with [2016 Wash Decl.] ¶ 3”), Treasury responded: “The

best accuracy rate achieved for any proposed feature that has not been eliminated from consideration for other

reasons is approximately 80%. The two declarations cited in this question were referring to different tests, before

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The plaintiffs also downplayed the MITRE study’s concerns with accuracy, stating that
any such concerns “can be resolved by more frequent replacement of currency,” while
recognizing that “[r]eplacement of banknotes at more frequent intervals would undoubtedly
result in higher costs in terms of production equipment, facilities, transportation, and other
expenses.” Pls.’ Resp. to Def.’s 2018 Supp. Status Rpt. at 4. Finally, the plaintiffs suggested
that “[t]he reason that Braille users performed better was . . . a function of greater tactile
experience,” such that “the utility of the RTF is not dependent upon knowledge of Braille, but is
rather a function of regular usage of the RTF.” Id. at 5.
K. Plaintiffs Decline to Call Witnesses and Urge Resolution of Pending Motion Without a Hearing
To focus the parties on the factors necessary to resolve the pending motion, and address
the evidentiary gap that the D.C. Circuit directed should be considered on remand, a motions
hearing for January 25, 2019 was scheduled, for which hearing the plaintiffs were instructed to
identify witnesses to testify. See Min. Order (Jan. 4, 2019). Due to a partial government
shutdown, Treasury sought to stay proceedings in light of a lapse of appropriations. See Def.’s
Mot. to Stay ¶¶ 1–3, ECF No. 170. Opposing a stay, the plaintiffs “rest[ed] their case on the
basis of their existing briefs plus the attachments,” Pls.’ Opp’n to Def.’s Mot. to Stay at 1, ECF
different test groups, using different prototype RTFs. In referring to an accuracy rate as high as 90%, Mr. Wash was describing initial test results using small focus groups and a 140-micron Coated-Embossing feature. As stated in the Wash declaration, however, it was ‘unclear how those results would translate with larger scale testing.’ Moreover, that type of feature later failed functionality testing because it proved to be unsuitable for use in the high-speed machine processing and handling equipment that is the standard in the industry. Therefore, the recent MITRE study tested RTFs of 90 microns in height, which BEP considers more likely to be usable in machine processing and handling equipment. The results of testing at that height are as follows:
• Intaglio (90 microns/max height)—2017 Focus Group—78% • Coated-embossing (90 microns)—2018 Acuity Study—65% • Intaglio (90 microns/max height)—2018 Acuity Study—82%
The above refutes plaintiffs’ criticism of the MITRE study on the basis that the study failed to use a test feature of 140-160 microns in height. See [Pls.’ Resp. to Def.’s Supp. Status Rpt.] at 4. Although there had previously been an assumption or belief that a feature of that height might be workable for U.S. currency, functionality testing has shown otherwise.” Def.’s Answers (Question 19) (alterations omitted).
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No. 172, and disclaimed any need for an evidentiary hearing, id. At the same time, ironically, the plaintiffs demanded more clarity as to three key issues: (1) Treasury’s position on the feasibility of an RTF, see Pls.’ Reply in Supp. of Third Mot. (“Pls.’ Reply”) at 8, ECF No. 168; (2) Treasury’s cost estimates, see Pls.’ Opp’n to Def.’s Mot. to Stay at 1; Pls.’ Reply at 1–3; and (3) relatedly, Treasury’s timeline for deployment of currency changes, Pls.’ Third Mot. at 3.
In lieu of an evidentiary hearing to help resolve the disputed factual issues between the parties—an opportunity that apparently interested only this Court—the evidentiary hearing was vacated and the parties were directed to respond to questions posed by the Court, with twelve questions directed to the plaintiffs and sixteen questions directed to Treasury. See Order Directing the Parties to Answer Questions at 1; Pls.’ Answers, as amended by Pls.’ Unopposed Mot. to Amend, ECF No. 177; Def.’s Answers; Pls.’ Resp. to Def.’s Answers, ECF No. 180. The response to these questions laid bare multiple disagreements between the two sides, with the plaintiffs questioning whether Treasury was acting in good faith, Pls.’ Answers (Question 12),31

31

In response to the Court’s Question 12 (“If the defendant insists, based on internal and independent

evaluations of available RTF and other technologies presented to this Court, that meeting the timelines in the

plaintiffs’ proposed order would be infeasible or impossible, must the plaintiffs’ pending motion be denied?”), the

plaintiffs responded: “Plaintiffs believe that instead of denying the motion, the Court should tailor its remedial order

to impose a feasible schedule for compliance. . . . That being said, the Court should view with considerable

skepticism any assertion of infeasibility. Any such assertion would be inconsistent with the Secretary’s prior

representations to this Court that the delays in the next currency redesign were necessitated not by challenges in

making the currency accessible, but rather by the additional time required to combat new counterfeiting

technologies. See [Def.’s Supp. Status Rpt. ¶ 5 (Feb. 22, 2016)]. . . . Additionally, the Secretary has not acted in

good faith and with reasonable diligence in providing meaningful access to currency. This is illustrated by the

Secretary’s most recent status report, which states that the Secretary may abandon the RTF approach due to lack of

efficacy. [Def.’s Supp. Status Rpt. (Dec. 20, 2018) ¶ 13]. This finding was based on a study conducted by

[MITRE], which tested a 90 micron RTF feature, instead of a 145-160 micron feature which the [ARINC 2009

Study] found could be easily integrated with existing cash handling equipment. According to the [MITRE] study,

the 90-micron feature was used in order to hold ‘the height to a lower limit for stack height (which increase due to

the addition of the RTF), [Banking Equipment Manufacturing] use, and Intaglio capability.’). [citing MITRE 2018

Study at 7–8]. The Secretary was well aware of these ‘lower limits’ in 2010, when he first proposed using the RTF.

75 Fed. Reg. 28331 (May 20, 2010). Amazingly, the Secretary waited for nearly nine years before conducting a test

on the 90-micron feature to determine its effectiveness. The Secretary can point to no reason why he could not have

performed the same study in 2010. Essentially, the Secretary wasted the past nine years in pursuing an approach

that he knew or should have known would not be effective. This points to the obvious conclusion that the Secretary

will spare no effort to delay implementation of meaningful access. This approach will not change unless this Court

makes clear that it expects the Secretary to provide meaningful access by a hard deadline, and it is prepared to use

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Treasury suggesting that meaningful access to currency, even if RTF is never successfully incorporated, was already being provided to satisfy Rehabilitation Act requirements, see Def.’s Answers (Question 16),32 and the parties unable to agree even on the number of people who would be helped by RTF methods, cf. id. (estimating 340,547 blind persons in the United States

its enforcement powers to compel compliance with its order. The effective use of currency is critical to full

participation in modern society. As noted by the Court of Appeals, the accessibility of currency is endowed with

‘special importance’ given its centrality as a mechanism of commerce. Am. Council of the Blind v. Paulson, [525

F.3d at 1269]. Plaintiffs respectfully request that the Court modify the injunctive order so that millions of blind and

visually impaired individuals can enjoy meaningful access to currency without being required to wait for several

more decades.” Pls.’ Answers (Question 12) (emphases in original) (citations and two footnotes omitted).

32

In response to the Court’s Question 16 (“The defendant suggests that external currency readers and mobile

apps available to the blind or visually impaired already provide meaningful access to currency. . . . Given that the

usage rate of currency readers and mobile apps has not changed significantly in the past year, why is the defendant’s

argument that meaningful access is already being provided not foreclosed by the D.C. Circuit’s opinion in American

Council of the Blind v. Mnuchin, 878 F.3d 360, which included several statements indicating that the D.C. Circuit

did not believe that currency readers and mobile apps fulfill the defendant’s obligation to provide meaningful

access? [citations omitted]), Treasury responded: “Defendant submits that the D.C. Circuit opinion, American

Council of the Blind v. Mnuchin, 878 F.3d 360 (D.C. Cir. 2017), does not foreclose the argument that blind and

visually impaired persons already have meaningful access to the currency through external currency readers and

mobile device applications. First, plaintiffs’ filing of a renewed motion to modify mooted the Court of Appeals’

decision, which thus no longer governs these proceedings as a matter of law (although it provides some insight into

questions the court may have if this matter appears before it again). Second, the question of whether currency

readers and mobile applications already provide meaningful access was not before the court, such that the statements

referred to above should be seen as merely assumptions or shorthand references to the fact that this is a

Rehabilitation Act case. Third and relatedly, the record before the Court of Appeals was far from complete

regarding the efficacy of currency readers and mobile applications or the question [of] whether blind and visually

impaired persons now have meaningful access to U.S. currency. . . . Defendant’s efforts to provide meaningful

access to the currency for blind and visually impaired persons should be assessed in terms of the reasonable

accommodations offered, not those accepted. Defendant has offered meaningful access to 100% of the blind

community. . . . Similarly, one factor that may impact the number of mobile applications downloaded is the

availability of competing applications. For example, Microsoft produces Seeing AI, an award-winning, free

application, that can denominate both United States and foreign currency, as well as perform numerous other tasks.

See Seeing AI, https://microsoft.com/en-us/seeing-ai (last visited Feb. 7, 2019). Indeed in July 2018, the American

Council of the Blind gave Microsoft and Seeing AI its ‘James R. Olsen Distinguished Service Award’ for ‘important

contributions which have advanced opportunities for the blind community.’ See Microsoft Receives ACB’s James.

R. Olsen Distinguished Service Award, https://www.acb.org/james-olsen-award-microsoft (last visited Feb. 7,

2019). In making the award, [American Council of the Blind or ‘ACB’] stated that the Seeing AI application had

‘significantly enhanced the independence and quality of life for Americans who are blind or visually impaired.’ Id.

ACB further noted, ‘Due to its no-cost and multi-use capabilities, the application has been downloaded over 150,000

times and completed over 5 million tasks for users.’ Id. Presumably, many blind individuals who are accessing

currency using Microsoft’s application have decided not to seek the government-provided applications or readers. . .

. Despite the above factors that would tend to reduce the number of blind individuals who choose to access currency

through government-provided readers or applications, defendant will continue to make good-faith efforts to

publicize and distribute those options. To date, BEP’s Office of External Relations (‘OEX’) has attended more than

90 conferences as part of its meaningful access initiative, and dozens of organizations and government entities

continue to actively support the currency reader distribution efforts. . . .” Def.’s Answers (Question 16); see also id.

n.2 (“Defendant recognizes that these [folding] methods of accessing currency, while fully effective for some of the

blind population, do not provide meaningful access for all, since they depend on a trusted friend or relative to

denominate currency initially. That is why BEP offers free currency readers and mobile device applications.”).

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in 2020); Pls.’ Resp. to Def.’s Answers at 15 (estimating that in 2008, 1.5 million blind persons were in the United States and that “[t]hat number has certainly increased substantially in recent years due to the aging of the American population”).
Indeed, the only point on which the parties agree is that Treasury has failed to provide concrete estimates of the cost of decoupling the timeline for incorporating RTF from the timeline for redesigning currency to meet security threats. See, e.g., Def.’s Opp’n to Pls.’ Third Mot. at 2; Pls.’ Reply at 1–3. On the one hand, Treasury says that such costs cannot be provided until an RTF method is chosen, essentially rendering the D.C. Circuit’s remand to gather and evaluate cost estimates an impossible task that simply cannot be fulfilled given the current state of the agency’s evaluation of RTF technology. See Def.’s Opp’n to Pls.’ Third Mot. at 2 (stating “the exact costs cannot be known until the Secretary identifies the best technological method for adding a tactile feature to the currency”); id. at 15 (private sector testing associated with redesigned currency “cannot begin, and its cost cannot be determined, until BEP chooses the precise tactile feature for the currency”); Def.’s Answers (Question 23).33

33

In response to the Court’s Question 23 (“The D.C. Circuit repeatedly emphasized that, to determine

whether to modify the injunction, this Court needs ‘concrete estimates of the costs that matter,’ Am. Council of the

Blind v. Mnuchin, 878 F.3d at 371, that is, the difference between a timeline coupled to other security measures and

one that is decoupled from any other redesign. Yet the defendant continues to state that the costs of ‘decoupling the

provision of meaningful access from the next redesign . . . cannot be known until the Secretary identifies the best

technological method for adding a tactile feature to the currency.’ [Def.’s Opp’n to Pls.’ Third Mot. at 2]. Has the

defendant (a) determined the best technological method for adding a tactile feature to currency?; (b) calculated more

concrete estimates comparing the cost of adding an RTF, decoupled from any other redesign requirement, to the

costs of combining RTF with the security redesign?; and (c) if the response to both (a) and (b) is no, estimated when

answers may be provided to these questions?”), Treasury responded: “(a) BEP has not determined the best

application method for any potential RTF, nor has any RTF passed all of the vigorous and extensive

manufacturability and circulation testing required before it could be recommended for use on currency. Two

methods are still under consideration: Intaglio and Coated-Embossing. (b) Since BEP has not yet determined the

best method for adding an RTF, the agency cannot provide concrete cost estimates for any effort to add an RTF to

the legacy $10. As noted previously, it is impossible to predict how well any feature would do in testing. This adds

a great deal of additional uncertainty to any cost estimates. Further cost considerations, as far as they are currently

known, are described in response to Question 13 []. (c) BEP anticipates completing manufacturing testing for the

RTF by September 2019 and selecting the RTF application method by December 2019. Once the application

method is selected, BEP would be able to provide more concrete estimates comparing the cost of adding an RTF,

decoupled from any other redesign requirement, to the costs of combining the RTF with the overall security

redesign.” Def.’s Answers (Question 23).

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On the other side, the plaintiffs, without disputing Treasury’s position, apparently read the D.C. Circuit’s decision remanding this case as compelling the granting of their motion if Treasury is unable to provide “concrete estimates of the costs that matter.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 371. Indeed, the plaintiffs declare that “the Secretary has failed to meet his burden of providing ‘concrete estimates’ of the costs of decoupling the accessibility from the security redesign,” Pls.’ Reply at 8 (quoting Am. Council of the Blind v. Mnuchin, 878 F.3d at 369) (emphasis omitted)), and also assert that “[a]ny costs other than the additional costs of decoupling the two redesigns are irrelevant for purposes of this motion,” id. at 2. Even if the plaintiffs’ reading of the D.C. Circuit’s decision were reasonable, given the current state of Treasury’s efforts to implement RTF and the testing needed before bills incorporating RTF could be placed into circulation, Treasury unequivocally states that “[i]t would not be feasible or possible to produce a $10 note with an RTF by December 31, 2020, or to produce all denominations with an RTF by December 31, 2026,” and thus that it would be infeasible and impossible to comply with the timelines demanded in the plaintiffs’ third motion. See Def.’s Answers (Question 27).34

34

In response to the Court’s Question 27 (“Does the defendant contend that introduction of a $10 bill with

RTF by December 31, 2020, or of other denominations of bills (aside from the $1 bill) with RTF by December 31,

2026 would be infeasible or impossible? If so, please detail the specific reasons supporting this contention, with

citation to any up-to-date declarations or other evidence provided by the defendant to support each reason.”),

Treasury responded: “It would not be feasible or possible to produce a $10 note with an RTF by December 31,

2020, or to produce all denominations with an RTF by December 31, 2026. At this point, BEP has not determined

the application method for any potential RTF, nor has any RTF passed all of the extensive manufacturability and

circulation testing required before BEP could recommend it for use on currency. See [Second Olijar Decl.] ¶ 5.

Both government agencies and private industry need to conduct extensive testing on each denomination when it is

redesigned for security purposes. Similarly, once an RTF is incorporated into each new denomination design, both

public and private bodies would have to conduct similar extensive testing on each denomination. There is no way to

predict the results of this testing, and if notes containing any feature fail the testing, there is no way to predict how

much additional development and testing would be required. See [Second Johnston Decl. ¶¶ 4, 5; Second Lambert

Decl. ¶¶ 19, 21; Second Olijar Decl. ¶ 9]. If BEP were ordered to affix an RTF on the legacy $10 note, regardless of

potential effectiveness, it would still need to go through extensive testing to ensure that it is manufacturable at high

volumes; will be fully functional in banking equipment, high-speed counting machines, ATMs, and other machines;

and will not interfere with either the overt or covert security features on the existing $10 note. This testing would

likely take a minimum of three years. However, the process could be longer, particularly if the RTF adversely

impacts currency’s use in commerce or the high-speed processing (inspection and authentication) machines at the

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L. Matter is Stayed While Parties Negotiate Amidst these multiple areas of disagreement was a faint glimmer of hope that the parties might be able to reach a solution on their own. Treasury indicated, in its answers to the Court’s questions, that the plaintiffs had been invited to meet in September 2018 for a “frank discussion about the progress the agency had made and the limitations of any RTF,” which invitation the plaintiffs then declined. Id. at 2.35 The plaintiffs indicated, however, that they “would likely have” accepted the invitation, “had the Secretary’s counsel provided some indication that new proposals would be forthcoming . . . that could resolve this matter.” See Pls.’ Resp. to Def.’s Answers at 17. Accordingly, the Court ordered the parties to meet and discuss proposals from both sides that could resolve the plaintiffs’ pending motion “in light of the defendant’s representations supplementing the record as to why the provision of more concrete cost estimates, as required by the D.C. Circuit’s opinion . . . are impossible to provide and why it would not be feasible to meet the deadlines proposed by the plaintiffs.” Min. Order (Feb. 25, 2019). The parties met on March 11, 2019 and requested a stay of proceedings to give the

Federal Reserve Banks. Any problem would then need to be diagnosed and an appropriate remedy identified and

implemented. A new round of testing would be required to ensure that the implemented remedy was effective. See

[Second Olijar Decl. ¶¶ 5, 6; Second Lambert Decl. ¶¶ 17–21]. Banknote equipment manufacturers [“BEMs”] have

asked to receive the final RTF design (on test coupons) for testing of their transport systems at least two years before

the issuance of currency bearing the RTF. Every BEM, from a company that makes bill acceptors to a company that

makes ATMs and even those that make high-speed casino and central bank machines, will need to complete

extensive testing. See [Second Lambert Decl. ¶ 21; Second Johnston Decl. ¶ 6]. Production of secure currency

notes in the volume required that function seamlessly in commerce is an extremely complicated, multi-step

industrial process, and unexpected problems can arise at any point. For this reason, it would be extremely risky to

truncate or suspend this extensive testing. See [Second Olijar Decl. ¶ 7].” Def.’s Answers (Question 27).

35

Treasury provided details of this invitation in the introduction to its answers to the Court’s questions,

stating, “[i]n light of the results of the MITRE study, the defendant, through his counsel, proposed to meet with the

American Council of the Blind [] and its counsel in September 2018, to discuss the efforts of the [BEP] to meet the

needs of the blind and visually impaired and to develop an acceptable tactile feature. BEP offered to provide

appropriate tactile feature samples for examination during that meeting. At such a meeting, defendant’s

representatives would have answered questions from the plaintiffs, provided accurate information, and dispelled any

misconceptions the plaintiffs may have had. Defendant believed that a frank discussion about the progress the

agency had made and the limitations of any RTF may have resolved plaintiffs’ renewed motion to modify. The

plaintiffs, however, declined defendant’s invitation to hold a meeting.” Def.’s Answers at 2 (citation to copies of

email correspondence omitted).

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parties more time to negotiate potential solutions. See Jt. Status Rpt. (Mar. 14, 2019) ¶¶ 1, 2, ECF No. 182; Min. Order (Mar. 14, 2019) (staying case until Apr. 15, 2019); Unopposed Mot. to Stay, ECF No. 185; Min. Order (Apr. 9, 2019) (continuing the stay until June 10, 2019).
M. When Stay Is Lifted, Parties Agree that Plaintiffs’ Pending Third Motion Should be Decided Based on the Existing Record, as Expanded by Answers to the Court’s Questions
When the stay was lifted on June 10, 2019, Treasury urged that the plaintiffs’ pending motion be decided “based on the extensive record before” the Court. Jt. Status Rpt. (June 10, 2019) at 1, 3, ECF No. 187. The plaintiffs, despite having never moved for discovery and having declined the Court’s prior invitation for an evidentiary hearing in January 2019, “disagree[d] with the Secretary that the pending motion . . . should be decided on the basis of the existing record.” Id. at 3. The plaintiffs now recommended that an evidentiary hearing or supplemental briefing “may be required” to determine the feasibility of redesigning any denominations by December 31, 2026, especially when, as Treasury conceded, its claim of infeasibility was only directly raised in supplemental briefing responding to the Court’s questions. Id. at 2–4. The plaintiffs also requested “an opportunity to obtain discovery as to the factual basis for the Secretary’s claim of infeasibility[] prior to the filing of further briefs on [this] issue.” Id. at 4.
Once again, the Court sought clarification regarding the status of this matter, ordering the plaintiffs to show cause why their pending motion for modification of the Injunction Order, on which briefing was complete, should not be denied without prejudice in light of the plaintiffs’ assertion that this motion should not be decided on the current record. See Min. Order (June 14, 2019). The plaintiffs clarified that they only wanted discovery if their motion was going to be denied, suggesting that the “Court may have misunderstood the thrust of [their] position,” which was intended to “state that the Court should not decide the pending motion . . . on the basis of the existing record[] if the Court’s decision was to be based on a finding that the relief sought by
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[plaintiffs] was infeasible.” Pls.’ Resp. to Show Cause Order at 1, ECF No. 188 (emphasis added). The plaintiffs’ newly clarified position was “that they should first be given an opportunity to conduct discovery on the feasibility issue, as well as additional briefing after such discovery is concluded, if the Court were inclined to deny the pending motion on the basis of [Treasury’s infeasibility defense],” id., with the proposed discovery intended to clarify the “scope” of such defense, and whether infeasibility “applies to only one denomination, all denominations, or something in between.” Id. at 2. At the same time, “if the Court does address the feasibility issue without discovery and/or additional briefing,” their motion should be granted, as “the declarations filed by [Treasury] present no factual basis for the infeasibility defense.” Id. at 1. Further, because “several design features other than an RTF could be employed to achieve accessible currency,” the plaintiffs argue their motion should be granted “even if the RTF is infeasible.” Id. at 2 (citing Pls.’ Resp. to Def.’s Answers at 9–11). Thus, the plaintiffs “assert[ed] that the Court should without further delay decide the pending motion on the basis of the issue” at hand, which they suggest is solely “whether the Secretary has provided concrete estimates of the additional costs of decoupling the accessibility redesign from the security redesign.” Id. at 2.
With both parties in agreement that the pending motion should be decided on the basis of the current record, that motion is denied. II. LEGAL STANDARD
Rule 60(b)(5) of the Federal Rules of Civil Procedure circumscribes a court’s ability to modify a final judgment unless “applying [the order] prospectively is no longer equitable.” FED. R. CIV. P. 60(b)(5). The party seeking modification “bears the burden of establishing that a significant change in circumstances warrants [its] revision,” Rufo v. Inmates of Suffolk Cty. Jail,
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502 U.S. 367, 383 (1992), and this initial burden may be met by showing “a significant change either in factual conditions or in law,” that renders continued enforcement “detrimental to the public interest,” see id. at 384; accord Horne v. Flores, 557 U.S. 433, 447 (2009). A party’s request to modify an injunction must be viewed through a “broad and flexible” analysis as to whether the “changed circumstances warrant[] relief,” Horne, 557 U.S. at 456, and “the public interest is a particularly significant reason for applying a flexible modification standard” because the injunction “reach[es] beyond the parties involved directly in the suit,” Rufo, 502 U.S. at 381 (internal quotation marks and citation omitted).
Here, the party benefitting from the Injunction Order moves for modification, whereas “the overwhelming majority of motions to modify the terms of a[n] [injunction] are filed by the enjoined party seeking ‘relief from’ the court’s judgment.” Salazar ex rel. Salazar v. District of Columbia, 896 F.3d 489, 498 (D.C. Cir. 2018) (emphasis in original). Regardless, a motion to modify can also “be filed by the plaintiff seeking to enforce the terms of the injunction.” Id. “[A] court’s ‘broad and flexible’ equitable powers, which Rule 60(b) codifies, may allow a district court to ‘tighten a decree’ as well.’” Id. (alterations omitted) (quoting United States v. W. Elec. Co., Inc., 46 F.3d 1198, 1202 (D.C. Cir. 1995)).
“Although . . . a district court should exercise flexibility in considering requests for modification . . . , it does not follow that a modification will be warranted in all circumstances.” Rufo, 502 U.S. at 383. Rather, modification must be in the public interest and be suitably tailored to the changed circumstances. See Gov’t of Province of Manitoba v. Zinke, 849 F.3d 1111, 1122 (D.C. Cir. 2017) (identifying these two prongs of the Rule 60(b)(5) inquiry). At the same time, once a party establishes that a significant change in circumstances warrants revision, the court should, “[a]t the very least . . . consider whether the proposed modification is suitably
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tailored to the changed circumstance.” Id. at 1117 (internal quotation marks omitted) (quoting Rufo, 502 U.S. at 383).
In analyzing the public interest, “courts sitting in equity are obliged to consider the interests of all those affected by a decree.” Twelve John Does v. District of Columbia, 861 F.2d 295, 298 (D.C. Cir. 1998) (emphasis added). The D.C. Circuit previously concluded that, in this case, the public interest includes the interests of “private third parties,” such as banking machine manufacturers, who “will unquestionably be affected by the currency redesign.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 368.
As for the suitably tailored prong, three factors inform this consideration. First, “a modification must not create or perpetuate a constitutional violation.” Rufo, 502 U.S. at 391. Second, a “proposed modification should not strive to rewrite [the order]. . . . the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances.” Id.; see also Salazar, 896 F.3d at 498 (“Any adjustment of the order . . . ‘should do no more’ than is necessary to ‘resolve the problems created by the change in circumstances.’” (quoting Rufo, 502 U.S. at 391)). Third, the court must “defer to . . . government administrators, who have the ‘primary responsibility for elucidating, assessing, and solving’ the . . . intricacies of implementing a decree modification.” Rufo, 502 U.S. at 392 (quoting Brown v. Bd. of Educ., 349 U.S. 294, 299 (1955)); id. at 392 n.14 (“[S]imple common sense require[s] the court to give significant weight to the views of the [] government officials who must implement any modification.”). While Rufo concerned institutional reform directed at state and local governments that were seeking relief from an injunction, similar deference is owed to assessments by a federal agency with particular expertise and knowledge in understanding relevant resource constraints in the context of the agency’s overall mission in
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service of the public interest. This analysis under Rule 60(b)(5), particularly when the beneficiary of an injunction
seeks a modification that would hold an agency to strict deadlines, is not far afield from the D.C. Circuit’s guidance on the equitable factors to consider when an “agency’s delay is so egregious as to warrant mandamus.” See Am. Hosp. Ass’n v. Burwell (“AHA I”), 812 F.3d 183, 189 (D.C. Cir. 2016) (internal quotation marks and citation omitted). In such a case, the D.C. Circuit first held that “in order for law—man-made or otherwise—to command the performance of an act, that act must be possible to perform.” Am. Hosp. Ass’n v. Price (“AHA II”), 867 F.3d 160, 161 (D.C. Cir. 2017). Thus, the district court must “seriously grapple” with an agency’s “assertion that lawful compliance” with proposed timelines “would be impossible.” Id. at 162 (emphasis in original). When fashioning a mandamus order, a number of factors may be relevant and depend on the case, including the real impact on human health and welfare, id. at 164, the defendant’s discretion over the program at issue, id., the “risk of infringing on the authority and discretion of the executive branch,” id. (alteration, internal quotation marks, and citation omitted), the “legislative branch’s awareness of the problem and its capacity to furnish a comprehensive solution,” id., the defendant’s “incipient but good-faith efforts” to resolve the issue, id., and the “availability of some, albeit incomplete,” alternative form of relief, id. Each of these factors tempers a district court’s equitable discretion when fashioning a mandamus order, and each of these factors is relevant to considering the proposed modification here. III. DISCUSSION
At the outset, any argument that Treasury is already complying with its obligation to provide meaningful access to currency is squarely foreclosed by the D.C. Circuit’s most recent opinion in this case. Treasury’s assurance that its currency readers and mobile applications
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“provide essentially universal meaningful access to the entire blind community,” Def.’s Opp’n to Pls.’ Third Mot. at 31, was rejected by the D.C. Circuit on a record, which although now expanded on some issues, was virtually indistinguishable from the current record on the availability of such devices. The D.C. Circuit observed that “[u]nder the injunction’s current terms, millions of visually impaired Americans who could have expected meaningful access to currency by 2018 must now wait until 2026 and beyond. In the meantime, only a fraction of them are helped by the other measures put in place by the Secretary.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 367. Thus, in no uncertain terms, the D.C. Circuit concluded that Treasury’s new timeline for redesigns meant that it “will be in violation of federal law for eight to twenty more years than it would have been had it met its expected timeline for currency redesigns when the injunction issued.” Id. at 366; see also id. at 368 (referring to Treasury’s “ongoing violation of the Rehabilitation Act”). Indeed, notwithstanding Treasury’s fleeting arguments about already complying with the Rehabilitation Act, the agency never moved to terminate the injunction, or sought reconsideration of the D.C. Circuit’s conclusions on this issue, and even concedes here that a “fuller record” would be needed prior to consideration of any such motion. See Def.’s Answers (Question 16), supra n.32.
Accordingly, the question of whether Treasury is already in compliance with the Rehabilitation Act has already been answered with a blunt, and binding, “no.” The question now pending is the efficacy and equities of the decade-old Injunction Order. Despite disagreement on a number of grounds in this case, neither party denies that the Injunction Order is dated, and that the assumptions upon which that relief was based—namely, that a security redesign of U.S. currency would likely occur between 2013 and 2018, and that, in light of the experience of other countries, feasible and durable features could be incorporated into U.S. currency within that
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timeframe—have not come to pass. Notwithstanding the plaintiffs’ insinuations to the contrary, Treasury has been working in good faith to meet its obligations under the Rehabilitation Act while concurrently meeting its obligations to design currency to guard against counterfeiting under 12 U.S.C. § 418, see supra Sections I.D, I.F, I.G. Yet, due to the complexities of designing and incorporating RTF that meets the standards for U.S. currency and to the need to address new and evolving counterfeiting security threats, the Injunction Order has been insufficient to bring Treasury into full compliance with its obligations under the Rehabilitation Act. In short, circumstances have changed.
Notably, however, the passage of time has also demonstrated the prudence of coupling the accessibility redesign to the ongoing security redesign, as the 2008 Injunction Order provided. Directing Treasury to work on both redesigns simultaneously reflects the reality that these redesigns cannot be independent of each other: any accessibility feature, whether that be RTF or any other method, must work in tandem with the security features of the banknote. See, e.g., Def.’s Answers (Question 13(c)) (“These undetermined security features will need to work with an RTF application method that has not yet been approved.”); id. (Question 14) (“Testing would have to be done to ensure . . . that the new feature did not interfere with existing security features or impede the function of machinery.”); id. (Question 27) (same); Second Olijar Decl. ¶ 6 (explaining that any RTF “would still need to go through extensive testing to ensure that it . . . will not interfere with either the overt or covert security features” of a bill); Second Johnston Decl. ¶ 6 (“If BEP . . . affix[ed] a rudimentary or minimal RTF to [a bill], the normal process for this type of change would still include. . . . approximately a year of technical integration testing . . . to ensure that the feature could be effectively integrated into a note without interfering with security features . . .”); see also 2016 Wash Decl. ¶ 14 (“The primary reason for redesign of
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banknotes is to enhance the security of U.S. Federal Reserve Notes. Accordingly, [Treasury’s] development is based on closely monitoring counterfeit rates and other threat assessment data on U.S. notes in use around the world.”); First Lambert Decl. ¶ 4 (“Incorporating a[n] [RTF] into any denomination of Federal Reserve notes would require ensuring that it does not interfere with or degrade the ability of the [Federal Reserve’s] high-speed currency-processing machines to detect the overt and covert [security] features of the notes.”).
Attempting to design or implement an RTF without accounting for how the bill’s security features would be affected would amount to a derogation of duty by increasing potential risks to the security of the currency. Even if RTF in some yet undetermined form were added to the current version of the $10 bill, with no security updates, extensive testing would be required to ensure that anti-counterfeiting measures would not be compromised. See Def.’s Answers (Question 27) (“If BEP were ordered to affix an RTF on the legacy $10 note, regardless of potential effectiveness, it would still need to go through extensive testing to ensure that it . . . will not interfere with either the overt or covert security features on the existing $10 note.”). Moreover, RTF and security features vary by denomination, so such testing is needed for each redesigned bill, not merely for the first bill to incorporate a new security feature or RTF. As Treasury has explained, “[s]ecurity features and their placement, as well as the overall design of the bill, differ from one denomination to another.” Def.’s Answers (Question 22). Consequently, “[t]he incorporation of an RTF would necessarily affect the overall design of the bills, and thus would affect the design of each denomination, including potentially the effectiveness of security features.” Id. These fundamental realities of the redesign process for U.S. currency were the basis for the core principle underlying the original Injunction Order’s coupling of the timeline for accessibility redesigns with security redesigns, as well as for the
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denials of the plaintiffs’ first and second motions for modification of that Order. As Treasury has explained at length in response to the Court’s Questions, the reasons for continuing to couple the two redesigns remain sound.
Thus, for the reasons explained below, circumstances have not changed to the point where “continued enforcement [is] detrimental to the public interest.” Horne, 557 U.S. at 447 (internal quotation marks and citation omitted). To the contrary, the relief the plaintiffs seek, in the form of decoupling the meaningful access redesign from the security redesign and holding Treasury to hard and relatively short deadlines for providing meaningful access to currency, is neither in the public interest nor suitably tailored to the changed circumstances in this case. Given the complexities of designing a workable RTF, and the reality that RTF is the only possible large-scale modification that has been studied and tested in depth, the timelines proposed by the plaintiffs are infeasible. Further, requiring Treasury to prioritize the meaningful access redesign over the security redesign in order to meet the plaintiffs’ proposed deadlines would introduce unjustifiable risk to the security of U.S. currency. For each of these reasons, which are discussed in more detail below, the plaintiffs’ motion must be denied.
A. Circumstances Have Changed The plaintiffs have established that circumstances have changed, but not that continued enforcement of the Injunction Order is detrimental to the public interest, certainly when adoption of the plaintiffs’ suggested modifications would in fact result in such detriment. First, Treasury cannot and does not dispute that the redesign of U.S currency has been delayed well beyond what was anticipated when the Injunction Order was entered. Treasury simply offers excuses and explanations for why the delay is necessary in light of new counterfeiting technologies and why RTF is “far from the panacea touted by the plaintiffs,” along with vigorous argument as to why any meaningful access redesign must remain coupled with the ongoing security redesign.
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See Def.’s Opp’n to Pls.’ Third Mot. at 15–19. Yet any discussion of whether changed circumstances warrant modification, or warrant modification in the manner the plaintiffs request, must be separated from an analysis of whether changed circumstances exist.
At the time the Injunction Order was entered, the parties anticipated that the next redesign would occur between 2013 and 2018. Treasury now anticipates that a new $10 bill will not begin circulating until 2026, with subsequent denominations following at intervals of eighteen months to two years. Def.’s Answers (Question 13(a)), supra n.5. Further, these estimates assume that Treasury selects an RTF application method by December 2019, even though this benchmark date has been pushed back repeatedly, stymieing not only further testing but also Treasury’s ability to provide concrete cost estimates of decoupling the security redesign from the meaningful access redesign. See Def.’s Answers (Questions 13(b)(iv), 15, and 23), supra n.27.36 This “much greater than planned delay in providing meaningful access to visually impaired individuals is unquestionably a change in factual conditions.” Am. Council of the Blind

36

In response to the Court’s Question 13(b)(iv) (“In the event that the plaintiffs’ proposed order is adopted,

list . . . (b) the specific and potential estimated costs associated with: . . . (iv) testing costs.”), Treasury responded:

“Extensive testing would be required to determine whether the presence of an RTF in Federal Reserve notes would

cause the notes to get caught in or cause damage to the Federal Reserve’s high-speed currency-processing machines

or slow down their normal operation. Depending on the characteristics of the RTF, there is an unquantified risk that

raised features could result in accelerated wear on the sensors used in those machines. Testing to determine this risk

would also be time-consuming and expensive. These costs would be incurred and then incurred again a short time

later if an RTF were incorporated into the legacy $10 note, and then shortly thereafter the new $10 note design is

launched. Furthermore, if the testing revealed that the presence of the RTF disrupted or slowed the operation of the

Federal Reserve’s 128 specialized high-speed currency-processing machines, additional costs would be incurred to

determine what aspect of the RTF is involved and what part or parts of the machines were affected. Then, further

costs would be incurred to determine whether changes to the machines or to the RTF itself, or both, would be

necessary. Assuming machine reconfiguration were required, reconfiguring each of the 128 machines to enable

processing notes with an RTF without jamming or other disruptions or at slower processing speeds would require

extensive design work and testing, which would add unpredictable amounts of both expense and time to the process.

This testing and reconfiguration may have to be repeated if initial solutions prove ineffective. Even if

reconfiguration of its machines were unnecessary, the Federal Reserve would incur one-time costs associated with

implementation of the RTF and possible ongoing operational costs associated with slower processing speeds caused

by the RTF. Such ongoing costs could include the need to add machine shifts, which would result in increased labor

and maintenance costs. In light of these factors, it is impossible to estimate the precise costs that would be

associated with changes to the hardware and software of the Federal Reserve’s machines due to the addition of an

RTF to currency notes.” Def.’s Answers (Question 13(b)(iv)).

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v. Mnuchin, 878 F.3d at 366–67. Second, selecting an RTF application method that is effective, manufacturable in
sufficient quantity, durable, and capable of functioning in commercial and governmental machines has proven far more elusive than originally anticipated. See Def.’s Answers (Question 24).37 Although “a number of other nations have placed an RTF on their currency,” those RTFs “are generally not durable.” First Olijar Decl. ¶ 7. Moreover, most foreign currencies are not comparable to U.S. currency because they are “printed on a different type of paper or plastic, . . . are not made in anywhere near the volume of [U.S.] currency, and . . . have a much shorter circulation life.” Id. ¶ 8. “Banknotes are typically crumpled, exposed to harsh conditions, and sometimes completely immersed in water or even laundered through a machine,” making it difficult to design an “RTF that is robust enough to withstand normal handling.” 2016 Wash

37

In response to the Court’s Question 24 (“Provide an estimate, with a detailed description of the assumptions

about accuracy and durability, of how long it would take to introduce, with associated costs, a $10 bill with RTF for

circulation, if no other security redesigns were included, even if that RTF were not as durable or effective as a later

version might be.”), Treasury responded: “A usable tactile feature must meet four criteria: (1) it must be effective—

that is, it must allow blind persons to denominate currency accurately; (2) it must be manufacturable in sufficient

quantity on BEP’s machinery; (3) it must be sufficiently durable for U.S. currency; and (4) it must function in

commercial and governmental counting machines and inspection machines and in ATMs and vending machines.

If an RTF were added to the legacy $10 note, a great deal of additional testing would still be required.

Approximately a year of testing would be required to ensure that the feature could be effectively integrated into a

note without interfering with security features or other design elements. Approximately another year would be

required to ensure that BEP was able to produce the RTF in the volumes needed and without disrupting the

production process. BEP would allow private industry approximately two years to test and verify that the potential

RTF could work effectively in banknote counting machines, ATMs, and other machines. Some of this testing could

proceed simultaneously, but the entire process will likely take at least three years and potentially more, depending

on the results of the testing. Costs would also vary, depending on results of the testing. The above estimates assume

(1) that the RTF provides an accuracy rate that the Secretary of the Treasury determines to be acceptable, and (2)

that the resulting currency, with the RTF, passes the usual BEP durability testing. As noted in prior filings, the

Secretary is ultimately responsible for the design of U.S. currency. See 12 U.S.C. § 418. As part of longstanding

practice by BEP, all U.S. currency must survive a series of durability tests designed to simulate the actual use and

circulation of currency. These include a Crumble test which crushes currency a number of times, a Laundering test

which simulates accidental washing of currency, and a Chemical Resistance test which saturates the notes with

chemical substances, all to verify that the RTF will remain virtually intact and adhere to the note. All features of a

note, such as security features and an RTF, must be able to survive these tests. Additionally, the RTF will be subject

to a few new tests to assess its functionality, namely a Scrape test simulating abrasion with a coin or fingernail, and

a Humidity test with long exposure to hot and humid conditions, both to ensure that the RTF remains intact. See

[First Johnston Decl. ¶ 8]. As described above, since BEP has not yet determined the technological method for

adding a tactile feature to the currency, it is impossible to provide concrete cost estimates of any effort to add an

RTF to the legacy $10 note.” Def.’s Answers (Question 24).

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Decl. ¶ 5. Before selecting RTF, Treasury reviewed and discarded other options of creating a tactile feature or way to distinguish currency, including notches in the paper, perforations in the paper, and bills of different sizes. Def.’s Answers (Question 18).38 “Perforations and notches dramatically reduced the durability of currency notes by creating tear points during the stress of normal day-to-day handling,” a problem “exacerbated in a modern economy like that of the United States, in which currency must flow smoothly through high-speed processing (authentication and fitness sorting) equipment.” Id. As for bills of differing size, “[s]tudies showed that blind and visually impaired individuals could not manually distinguish bills of differing sizes unless the size differential was so large as to make the bills unusable in

38

In response to the Court’s Question 18 (“The defendant has described numerous concerns about RTF,

explaining that ‘many of the assumptions the [BEP] made in 2010 are no longer valid.’ Def.’s Supp. Status Rpt.

(Dec. 20, 2018) ¶ 13. Has the experience of developing and testing RTF led the defendant to conclude that other,

previously discarded options for providing meaningful access to currency, such as producing notes in different sizes,

should be re-evaluated for adoption?”), Treasury responded: “No. Despite the drawbacks and deficiencies of the

RTF, previously considered options have significant drawbacks that cannot be overcome. Early in the process, BEP

reviewed denomination schemes from over 60 countries and found most of them to be clearly ineffective or

impractical for United States currency. A few did appear to have some promise and were incorporated into design

and testing approaches but were later discarded, specifically: 1. Notches in the paper, 2. Perforations in the paper, 3.

Bills of different sizes. Perforations and notches dramatically reduced the durability of currency notes by creating

tear points during the stress of normal day-to-day handling. This problem would be exacerbated in a modern

economy like that of the United States, in which currency must flow smoothly through high-speed processing

(authentication and fitness sorting) equipment, without resulting in jams or damage. Bills of differing sizes were

also long ago discarded as not feasible. Studies showed that blind and visually impaired individuals could not

manually distinguish bills of differing sizes unless the size differential was so large as to make the bills unusable in

commerce. Although blind and visually impaired persons can distinguish bills that differ less in size by using an

external measuring device, that would largely replicate the potential situation with currency readers. Furthermore,

changing the size of the bills would be far more costly to the economy than an RTF. All of the testing required for

an RTF would be required for bills of differing size. In addition, that approach would render obsolete every cash

register, bill counting machine, ATM cash cassette, and cash acceptance slot in vending machines, transit systems,

and supermarkets. Most of BEP’s printing presses would have to be modified, and even most existing personal

wallets would become [un]usable. The impracticality of these three potential approaches is underscored by

plaintiffs’ exhibits, which strongly counsel against the use of ‘mechanical’ (non-RTF) methods of achieving

meaningful access. As exhibits to a recent filing, plaintiffs included comments provided by the American Bankers

Association, JPMorgan Chase & Co., and the Branch Banking and Trust Company (BB&T), in response to

defendant’s notice of proposed agency action in 2010. Those comments all raised the issue of the costs to the

industry due to the changes that will be required for cash processing and dispensing equipment, ATMs, retailers, and

vending machines. Additionally, they stated that the costs and burdens to the industry in implementing these

changes would depend on the final design, placement, and extent of the modifications. [Pls.’ Resp. to Def.’s 2018

Supp. Status Rpt., Ex. 1, Comments Submitted to Treasury Regarding Meaningful Access to U.S. Currency, at 1–7,

12–17, ECF No. 173-1]. Finally, any exploration of the previously discarded options would essentially turn the

clock back to 2011, requiring BEP to undertake the long and complicated experimental process, while likely

confirming that those options are not feasible.” Def.’s Answers (Question 18).

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commerce.” Id. In addition, “changing the size of the bills would be far more costly to the economy” as it “would render obsolete every cash register, bill counting machine, ATM cash cassette, and cash acceptance slot in vending machines, transit systems, and supermarkets.” Id. Thus, “[d]espite the drawbacks and deficiencies of the RTF, previously considered options have significant drawbacks that cannot be overcome.” Id.
In its quest for an effective RTF, Treasury has “reviewed over 60 potential denomination schemes of the RTF, prototyped and tested 11 variations, and eliminated all but one because they did not best meet the necessary criteria.” First Johnston Decl. ¶ 3. Two possibilities for RTF application methods are now being considered: Intaglio and Coated-Embossed. See Def.’s Supp. Status Rpt. (Dec. 20, 2018) ¶ 2. Treasury continues to anticipate that one of these two RTF application methods will be selected as most suited for currency by December 2019. See Jt. Status Rpt. (June 10, 2019) at 3. Even after an RTF application method has been selected, “the design will be subjected to additional testing. Def.’s Twentieth Status Rpt. (Sept. 17, 2018) ¶ 4, ECF No. 166. “As part of longstanding practice, all U.S. currency must survive a series of durability tests designed to simulate the actual use and circulation of currency. These include a Crumble test that crushes the currency a number of times, a Laundering test that simulates accidental washing of currency, and a Chemical Resistance test that saturates the bills with chemical substances.” Id. “All features of a bill, including security features and a tactile feature, must be able to survive these tests.” Id. “Additionally, the RTF [itself] will be subject to a few new tests to assess its functionality, namely a Scrape test simulating abrasion with a coin or fingernail, and a Humidity test with long exposure to hot and humid conditions, both to ensure that the RTF remains intact.” Def.’s Answers (Question 24), see supra n.37
After undergoing extensive testing and research, no RTF currently meets the
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requirements for U.S. currency. First Olijar Decl. ¶ 9. “Thicker tactile features are more durable and effective over time, but they will not function in the banknote processing and acceptance equipment and/or are not manufacturable due to the increased thickness of the notes.” Id. Even aside from these concerns, based on “observations of individual test groups,” Treasury believes that the accuracy rate of its sample RTF is “approximately 80% in one small focus group,” although it “range[s] from 52% to 90% across a range of feature forms and application technologies.” First Olijar Decl. ¶ 10; 2016 Wash Decl. ¶ 3; Def.’s Answers (Question 19), see supra n.30. While noting that “[a]t this point it is unclear what an acceptable error rate will be for real world use, . . . a 20% error rate appears quite high.” First Olijar Decl. ¶ 10. “Almost as important,” according to Treasury, is that focus group users express “an average confidence level of 3.5,” on a scale of 1 to 5, “that they have accurately denominated a bill.” Id. ¶ 11. The plaintiffs downplay these accuracy concerns, suggesting that, “[a]s a general matter, a blind user can request a new banknote from a cashier in place of a worn note,” Pls.’ Answers (Question 8), but this workaround also “[f]orc[es] the blind to rely upon strangers,” when making purchases, Pls.’ Third. Mot. at 12, the precise circumstance that an effective RTF is meant to avoid.39

39

In response to the Court’s Question 8 (“What is the plaintiffs’ position as to an acceptable accuracy rate for

RTF?”), the plaintiffs responded: “There is no single accuracy rate that could be defined as acceptable for any given

feature. An acceptable accuracy rate would depend upon a variety of factors, including the amount of time a

banknote has been in circulation. As a general matter, a blind user can request a new banknote from a cashier in

place of a worn note. Therefore, a lower accuracy rate on a worn banknote would be acceptable if the accuracy rate

on a new banknote were higher. Acceptable accuracy rates may also vary on the basis of the nature of an

individual’s disabilities. For example, lower accuracy rates can be expected with respect to individuals who have

lost tactile sensitivity. Acceptable accuracy rates also depend upon the amount of experience an individual has with

a particular feature. Thus, a lower accuracy rate is acceptable for individuals who have not had experience using a

particular feature. On the other hand, a higher accuracy rate should be expected with respect to persons who have

had a reasonable amount of experience in using the feature. Plaintiffs would also expect that accuracy rates in using

a particular feature would increase as the BEP itself develops experience in the manufacture of that feature, and

obtains user feedback concerning that feature. As such, the accuracy rates for a completely new feature may well be

lower than would be the accuracy rates after that feature has been in production over a period of time. Plaintiffs

further assert that the Secretary should pursue a multi-pronged approach to making currency accessible. A multi-

layered approach is preferable, because any single method of accessibility may not be suitable for the disparate

population that comprises the universe of blind and visually impaired individuals.” Pls.’ Answers (Question 8).

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B. The Significant Delay in Providing Meaningful Access Harms Plaintiffs Due to Treasury “devot[ing] extensive resources, time, and effort” to improve the access to currency for those who are visually impaired, U.S. currency is undeniably more accessible now than in 2008, when the Injunction Order was entered. See Def.’s Opp’n to Pls.’ Third Mot. at 19. First, Treasury has added “large, high-contrast numerals” that allow individuals with visual impairments to more easily identify currency. Id. at 19, 32. In response to the plaintiffs’ criticisms that more could be done to improve those high-contrast features, see Pls.’ Third Mot. at 31–33, Treasury explained that future releases of $10, $20, and $50 bills will include the large, high-contrast, varying colors that now appear on the $5 and $100 bills. Def.’s Answers (Question 20).40 Treasury has also implemented, with the National Library Service, a free currency reader program. Def.’s Opp’n to Pls.’ Third Mot. at 7, 19; Def.’s Answers (Question 16), see supra n.32. This technology has changed and improved over time. Treasury currently provides qualified citizens, at no cost, with an iBill currency reader, which “is of a compact key-fob style with a key ring . . . about the size of a typical vehicle remote” and “announces the denomination of a bill in a natural voice, a pattern of tones, or a pattern of vibrations, usually within one or two seconds after insertion of a bill.” Def.’s Opp’n to Pls.’ Third Mot. at 32–33 (citing Second Fynes Decl. ¶ 2). The iBill is a “small, lightweight device” that “quickly identifies a note with

40

In response to the Court’s Question 20 (“The plaintiffs are critical of the defendant’s efforts to add larger,

high-contrast numerals to bills as failing to provide meaningful access to currency for some vision-impaired persons

and urge that more be done to make bills meaningfully accessible to vision-impaired persons. See Pls.’ Third Mot.

at 31–33. Does the defendant intend to address those concerns by making further changes to the numerals or to the

coloring of bills as part of any upcoming redesign?”), Treasury responded: “Yes. When the current family of notes

was produced beginning in the 1990’s, larger bold and higher contrast numerals were added to the $5, $10, $20, $50

and $100 notes. The $10, $20 and $50 notes were the first three to be issued. BEP received feedback from the

visually impaired community indicating that the numeral should be larger and that the agency should further

increase the contrast with varying color. BEP accepted and concurred with that feedback. As [a] result, the next

two denominations to be issued, the $5 and $100 notes, included larger numbers and higher contrast. The Secretary

plans to incorporate these larger high-contrast numbers with varying color into the next family of notes.” Def.’s

Answers (Question 20).

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essentially 100 percent accuracy, even for worn, older design notes. Unlike the tactile feature, a currency reader is usable by blind individuals who also have tactile sensitivity issues, such as diabetic neuropathy.” Aug. 2017 Ltr. from BEP at 2. As of February 4, 2019, 68,078 currency readers have been distributed, Third Fynes Decl. ¶ 3, and Treasury claims “never [to have] received a report of an incorrect reading” from the iBill, Def.’s Opp’n to Pls.’ Third Mot. at 33. A figure from the 2014 GAO Report displays both the large, high-contrast “5” on the $5 bill and an illustration of the iBill.
2014 GAO Rpt. at “GAO Highlights.” Taking advantage of technology that barely existed in 2008, Treasury has also “fostered
the development of popular currency-reader applications for both Apple and Android mobile devices.” Def.’s Opp’n to Pls.’ Third Mot. at 19, 34–35. These mobile applications, which work without an Internet connection, “scan continuously looking for currency notes in front of the camera,” and “[o]nly a portion of the bill needs to be in front of the camera” to be read. Id. at 34. Upon identification of a bill, the application “announces the denomination of the bill after twoto-four seconds, in either an audible voice or a series of vibrations.” Id. Scanning can be accomplished either with one hand holding the mobile device while the bill rests on a surface, or with one hand holding the device and the other hand holding the bill. Id. These applications have been downloaded 84,992 times as of February 4, 2019. Third Fynes Decl. ¶ 2. To promote
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each of these technological advances and to learn about the needs of customers and businesses, representatives from Treasury have attended conferences and have “given more than a dozen interviews on media outlets, reading services, and [radio] programs.” Id. ¶¶ 4–6, 17, 20–26.
These advancements are laudable, but the D.C. Circuit has already concluded that these steps have not yet brought Treasury into compliance with the Rehabilitation Act. See Am. Council of the Blind v. Mnuchin, 878 F.3d at 366 (“With the newest timeline, the Secretary will be in violation of federal law for eight to twenty more years than it would have been had it met its expected timeline for currency redesigns when the injunction issued.”); id. at 368 (“[U]nder the Secretary’s current timeline,” the “Secretary’s ongoing violation of the Rehabilitation Act— which the parties reasonably expected to be cured in one decade . . . will stretch into a second decade, and most likely a third . . .”).
The declarations submitted in support of the plaintiffs’ motion highlight how the current design of U.S. currency leaves a person with visual disabilities vulnerable to being taken advantage of by strangers and limits that person’s ability to engage in common retail transactions or to participate in numerous employment and volunteer opportunities. See Pls.’ Third Mot. at 10–13, 19–27 (summarizing these declarations). For example, the Reverend Helen Jo Taliaferro, who has been blind since birth, attested that “[h]aving inaccessible currency has created significant stress” and that she has “been taken advantage of in the past, typically [by] someone giving [her] incorrect change.” Taliaferro Decl. ¶¶ 2, 4. In addition, “lack of accessible currency has limited [her] opportunities for more equal social inclusion,” such as being denied an opportunity to volunteer in a role that manages ticket sales as she is “unable to handle the cash box.” Id. ¶ 5. Similarly, Jeff Thom, who is totally blind, explained that although he is “extremely active in [his] community,” “there is a level of unsureness when [he] pay[s] with
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paper money,” as he “routinely question[s] whether [he] accurately folded different bills” to allow him to differentiate them and he “fear[s] that cashiers can be dishonest about the money they return.” Thom Decl. ¶¶ 2, 3, 5. Paul Mims, who lost his sight after an accident while stationed with the Navy in Vietnam, recounts his “road to independence after going blind,” and urges Treasury to provide meaningful access, particularly “[w]hen so many other countries have found ways” to do so. Mims Decl. ¶¶ 3, 4, 5.
The plaintiffs point to a number of disadvantages in the use of currency readers. They chiefly call attention to the fact that bills must be inserted one at a time into the iBill, which lacks the ability to add up the total of multiple bills, meaning that relying on currency readers to denominate bills in common transactions is slow, impractical for fast-moving retail exchanges, and “creates significant obstacles to employment opportunities requiring the handling of cash.” Pls.’ Third Mot. at 12. In order to keep track of bills that must be inserted one at a time, individuals using the currency reader are exposed to “substantial security risks . . . in a public environment” particularly when two hands are sometimes needed to handle both the currency reader and currency, id. at 21, which can make it virtually impossible to accept change and promptly determine that the amount is correct, id. at 23. Especially when combined with other necessary tasks, such as “maintain[ing] firm physical control over [a] [guide] dog,” id. at 21, or “maintain[ing] physical contact with [a child],” id at 21–22, the impracticalities of using currency readers for making simple, every day purchases become clear. In addition, the plaintiffs note that currency readers are easily lost, broken, or lose power, and that for these reasons many individuals continue to denominate their currency at home, folding the bills into particular patterns, in order to prepare for cash-based transactions. Id. at 19–27.
Smartphone applications are similarly deficient, as they generally require two hands for
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use and thus “create the same security concerns that exist when using the iBill,” id. at 29, with the additional obstacle that a smartphone “may not be affordable, especially for older Americans living on a fixed income,” id. at 30 (footnote omitted); see also Pls.’ Reply at 16–17 & n.10 (disputing Treasury’s contention that programs are available to help individuals with disabilities purchase smartphones). Seven plaintiffs submitted declarations explaining why they found currency readers or mobile applications to be unsatisfactory:
• Eric Bridges, who is completely blind and who is the Executive Director of the American Council of the Blind, attested that the iBill “is of little use in a public setting,” because using it “is a time-consuming process requiring a substantial number of hand movements.” Bridges Decl. ¶¶ 1, 2, 4, 5. “By tying up both hands with the use of the currency reader [he] is unable to maintain adequate physical contact with either [his] guide dog or [his young] son while denominating currency. It is therefore not possible for [him] to safely use the currency reader when in a public place.” Id. ¶ 7. Mr. Bridges explained that it is not possible to use the iBill to verify change without leaving bills exposed on the counter, posing a risk they will be stolen, and that “[i]t is embarrassing to make . . . customers behind [him] wait for several minutes” while he uses the iBill. Id. ¶¶ 14–16.
• Mark Richert, who has been blind since birth, is “continually reminded [of] the vulnerability of individuals who are blind each time [he] take[s] a taxi cab or visit[s] a store that relies on cash only transactions,” and believes that “electronic currency readers and mobile phone applications only create cumbersome work-arounds that are not always reliable” and “perpetuate separate but equal policies of exclusion.” Richert Decl. at 2–3;
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• Kim Charlson, who is completely blind, stated that “external currency readers . . . are of little utility, especially when making purchases in a public environment,” as she “often receive[s] an error message,” “especially when the bill is worn,” and the “reader is generally cumbersome to use.” Charlson Decl. ¶¶ 1, 2. Charlson claims that the “process of properly inserting the banknote into the currency reader is time consuming” and “requires the use of both hands.” Id. ¶ 2. As for mobile applications, “flat touch screens on most smartphones” are “inaccessible to the blind” and “aligning the camera . . . so as to capture the banknote image is often a difficult and time-consuming process” which also “requires use of both hands.” Id. ¶ 3. As a result of these concerns, Charlson “avoid[s] making spontaneous purchases in a retail environment.” Id. ¶ 4;
• Ernie Udo, who is a blinded veteran, avers that he “should not have to rely on the goodwill and trust of strangers or third-party technologies that are cumbersome and not always reliable in order to have access to the most basic things like food and clothing.” Udo Decl. ¶¶ 1, 4;
• Mark Adreon is blind and considers the currency readers and mobile applications “cumbersome” and “not a reasonable solution to accessing money denominations in real time.” Adreon Decl. ¶¶ 1, 2. For example, he cannot confirm the accuracy of change while in line without holding up other customers, and must step away, risking that he will not be believed if he returns to challenge the amount. Id. ¶ 3. “The challenge of trying to manage purchased goods, a guide dog, packages or backpacks or other items . . . is not only stressful but unreasonable when you consider other patrons are moving through this process [three] times as quickly.” Id. Given that Adreon has “traveled to a lot of other countries” where bills are different sizes or have RTF, he knows that “the
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experience of using [this foreign] currency is not only efficient but empowering.” Id. In short, “it is amazing to be treated like a person who is not only competent but like everyone else and not requiring ‘special’ treatment.” Id.; • Linda Schneider, who has been blind her whole life, believes that currency readers “work well enough, but in a crowded place such as a store, it is hard to get it out and use it to identify an unknown bill.” Schneider Decl. ¶¶ 1, 4. As a result, she continues to “fold[] [her] own money different ways to tell it apart, but that assumes that [she] ha[s] been given correct information about the bill in the first place and that [she] [does not] make a mistake in folding it.” Id. ¶ 3; and • Hannah Fairbairn, who is blind, explains that even when she folds her money a certain way, she has “learned how easy it is to get confused,” especially while “managing bags, a white cane, and [] money,” since it is “easy to forget last-minute changes, or to hold your wallet or purse oriented in a different way . . . so that bills are not where you think they are.” Fairbairn Decl. ¶¶ 1–4. Fairbairn finds the currency readers inadequate, as they require “a flat surface and good dexterity,” and “not much background noise because the voice or beep is soft.” Id. ¶ 5. While no declaration specifies the precise currency reader or mobile application causing dissatisfaction, Treasury suggests that the plaintiffs’ declarations refer to an “older, slower currency reader available commercially during [a] contractor study” rather than the iBill, “which did not exist at that time,” and thus the plaintiffs’ estimates of the time it take to use a currency reader for regular purchases “are inflated in several respects.” Def.’s Opp’n to Pls.’ Third. Mot. at 33. As for mobile applications, Treasury notes that smartphones are far more common now than in 2008, and that smartphones with flat screens are regularly made accessible to the blind by
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use of “screen-reader applications, such as the pre-installed VoiceOver for Apple devices and Talkback for Android devices.” Id. at 35 & n.12. Nevertheless, Treasury does not dispute that currency readers and mobile applications pose problems in fast-moving retail transactions, particularly when counting change received, and that they are an impractical means of enabling a blind person to work as a cashier.
In light of the significant delay in providing full meaningful access to currency, where external devices, mobile applications, and large, high-contrast numerals offer only incomplete relief, the conclusion is obvious that circumstances have changed since the Injunction Order in this case was originally entered. Yet, as discussed in the next sections, these changed circumstances do not necessarily warrant modification, particularly the modification requested by the plaintiffs.
C. Modification of the Injunction Would Not Be in the Public Interest Despite Treasury’s urgent need to respond to security threats and the harder-thananticipated process of designing a workable RTF, Treasury has never moved to modify or terminate the Injunction Order in this case. Rather, Treasury continues to work in good faith to comply, and the plaintiffs, not the enjoined party, now seek relief. As this Court has previously noted, see supra n.15, this unusual circumstance has no effect on the standard for considering whether modification of an injunction is warranted. Indeed, in its most recent decision in this case, the D.C. Circuit agreed that the plaintiffs’ motion was properly analyzed under Rule 60(b)(5). See Am. Council of the Blind v. Mnuchin, 878 F.3d at 366–67; see also see Pls.’ Third Mot. at 10–11 (analyzing the motion under Rule 60(b)(5)); Def.’s Opp’n to Pls.’ Third Mot. at 15–17 (same). Now that the plaintiffs have carried their burden of establishing that changed
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circumstances exist, the question is whether the relief requested is warranted because continued enforcement of the Injunction Order in its current form would be detrimental to the public interest. See Horne, 557 U.S. at 447. It is not. Decoupling the two redesigns in order to add an RTF feature to different denominations of bills would divert Treasury resources and attention from pressing anti-counterfeiting measures, as well as require retrofitting of current private sector and Federal Reserve Bank cash-processing machines, posing risks to the global security of U.S. currency with concomitant serious ramifications for consumers, businesses, and the health of the global economy. Given these other interests, and especially where a feasible RTF remains elusive, the public interest would decidedly not be served by modifying the Injunction Order as the plaintiffs request. See Am. Council of the Blind v. Mnuchin, 878 F.3d at 368 (concluding that because “institutional reform cases such as this one ‘reach beyond the parties involved directly in the suit,’” and “private third parties will unquestionably be affected by the currency redesign,” it is appropriate to consider third-party costs as part of the overall “public interest” (internal citations and quotation marks omitted) (quoting Rufo, 502 U.S. at 381; Twelve John Does, 861 F.2d at 298)).
The plaintiffs argue otherwise, urging consideration of the “continuing detrimental impacts upon the blind and visually impaired as a result of being deprived of meaningful access to currency,” Pls.’ Third Mot. at 11, which consideration “far outweighs any additional costs to the government and the private sector,” id. at 15. Moreover, the plaintiffs state that “requiring [Treasury] to adopt an accommodation prior to 2026 would not be disproportionate to the benefit,” id. at 11, when blind and visually impaired individuals “likely los[e] many millions of dollars each year . . . whether due to inadvertence or bad faith,” id. at 12.
Although the delay in providing meaningful access to currency imposes real harms on
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individuals who are blind or visually impaired, see supra Section III.B, those harms, when partially mitigated by the steps already taken, do not justify delaying an already postponed security redesign even further in order to prioritize the meaningful access redesign. The risks that such a course of action would introduce to the global economy and to the security of U.S. currency are simply too great, particularly when significant testing and development is required prior to introducing RTF on each bill denomination.41 If Treasury were required to implement RTF on the $10 bill by 2020, it would need to “divert extensive resources from its. . . . ongoing research and development efforts for security features being contemplated for the new family of notes,” Def.’s Answers (Question 14), and would delay the timeline for more secure notes by “at least two years or possibly more,” Def.’s Answers (Question 13(a)), supra n.5; see also Second Johnston Decl. ¶ 6.42 This delay would “leave the nation’s currency more vulnerable,” Def.’s

41

In response to the Court’s Question 21 (“Clarify whether public and private bodies conduct extensive

testing on each denomination when it is redesigned for security reasons, or whether only the first denomination with

newly designed security features requires extensive testing, whereas testing for later denominations is generally

simpler and less costly.”), Treasury responded: “Both government agencies and private industry need to conduct

extensive testing on each denomination when it is redesigned for security purposes.” Def.’s Answers (Question 21).

In response to the Court’s Question 22: (“Clarify whether public and private bodies would need to conduct

extensive testing on each denomination that incorporates RTF, or whether only the first denomination with RTF

would require extensive testing, whereas testing for later denominations would be generally simpler and less

costly.”), Treasury responded: “Both government agencies and private industry need to conduct extensive testing on

each denomination when it is redesigned for security purposes. Security features and their placement, as well as the

overall design of the bill, differ from one denomination to another. Similarly, once an RTF is incorporated into each

new denomination design, both public and private bodies would have to conduct similar extensive testing on each

denomination. The incorporation of an RTF would necessarily affect the overall design of the bills, and thus would

affect the design of each denomination, including potentially the effectiveness of security features. There is no way

to predict the results of this testing, and, if notes containing any feature failed the testing, there is no way to predict

how much additional development and testing would be required. See [First Johnston Decl.] ¶ 3; [First Lambert

Decl.] ¶¶ 5–6. Although testing on the first denomination containing an RTF may inform the testing on subsequent

denominations, the testing on each denomination would still have to be extensive. Any potential interference with a

security feature would always be a key concern. Since security features vary from denomination to denomination,

testing must be done for each denomination. At this point, it is unknown what the results of that testing would be

and how those results may vary from denomination to denomination. An RTF that interferes with one security

feature may pose no issues with another security feature.” Def.’s Answers (Question 22).

42

In response to the Court’s Question 14 (“In the event that the plaintiffs’ proposed order is adopted, would

the defendant be forced to prioritize a redesign incorporating RTF over the ongoing security redesign, and, if so,

would this reprioritization jeopardize the security of U.S. currency in any way? Provide any details available

regarding the costs to public and private entities of counterfeit bills.”), Treasury responded: “If BEP were required

to add a tactile feature to the existing legacy $10 note by the end of 2020, the agency would have to divert extensive

resources from its efforts to produce a new family of notes by 2026. Adding an RTF to existing notes would require

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Answers (Question 14), supra n.42, which would “domestically result[] in losses to individuals
and businesses[,] . . . increase[] law enforcement workload,” and “affect the confidence in and
acceptance of U.S. currency internationally.” Id. This country is at a high risk of counterfeit
notes, with “2.9 million counterfeit notes . . . with a face value of $140.7 million” circulating in
2017 alone. Id. Due to this risk, Treasury has both the incentive and the statutory duty, see 12
U.S.C. § 418, to complete the redesign of the currency as quickly as possible. Indeed, Treasury
is “working to accelerate the introduction of redesigned notes to address the increase [in
counterfeiting].” Def.’s Answers (Question 14), supra n.42; Def.’s Opp’n to Pls.’ Third Mot. at
20 (“[E]ach day that passes since the last redesign raises the risk of new security concerns. In
redesigning the currency, BEP has every incentive to produce a new and secure bill as quickly as
possible.”); see also Def.’s Opp’n to Pls.’ Third Mot. at 3 (explaining that the “Federal Reserve
Act requires . . . Treasury to design and produce [U.S.] currency ‘in form and tenor as directed
by the Secretary’ and ‘in the best manner to guard against counterfeits and fraudulent
alterations’” (quoting 12 U.S.C. § 418)).
The risk to the security of U.S. currency if the security redesign is pushed back for the
extensive testing, not only at BEP, but also at the Federal Reserve (cash processing equipment) and by manufacturers of ATMs, vending machines, etc. Testing would have to be done to ensure, among other things, that the new feature did not interfere with existing security features or impede the function of machinery. This testing would pull resources from ongoing research and development efforts for security features being contemplated for the new family of notes. BEP’s staff estimates that being required to add a tactile feature to the existing $10 note by the end of 2020 would likely push back the production date of 2026 by at least two years, and an additional two years for each of the other legacy notes. Currency is redesigned primarily to deter counterfeiting. Pushing back the production date for redesigned notes by two or more years would leave the nation’s currency more vulnerable. The threat from counterfeiters is constantly evolving, and a new generation of technologically sophisticated security features is needed to meet that threat. To illustrate the magnitude of that threat, in 2017, the last full year for which data are available, 2.9 million counterfeit notes were passed domestically with a face value of $140.7 million. Moreover, counterfeiting is increasing, and the Advanced Counterfeit Deterrence Steering Committee (BEP, Treasury, Secret Service, and the Federal Reserve) is working to accelerate the introduction of redesigned notes to address the increase. The increased value and volume of counterfeit notes passed (that is, used in a commercial transaction) domestically results in losses to individuals and businesses. It also results in an increased law enforcement workload. Furthermore, increased counterfeiting abroad can affect the confidence in and acceptance of U.S. currency internationally. The exact economic impact of counterfeiting is unknown.” Def.’s Answers (Question 14).
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sake of complying with the plaintiffs’ timelines is more than sufficient reason to conclude that modification of the injunction is not in the public interest. The plaintiffs, however, interpret the D.C. Circuit’s opinion to hold that in the event Treasury cannot provide more specific concrete estimates of the cost of decoupling, the plaintiffs win, and their timelines are mandated to be adopted. See Pls.’ Reply at 2 (“Any costs other than the additional costs of decoupling the two redesigns are irrelevant for purposes of this motion.”); Pls.’ Resp. to Show Cause Order at 3 (“[T]he primary reason for granting Plaintiffs’ motion is the failure of [Treasury] to provide concrete estimates of the additional costs of decoupling the accessibility redesign from the security redesign. This fact alone justifies granting Plaintiffs’ motion on the existing record.”); Pls.’ Answers (Question 5).43 This presumption may be one reason the plaintiffs originally declined the invitation to call government, or any, witnesses to an evidentiary hearing, preferring to “rest their case on the basis of their existing briefs plus the attachments.” Pls.’ Opp’n to Def.’s Mot. to Stay at 1. The plaintiffs presume too much. While the D.C. Circuit held that it was an abuse of discretion to deny the plaintiffs’ second motion for modification of the

43

In response to the Court’s Question 5 (“How do the plaintiffs propose for the Court to consider ‘[a] more

concrete estimate of the financial burden of incorporating a raised tactile feature,’ as directed by the D.C. Circuit,

Am. Council of the Blind v. Mnuchin, 878 F.3d at 369, including the difference in costs between a timeline based

solely on incorporating RTF and a timeline coupling the incorporation of RTF with other necessary redesigns, id.,

when the defendant continues to state that the ‘exact costs [of decoupling the RTF provision from the next redesign]

cannot be known until the Secretary identifies the best technological method for adding a tactile feature to the

currency’?”), the plaintiffs responded: “The Court of Appeals recognized that the cost of incorporating the RTF

depends upon the application method selected. Am. Council of the Blind v. Mnuchin, 878 F.3d at 370. The Court

also recognized that the Secretary has not yet selected an application method. Id. at 365 n.6. Therefore, the

Secretary must comply with the Court’s mandate, even if the Secretary has not yet selected the application method.

Plaintiffs’ understanding of the Court’s decision makes perfect[] sense, because it is by no means certain or even

likely that the application method selected will have any impact whatsoever on the additional costs of decoupling the

security from the accessibility redesigns. Plaintiffs believe that the vast majority of the additional costs to be

incurred as a consequence of incorporating the RTF will be incurred even if the security and accessibility redesigns

are undertaken in conjunction with each other. See Am. Council of the Blind v. Mnuchin, 878 F.3d at 370

(‘[W]hether machines such as ATMs must be changed in a redesign separate from the anti-counterfeiting redesign or

as part of the same redesign, the private sector will have to incur these costs.’). In any event, the Secretary has

narrowed the options for the RTF to two different application methods. Am. Council of the Blind v. Mnuchin, 878

F.3d at 365 n.6. The Secretary could have submitted two sets of decoupling cost estimates, one for each application

method. Therefore, the fact that the application method has not been finalized is not a defense to the Secretary’s

failure to comply with the Court’s mandate.” Pls.’ Answers (Question 5) (emphasis omitted).

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Injunction Order because of “potential increased costs” posed by the modification, where concrete cost estimates were not available, see Am. Council of the Blind v. Mnuchin, 878 F.3d at 367–71, nothing about that holding prevents fresh consideration of the record as it exists now, with updated and supplemental declarations and more detailed responses from both sides to the Court’s questions.
In light of Treasury’s explanation of the security risks that would result if it were required to prioritize the meaningful access redesign over the security redesign in order to meet the plaintiffs’ timelines, and especially where no workable RTF yet exists, the plaintiffs’ proposed modification of the injunction would not be in the public interest.
D. The Proposed Modifications are Not Suitably Tailored to Resolve the Changed Circumstances
For many of the same reasons that the plaintiffs’ modification of the injunction would not be in the public interest, their modification is not suitably tailored to resolve the specific problems created by the change in circumstances they identify: the prolonged delay in redesigning currency. The Supreme Court has explained that the “focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances” and that deference to “government administrators, who have the primary responsibility for elucidating, assessing, and solving the problems” is appropriate. Rufo, 502 U.S. at 391, 392 (internal quotation marks and citation omitted). Although the plaintiffs have successfully identified the lengthy delay in redesigning currency as a change in circumstances, they have offered no reason to believe that modifying the injunction to require Treasury to decouple the meaningful access redesign from the security redesign would “resolve the problems created by th[at] change in circumstances,” id. at 391, and achieve what they seek, which is currency that is meaningfully accessible by specified timelines. Treasury has explained there is
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not time to provide meaningful access to the blind with any new design feature other than RTF, Def.’s Answers (Question 18), supra n.38, and that circulation of currency with an RTF that meets the standards required of U.S. currency within the timelines proposed would be impossible and infeasible, Def.’s Answers (Question 27), supra n.34.
1. The Plaintiffs’ Proposed Modification Would Require RTF, Yet No RTF is Ready for Circulation
The plaintiffs demand that Treasury “should continually explore all options for the purposes of providing meaningful access to currency,” but that “this is not a reason to delay implementation of the most effective accommodations that are currently available.” Pls.’ Answers (Question 7).44 The plaintiffs are coy in identifying the “most effective accommodations” referenced, but presumably they mean RTF. This stance is reckless and at odds with their position, elsewhere, decrying iBills as “cumbersome and not always reliable,” see supra Section III.B. Whereas an iBill has an accuracy rate of close to 100 percent, the plaintiffs evidently believe that the version of RTF now available, which has an accuracy rate varying from 52 to 90 percent in small groups of individuals who are not necessarily representative of the entire population, should be applied to currency immediately. See 2016 Wash Decl. ¶ 3; First Olijar Decl. ¶ 10; Def.’s Answers (Question 19), supra n.30. Treasury has explained that attempting to circulate currency with RTF in its current state would give a false sense of security to individuals who rely on it instead of other methods of differentiating currency, and that

44

In response to the Court’s Question 7 (“The defendant has described numerous concerns about RTF,

explaining that ‘many of the assumptions the [BEP] made in 2010 are no longer valid.’ Def.’s Supp. Status Rpt.

(Dec. 20, 2018) ¶ 13. Do the plaintiffs believe that the defendant should explore other, previously discarded options

for providing meaningful access to currency, such as producing notes in different sizes? Would the plaintiffs

support such a reevaluation even if this further delayed the development of accessible currency?”), the plaintiffs

responded: “The Secretary should continually explore all options for the purposes of providing meaningful access

to currency. However, this is not a reason to delay implementation of the most effective accommodations that are

currently available. Therefore, Plaintiffs would not consent to further delay in the development of accessible

currency.” Pls.’ Answers (Question 7).

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introducing new versions of currency necessarily requires testing, educational campaigns, and a significant investment of resources, from both the public and the private sector—resources that would be poorly spent if devoted to an imperfect version of RTF and then an entirely new RTF or new version of the bill were introduced shortly thereafter. See Def.’s Opp’n to Pls.’ Third Mot. at 20–22, 29; Def.’s Answers (Question 13, 21, 22, 25), see supra nn. 5, 41.45 Demanding

45

In response to the Court’s Question 13(b) (“In the event that the plaintiffs’ proposed order is adopted, list . .

. (b) the specific and potential estimated costs associated with: (i) redesigning, manufacturing and distributing the

$10 bill with any new feature(s), including RTF, to provide meaningful access to currency for the blind and visually

impaired, (ii) education, (iii) upgrading banking equipment hardware or software, (iv) testing costs, (v) costs to

replace bills that wear down, and (vi) any other costs the defendant believes to be relevant.”), Treasury responded:

“(b)(i) Since BEP has not yet determined the technological method (application method) for adding a tactile feature

to currency, it is impossible to provide concrete cost estimates for any effort to add an RTF to the legacy $10 note at

this time. Furthermore, extensive testing in both the private and public sectors would be required. As noted in prior

filings, it is impossible to predict how well any proposed feature will do in testing. See [First Johnston Decl.] ¶ 8.

Moreover, should the feature fail any tests, costs would rise significantly, but not predictably. Should failure occur,

BEP would undertake a root-cause analysis to determine why. This process could be relatively short or lengthy,

depending on the causes and their nature. Once a cause is discovered, attempts to remedy the problem would begin.

The remediation process is also of unpredictable length. It may involve multiple rounds of additional testing, as the

technology and engineering offices attempt to find a solution. This adds a great deal of uncertainty to cost estimates.

(b)(ii) Educating the public about an RTF added to the legacy $10 note would be dramatically different from and far

more complex than any previous educational effort. The RTF is quite different from any existing currency feature

and would likely require different educational approaches. Effective public education regarding a tactile feature

would require designing and implementing an entirely new component of currency education to explain the visual

and tactile features of authentic notes both to the public at large, as well as to the blind and low-vision community.

Defendant cannot estimate the potential costs of developing, testing, and deploying a currency education program

that incorporates tactile educational materials and methods because no such program regarding U.S. currency has

been conducted in the past. Additionally, if an RTF were incorporated into the legacy $10 note and a new $10 note

were launched in a relatively short period thereafter, it would be necessary to develop two comprehensive but

different educational programs, with the second also launched in a relatively short period after the first. (b)(iii) As

stated in [First Lambert Decl.], upgrades to banking equipment hardware and software include hardware and

software for currency processing equipment at the Federal Reserve Banks, as well as for other banknote equipment

such as automated teller machines (“ATMs”) and machines used in gaming, retail, amusement, and food/beverage

businesses. The Federal Reserve Banks use 128 specialized high-speed currency-processing machines located at the

28 Reserve Bank offices across the country to separate notes of sufficient fitness from damaged or suspected

counterfeit notes. Incorporating an RTF into any denomination of Federal Reserve notes would require ensuring

that it does not interfere with or degrade the ability of the high-speed currency-processing machines to detect the

overt and covert security features of the notes. Determining whether an RTF would impair the ability of those

machines to make all of the necessary detections and to determine the fitness of a note would require extensive

testing, and, potentially, adjustments to both software and hardware for subsequent retesting. The Federal Reserve

upgraded its optical sensors in 2014 at a cost of $21 million over a five-month implementation period. It is believed

that such testing for an RTF would be time-consuming and expensive and could conceivably exceed the time and

expense of the upgrade in 2014. The Federal Reserve would expect industry participants in the banknote supply

chain, such as banknote equipment manufacturers (“BEMs”), to incur far greater costs due to implementation of an

RTF. Every BEM, from a company that makes bill acceptors to a company that makes ATMs and even those that

make high-speed casino and central bank machines, would need to complete extensive testing. Every such device

has picking and feeding mechanisms and a transport system that could be affected by an RTF. These costs would be

duplicated in relatively short succession if an RTF were added to the legacy $10 note and then a new design of the

$10 note were launched in a relatively short period of time thereafter. The following cost estimate is based on

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public testimony and the Federal Reserve’s relationship with the BEMs through the United States Cash Machine Group, which was established to improve communication between the Federal Reserve and BEMs. The number of machines that could be affected by an RTF, such as ATMs, gaming, retail, amusement, and food/beverage, is estimated at more than 9 million. Previous congressional testimony has estimated that the addition of an RTF to the currency could require hardware changes costing, on average, $350 for each such machine. Adding an RTF could require a one-time upgrade of the picking and feeding mechanism in each machine. Therefore, assuming all machines required hardware changes, those changes could cost up to approximately $3 billion. Software changes may also be needed, which would entail additional costs. . . . (b)(v) Since U.S. currency is not recalled or demonetized, legacy $10 notes issued with an RTF would co-circulate with non-RTF $10 notes for many years. The denominations of Federal Reserve notes that are circulated more widely become worn more rapidly, and require replacement more frequently, than notes in less widely circulated denominations. The cost of replacing a currency note depends primarily on the cost of manufacturing the note, which differs based on the presence or absence of security features on a given denomination. The cost of adding an RTF to a Federal Reserve note is not yet known, but would likely increase the cost of replacing notes with an RTF compared to the cost of replacing a note of the same denomination without an RTF. The Federal Reserve Board expects that users may handle notes with an RTF more than notes without an RTF, as users gain familiarity with the characteristics of the RTF and as they attempt to use the RTF to denominate the note. This is true not only of blind or low-vision users, but also of the public at large. Therefore, a note with an RTF could wear down more rapidly than a note of the same denomination without an RTF because it is handled more than non-RTF notes. See [Second Lambert Decl.] ¶ 25. Finally, the circulation and use of notes with an RTF will cause wear on the RTF itself. Because Federal Reserve notes do not currently contain RTFs, it is not possible to know the extent to which normal circulation and handling of, for example, a $10 note would wear down an RTF on such note. Also, as stated above, the RTF itself is likely to be handled more as users seek to become familiar with it and attempt to use it for denomination. The extent to which such handling would wear down the RTF feature itself is not known. Taking all of these factors into consideration, it is unknown at this point how adding an RTF to a note will affect its circulation life, but it is reasonable to assume that it will increase the general rate of wear. (b)(vi) BEP’s experience in producing the current family of notes highlights the importance of extensive preproduction and full production testing to reduce potential risks. The last note to be redesigned was the current $100 note. For the first time, BEP was producing a note that included a 3-D security ribbon. Unfortunately, once large-scale production began, BEP discovered that creases were being produced in a large number of notes, rendering them unsuitable for circulation. It took extensive effort and time to perform a rootcause analysis and determine appropriate remedies. These unexpected problems delayed the release of that $100 note by approximately three years. Later reviews determined that insufficient preproduction testing contributed to the problem in the production phase. Unexpected problems, such as creasing, can occur at any point in the development process. The remedy may be simple and inexpensive, or complex and very costly.” Def.’s Answers (Question 13(b)) (footnote omitted).
In response to the Court’s Question 25 (“What specifically is the harm, including any economic costs, of introducing an initial version of RTF on the $10 bill that may need adjustment to improve accuracy, durability, or other features before incorporation in the other denominations?”), Treasury responded: “Having such a singlefeature design change relatively soon before a bigger design change could increase public confusion about the features of authentic Federal Reserve notes, especially since both designs would co-circulate for a number of years. The fact that the United States does not recall or demonetize older note designs adds to the stability and attractiveness of United States currency as a world reserve currency. Because U.S. currency is not recalled or demonetized, however, legacy $10 notes issued with an RTF would co-circulate with older, non-RTF $10 notes for many years—and, later, with the new family of notes potentially incorporating a (possibly improved) RTF. The Currency Education Program currently estimates that the lifespan of a $10 note is approximately 4.5 years. See Lifespan Data, https://www.uscurrency.gov/life-cycle/data/life-span (last visited Feb. 7, 2019). The chance that a given user would receive a $10 note with an RTF, therefore, would be very limited in the first few years following issuance of $10 notes with an RTF. The primary focus of public currency education when a new note design is introduced is twofold. First, the public must be educated about what the new note looks like, in order to avoid the possibility that the new note might mistakenly be considered to be counterfeit based solely on the design change. Any design change which materially alters the appearance of a note, even if only targeted at a specific audience, requires educating the general public about the design change. This ensures that they understand what a genuine banknote looks like. For these reasons, currency education programs are targeted to the entire public and must educate the entire public about all features, even features of a new note that might be targeted to a specific part of
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that an RTF method be incorporated into U.S. currency immediately—regardless of whether it is accurate, confusing, capable of being processed in the machinery that runs our economy, or leaves currency vulnerable to security threats—is frankly irresponsible, not to mention irreconcilable with the plaintiffs’ argument, elsewhere, that an accurate, reliable means of identifying currency is necessary to integrate the blind into the economy.
The plaintiffs emphasize that they are not demanding RTF—or any other specific improvement—as a means of providing meaningful access to currency. See Pls.’ Answers (Question 6).46 Yet this concession does little to alleviate the problems posed if Treasury were

the public such as a low-vision feature like the large numeral ‘100’ on the back of the redesigned $100 note.

Second, the education program must ensure that the public understands the security features on the new note, and

how to use them. This ensures that the public is better-equipped to know that a new design note is authentic

compared to a counterfeit note that attempts to exploit unfamiliarity with new designs as a means of passing

counterfeit notes. The currency education program must be international in scope. Federal Reserve notes are used

around the world as a store of value and medium of exchange. Any changes to the appearance of the notes can

cause confusion. If people are not informed about the appearance and security features of a genuine Federal Reserve

note, they are at greater risk of becoming victims of counterfeiters passing fake notes. The potential for confusion—

and the exploitation of that confusion by counterfeiters—is greater in cases where there are multiple circulating

designs of authentic notes, which appear to be similar but have slight differences in design or security features. In

addition to educating individual currency users, the currency education program addresses institutional users such as

banks, currency exchange, and retail businesses that play an important role in facilitating currency circulation. The

confusion that can arise from having multiple circulating designs of authentic notes could cause these entities not to

accept legitimate notes, which itself could adversely affect confidence in United States money. Accordingly,

effective currency education programs must be broad in scale and address the general public both domestically and

internationally. As part of the currency education program, the Federal Reserve Board produces printed, online, and

video and audio materials for use by merchants, educators, law enforcement, and financial institutions to assist them

in identifying authentic Federal Reserve notes. Any single change to a note design, such as a change that only adds

an RTF to a single denomination, would require updating all of those materials to reflect the new design. All of the

foregoing requirements for currency education programs apply with equal strength to each denomination of

currency. Aside from the potential for confusion, incorporating an RTF into the legacy $10 note and again in

connection with the redesign of currency for counterfeit deterrence would require undertaking these educational

efforts multiple times. Assuming an RTF could meet all established durability, manufacturability, and functionality

criteria, the question of effectiveness must also be considered. In particular, the studies and research conducted to

date indicate that RTF users have a relatively low level of confidence in the accuracy of their denomination

determination. In addition, the lack of durability of the RTF may provide the segment of the population that

attempts to use it with a false sense of confidence. In this scenario, it would leave them vulnerable to making

mistakes and being taken advantage of, resulting in users being in a worse situation than they had been in

previously. As a result, supplemental methods that are nearly 100% accurate, such as readers and/or currency

denominating applications, have recently been introduced in many countries.” Def.’s Answers (Question 25).

46

In response to the Court’s Question 6 (“Explain how the plaintiffs have met their burden of establishing

that changed circumstances are significant enough to warrant relief, Am. Council of the Blind v. Mnuchin, 878 F.3d

at 366–67, when one circumstance is that the defendant’s development of RTF is not yet sufficiently advanced to

meet the plaintiffs’ proposed timelines, or even to provide concrete cost estimates of the cost of modifying the

injunction?” (citation omitted)), the plaintiffs responded: “The Court of Appeals recognized the challenges in

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required to meet the plaintiffs’ timelines, as Treasury has offered persuasive evidence that,
although other methods of providing meaningful access to currency have been studied, RTF
remains the most feasible method. See Def.’s Answers (Question 18), supra n.38 (noting that if
these non-RTF options were reconsidered it “would essentially turn the clock back to 2011,
requiring BEP to undertake the long and complicated experimental process, while likely
confirming that those options are not feasible”). Moreover, in light of the extensive testing and
study required for currency redesigns, Treasury has explained the impossibility of developing,
testing, and producing currency with a feature other than RTF by the plaintiffs’ timelines. See
id. Even if Treasury attempted to apply the currently available RTF, which does not meet the
specifications required for U.S. currency, to the “legacy” $10 note with no new security features,
“the entire process [of bringing that note into circulation] will likely take at least three years and
potentially more, depending on the results of the testing,” including a year of testing “to ensure
that the feature could be effectively integrated . . . with [current] security features” and another
year “to ensure that BEP [is] able to produce the RTF in the volumes needed,” plus two years for
developing a tactile feature, and also recognized that the Secretary had not yet selected an application method for that feature. Am. Council of the Blind v. Mnuchin, 878 F.3d at 365 & n.6. However, the Court nonetheless required the Secretary to provide concrete estimates as to the cost of decoupling the security from the accessibility redesign. The Secretary must therefore comply with the Court’s mandate, even assuming the existence of the circumstances stated in the Court’s question. In any event, the Secretary has not asserted that he is unable to meet the deadlines contained in Plaintiffs’ proposed order. Nor has he asserted that he is unable to provide the concrete cost estimates required by the Court of Appeals. Plaintiffs also do not believe that the extent to which RTF has been developed is a “changed circumstance” that should be taken into account in determining whether continued enforcement of the injunctive order is detrimental to the public interest. Rufo, 502 U.S. at 384. The extent of RTF development was not considered by the district court in issuing its injunctive order, and should not be considered in this Court in deciding whether relief is warranted. Plaintiffs observe in this regard that the injunctive order dated October 3, 2008 did not require incorporation of a RTF. Nor do Plaintiffs seek incorporation of a RTF in their motion to modify the injunctive order []. The proposed order merely requires accessibility by specific dates, as opposed to mandating specific methods of providing accessibility []. Therefore, any delays in developing the RTF do[] not qualify as a changed circumstance for purposes of the pending motion. Finally, a party seeking modification of the decree must demonstrate changed circumstances. However, the existence of changed circumstances is not a defense to a party resisting modification of the decree, especially when it is due to the Secretary’s willful failure to implement an effective method of providing accessibility. See NLRB v. Harris Teeter Supermarkets, 215 F.3d 32, 36 (D.C. Cir. 2000) (noting that “[s]elf-imposed hurdles and hurdles” do not qualify as changed circumstances). As noted [elsewhere], the Secretary’s failure to develop an effective feature is due to his own lack of reasonable diligence.” Pls.’ Answers (Question 6) (some internal citations omitted) (emphases in original).
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private industry “to test and verify that the potential RTF could work effectively in banknote counting machines, ATMs, and other machines.” Def.’s Answers (Question 24), supra n.37; Second Olijar Decl. ¶¶ 6–10; see also First Lambert Decl. ¶ 9 (“Adding an RTF to the existing $10 Federal Reserve note rather than awaiting the next redesign would require the foregoing testing procedures to be undertaken once, and then undertaken a second time in connection with the scheduled redesign.”).
The delay in choosing and implementing in U.S. currency a workable RTF is frustrating, but Treasury has provided sufficient explanation of the testing and process required for the redesign of each bill denomination to rebut the plaintiffs’ allegations that the delay is contrived or an issue of bad faith. The solution to this delay is not simply to ignore Treasury’s considered judgment, based on its extensive experience in the process and testing necessary for redesigning and circulating new versions of currency, and to require circulation of U.S. currency that Treasury has sworn would be inadequate. The solution, rather, is to rely on the partial steps Treasury has already offered (currency readers, high-contrast numerals, etc.), while improvements continue to be made to develop other methods of providing meaningful access to currency.
2. Treasury Attests That it is Impossible and Infeasible to Meet the Plaintiffs’ Deadlines
By purporting to leave the means of compliance entirely to Treasury’s discretion, but also demanding compliance with strict deadlines despite record evidence that those deadlines cannot be met by any feature except RTF, even though no RTF meets Treasury’s specifications, the plaintiffs demand the impossible. This Court will not. See AHA II, 867 F.3d at 167 (“[J]ust as a court may not require an agency to break the law, a court may not require an agency to render performance that is impossible.”).
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The plaintiffs protest that Treasury “present[ed] no factual basis for the infeasibility defense” and “should . . . be required to define the scope of” the “infeasibility defense” “prior to . . . an evidentiary hearing on this issue,” Pls.’ Resp. to Show Cause Order at 1–2, but they overlook both the extensive record that has been generated in this case and the necessity of granting appropriate deference to the government agency responsible for implementing the injunction. See Rufo, 502 U.S. at 392. While the plaintiffs are correct that Treasury only directly cited “infeasibility” in response to the Court’s supplemental questioning, that questioning was in turn prompted by Treasury’s original opposition to the plaintiffs’ motion, which consistently explained that “the exact costs” of decoupling the RTF provision from the next redesign “cannot be known until [Treasury] identifies the best technological method for adding a tactile feature to the currency.” See Def.’s Opp’n to Pls.’ Third Mot. at 2, 14–15, 21–22; First Olijar Decl. ¶ 12
Treasury has explained that neither the circulation of RTF currency nor the provision of concrete cost estimates and timelines can be achieved or accelerated until after an RTF application method is selected, under the current plan, in December 2019, and has provided extensive detail on the testing and other preparations required by private parties and the government prior to the introduction of new currency. Thus, the record adequately supports the conclusion that it would not be feasible for Treasury to meet the plaintiffs’ timeline for providing meaningful access to currency, and that the plaintiffs’ proposed modification is neither in the public interest nor suitably tailored to the changed circumstances. As an alternative, the plaintiffs proposed that Treasury be ordered to redesign, by December 31, 2026, whatever denominations were feasible to redesign by that date. See Jt. Status Rpt. (June 10, 2019) at 2. For the reasons discussed at length, the public interest militates strongly against setting a specific deadline for providing meaningful access to currency that is decoupled from the security
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redesign, especially where Treasury already plans to begin circulating the redesigned $10 in 2026.
3. Despite Changed Circumstances, the Core of the Injunction Order Remains Valid
Although, with the benefit of the expanded record, the plaintiffs’ motion must be denied, the lengthy delay in the redesign has undeniably resulted in real harm for individuals with visual impairments and for the security of U.S. currency. Until Treasury completes its process of providing meaningful access to currency, individuals who are visually impaired or blind are denied full access to the benefits of that currency, including economic and volunteer opportunities, and the currency that does exist is vulnerable to security threats that Treasury has yet to adequately counter. The core of the 2008 Injunction Order was to require Treasury to concurrently meet its twin obligations to provide meaningful access to currency and to guard the security of that currency. The record in this case amplifies why that core still holds. Both redesigns have been delayed for unanticipated, independent reasons, yet RTF, especially in its nascent form, is not fully independent from any new security features. Any RTF must work in concert with any new security feature, and a change to either feature requires updates and testing for the private and public sector.
Meanwhile, Treasury has implemented and publicized a free currency reader program, fostered the development of mobile applications that denominate currency, added colors and large, high-contrast numerals to bills, and done exhaustive research and testing to develop an RTF that is durable, effective, accurately distinguishable, and compatible with public and private cash-processing machinery. With these advances, the plaintiffs have come a long way toward securing each of the forms of relief they originally requested in their FAC, and Treasury has demonstrated its commitment to complying with the Injunctive Order. It is not possible, at this
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time, to offer the plaintiffs anything more than what their injunction has already achieved. With the two redesigns remaining coupled, Treasury has every incentive to redesign
currency as quickly as possible, and has been working in good faith to do so. No modification, least of all the modification the plaintiffs propose, is needed to enforce those incentives. Moreover, demanding strict adherence to deadlines for providing meaningful access would do nothing to address the root causes of the delay: required security updates and ongoing difficulties developing a durable, workable, and accurate RTF. When production of a bill with RTF that meets Treasury’s reasonable specifications by the plaintiffs’ deadlines is impossible and infeasible, and when doing so would cause Treasury to “divert extensive resources from its efforts to produce a new family of notes by 2026,” “leav[ing] the nation’s currency more vulnerable” to a “constantly evolving” threat of counterfeiters,” Def.’s Answers (Question 14), supra n.42, the conclusion, once again, is that the injunction should not be modified because the “burden of decoupling the timelines . . . render[s] the Secretary’s ongoing violation of the Rehabilitation Act . . . equitable.” See Am. Council of the Blind v. Mnuchin, 878 F.3d at 368. IV. CONCLUSION
For the foregoing reasons, the plaintiffs’ Renewed Motion to Modify the Court’s Injunction Order Dated October 3, 2008 is DENIED.
An appropriate order accompanies this Memorandum Opinion.

Date: August 22, 2019

__________________________ BERYL A. HOWELL Chief Judge

77

 
 APPEAL,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:02−cv−00864−BAH

AMERICAN COUNCIL OF THE BLIND et al v. O'NEILL et al Date Filed: 05/03/2002

Assigned to: Chief Judge Beryl A. Howell

Jury Demand: None

Case in other court: USCA, 17−05013

Nature of Suit: 442 Civil Rights: Jobs

USCA, 19−05284

Jurisdiction: U.S. Government Defendant

Cause: 29:0794 Job Discrimination (Handicap)

Plaintiff

AMERICAN COUNCIL OF THE BLIND

represented by Jeffrey A. Lovitky JEFFREY A. LOVITKY, ATTORNEY AT LAW 1776 K Street, NW Suite 800 Washington, DC 20006 (202) 429−3393 Fax: (202) 318−4013 Email: lovitky@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PATRICK SHEEHAN

represented by Jeffrey A. Lovitky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff OTIS STEPHENS

represented by Jeffrey A. Lovitky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant PAUL H. O'NEILL Secretary of the Treasury TERMINATED: 06/27/2012
Defendant ROSARIO MARIN Treasurer of the United States TERMINATED: 03/31/2004
Defendant

represented by W. Scott Simpson DEPARTMENT OF JUSTICE Civil Division 318 South Sixth Street Room 244 Springfield, IL 62701 (202) 514−3495 Fax: (217) 492−4888 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

TIMOTHY F. GEITHNER Secretary of the Treasury TERMINATED: 07/05/2013 Defendant JACOB J. LEW Secretary of the Treasury TERMINATED: 03/16/2017 Defendant STEVEN T. MNUCHIN Secretary of the Treasury
Amicus NATIONAL AUTOMATIC MERCHANDISING ASSOCIATION
Amicus NATIONAL COUNCIL ON DISABILITY

W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Justin Michael Sandberg U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Room 11004 Washington, DC 20005 (202) 514−5838 Fax: (202) 616−8202 Email: justin.sandberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles Michael Deese HOWE & HUTTON, LTD. 1485 Chain Bridge Road Suite 204 McLean, VA 22101 (571) 499−6686 X103 Fax: (312) 372−6682 Email: cmd@howehutton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward W. Correia CORREIA & OSOLINIK 1101 30th Street, NW Suite 500 Washington, DC 20007 (202) 380−3595 Fax: (202) 637−2201 Email: ecorreia@correiadc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/03/2002
05/03/2002

# Docket Text
1 COMPLAINT against ROSARIO MARIN, PAUL H. O'NEILL ( Filing fee $150 ). Filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (aet, ) (Entered: 05/06/2002)
SUMMONS Issued (4) as to ROSARIO MARIN ; PAUL H. O'NEILL , U.S. Attorney and U.S. Attorney General (aet, ) (Entered: 05/06/2002)

05/16/2002 06/13/2002 06/25/2002 06/27/2002 06/28/2002 08/06/2002 08/07/2002 08/29/2002
08/30/2002
09/03/2002 09/05/2002 10/30/2002 11/04/2002 11/05/2002 11/12/2002 11/26/2002 03/31/2003 04/02/2003 04/02/2003

2 ORDER establishing procedures for electronic filing. Signed by Judge James Robertson on May 16, 2002. (MT) (Entered: 05/16/2002)
3 AFFIDAVIT of Service by AMERICAN COUNCIL OF THE BLIND. (Lovitky, Jeffrey) (Entered: 06/13/2002)
4 NOTICE OF APPEARANCE OF COUNSEL by all defendants (Simpson, W.) (Entered: 06/25/2002)
5 STIPULATION re 1 REQUEST FOR ORDER TO EXTEND RESPONSE DATE by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 06/27/2002)
MINUTE ENTRY: Court approves the stipulation 5 and grants the extension of time to August 15, 2002. Signed by Judge James Robertson on June 28, 2002. (MT) (Entered: 06/28/2002)
6 STIPULATION re 1 SECOND REQUEST FOR ORDER TO EXTEND RESPONSE DATE by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 08/06/2002)
MINUTE ENTRY: Court grants defendants' consented stipulation for extension of time 6 to August 29, 2002. Signed by Judge James Robertson on August 7, 2002. (MT) (Entered: 08/07/2002)
7 ENTERED IN ERROR..... MOTION for Summary Judgment by ROSARIO MARIN, PAUL H. O'NEILL. (Attachments: # 1 Declaration of Thomas A. Ferguson# 2 Defendants' Statement of Material Facts)(Simpson, W.) Modified on 8/30/2002 (bcs, ). (Entered: 08/29/2002)
8 MOTION for Summary Judgment with Memorandum of Points and Authorities and Statement of Material Facts, by ROSARIO MARIN, PAUL H. O'NEILL. (Attachments: # 1 Declaration of Thomas A. Ferguson)(Simpson, W.) (Entered: 08/30/2002)
9 MOTION for Extension of Time to File Response/Reply re 8 by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 09/03/2002)
MINUTE ENTRY: Court approves and "so orders" this stipulation 9 extending the time to October 31, 2002 for filing a response to the motion for summary judgment. Signed by Judge James Robertson on September 5, 2002. (MT) (Entered: 09/05/2002)
10 Memorandum in opposition to motion re 8 filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 10/30/2002)
11 STIPULATION re 10 AND REQUEST FOR ORDER TO EXTEND REPLY DATE by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 11/04/2002)
MINUTE ENTRY: Court approves and "so orders" stipulation to extend time to reply to November 13, 2002 11 . Signed by Judge James Robertson on November 4, 2002. (MT) (Entered: 11/05/2002)
12 REPLY in support of motion re 8 for Summary Judgment filed by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 11/12/2002)
13 NOTICE of Change of Address by W. Scott Simpson (Simpson, W.) (Entered: 11/26/2002)
14 ORDER denying defendants' motion for summary judgment 8 . The Clerk is directed to set a status conference. Signed by Judge James Robertson on March 31, 2003. (MT) (Entered: 03/31/2003)
Calendar Entry, Set/Reset Hearings: Status Conference set for 4/18/2003 04:30 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 04/02/2003)
Calendar Entry, Set/Reset Hearings: Status Conference re−set for 4/22/2003 04:30 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 04/02/2003)

04/22/2003
04/28/2003
05/28/2003 06/27/2003 07/10/2003 08/12/2003 09/10/2003 03/31/2004 03/31/2004 04/30/2004 05/13/2004 05/24/2004 05/26/2004 06/04/2004 06/08/2004 06/22/2004
06/30/2004 07/22/2004

Calendar Entry, Set/Reset Hearings: Status Conference set for 4/28/2003 09:00 AM in Courtroom 18 before Judge James Robertson. Counsel for the plaintiff may appear by phone. Counsel for the plaintiff may call into courtroom 18 at (202) 354−3478. Counsel for the plaintiff is encouraged not to use a cell phone. If there are any questions, you may contact the courtroom deputy for Judge Robertson, Dereck Miller, at (202) 354−3182. (dam, ) (Entered: 04/22/2003)
Minute Entryfor proceedings held before Judge James Robertson : Status Conference held on 4/28/2003. Plaintiff's counsel appeared by telephone, Defendants motion to dismiss due 30 days from today's date, plaintiff response due 45 days afterwards, defendant reply due 15 days after that. (Court Reporter Dennis Dinkel.) (dam, ) (Entered: 05/09/2003)
15 MOTION to Dismiss with Memorandum of Points and Authorities in Support Thereof by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 05/28/2003)
16 STIPULATION and Request for Extension by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 06/27/2003)
MINUTE ENTRY: Court grants stipulated motion for extension of time 16 to August 14, 2003. Signed by Judge James Robertson on July 10, 2003. (MT) (Entered: 07/10/2003)
17 Memorandum in opposition to motion re 15 Motion to Dismiss filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 08/12/2003)
18 REPLY in support of motion re 15 Motion to Dismiss filed by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 09/10/2003)
19 MEMORANDUM. Signed by Judge James Robertson on March 31, 2004. (MT) (Entered: 03/31/2004)
20 ORDER denying defendants' motion to dismiss 15 except that the Treasurer of the United States is dismissed as a defendant. Signed by Judge James Robertson on March 31, 2004. (MT) (Entered: 03/31/2004)
Status Conference set for 5/14/2004 09:30 AM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 04/30/2004)
Status Conference re−set for 5/25/2004 04:45 PM before Judge James Robertson. Please check the lobby area of the courthouse on the first floor for the courtroom assignment and floor. (dam, ) (Entered: 05/13/2004)
Status Conference re−set for 6/9/2004 04:30 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 05/24/2004)
Status Conference re−set for 7/1/2004 04:45 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 05/26/2004)
21 ANSWER to Complaint by ROSARIO MARIN, PAUL H. O'NEILL.(Simpson, W.) (Entered: 06/04/2004)
22 STATUS REPORT Report of Parties' Conference under Local Rule 16.3 by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 06/08/2004)
23 Joint MOTION for Order to Cancel Status Conference by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order Order to Cancel Status Conference)(Lovitky, Jeffrey) (Entered: 06/22/2004)
24 ORDER granting joint motion to cancel ISC set for July 1, 2004. A status conference is set for February 16, 2005 at 4:30 p.m . Signed by Judge James Robertson on June 30, 2004. (MT) (Entered: 06/30/2004)
25 STIPULATION AND PROTECTIVE ORDER by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 07/22/2004)

07/23/2004 10/14/2004 10/15/2004 10/29/2004 01/18/2005 02/03/2005 02/18/2005 02/18/2005 02/25/2005 03/02/2005 04/14/2005 08/31/2005
08/31/2005 08/31/2005

MINUTE ENTRY: Court approves and so orders stipulation and protective order 25 . Signed by Judge James Robertson on July 23, 2004. (MT) (Entered: 07/23/2004)
26 STIPULATION and Request for Order to Change Case Schedule by PAUL H. O'NEILL. (Simpson, W.) (Entered: 10/14/2004)
27 ORDER granting stipulated request to change case schedule 26 . The Clerk will reset the February 16, 2005 status conference. Signed by Judge James Robertson on October 15, 2004. (MT) (Entered: 10/15/2004)
Status Conference re−set for 4/26/2005 02:00 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 10/30/2004)
28 STIPULATION and Request for Order to Change Case Schedule by PAUL H. O'NEILL. (Simpson, W.) (Entered: 01/18/2005)
29 STIPULATION Second Stipulation and Protective Order by PAUL H. O'NEILL. (Simpson, W.) Modified on 2/4/2005 (lc, ). (Entered: 02/03/2005)
30 ORDER re stipulated request for further changes in scheduling 28 . Signed by Judge James Robertson on February 18, 2005. (MT) (Entered: 02/18/2005)
MINUTE ENTRY: Court approves and so orders stipulation and protective order 29 . Signed by Judge James Robertson on February 18, 2005. (MT) (Entered: 02/18/2005)
31 STIPULATION Third Stipulation and Protective Order by PAUL H. O'NEILL. (Simpson, W.) (Entered: 02/25/2005)
MINUTE ORDER: Court approves and so orders the parties' third stipulation and protective order 31 . Signed by Judge James Robertson on March 2, 2005. (MT) (Entered: 03/02/2005)
32 NOTICE of Unavailability of Counsel for Defendant by PAUL H. O'NEILL (Simpson, W.) (Entered: 04/14/2005)
33 MOTION to Dismiss or for Summary Judgment (Renewed) with Memorandum of Points and Authorities and Statement of Material Facts by PAUL H. O'NEILL. (Attachments: # 1 Exhibit Deposition Excerpts of Melanie Brunson# 2 Exhibit Deposition Excerpts of Dr. Otis Stephens# 3 Exhibit Deposition Excerpts of Patrick Sheehan# 4 Affidavit Declaration of Thomas A. Ferguson# 5 Affidavit Declaration of Julia Wilson# 6 Affidavit Supplemental Declaration of Thomas A. Ferguson)(Simpson, W.) (Entered: 08/31/2005)
34 ERRATA by PAUL H. O'NEILL. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 08/31/2005)
35 MOTION for Summary Judgment by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order # 2 Index of Exhibits# 3 Exhibit P−1, 1983 Study# 4 Exhibit P−2, NAS Study Part I# 5 Exhibit P−2, NAS Study, Part II# 6 Exhibit P−3, Reproduction of $50 and $20 notes# 7 Exhibit P−4, BEP Description of Color − $20# 8 Exhibit P−5, BEP Description of Color − $50# 9 Exhibit P−6, Def. Response to Interrogatories No's 14−22# 10 Exhibit P−7, Def. Response to Interrogatories No's 1−13# 11 Exhibit P−8, Declaration of Patrick Sheehan# 12 Exhibit P−9, Declaration of Lorraine Marchi# 13 Exhibit P−10, BEP Explanation for Use of Green Ink# 14 Exhibit P−11, Declaration of Julia Wilson# 15 Exhibit P−12, Declaration of ourmoneytoo.org# 16 Exhibit P−13, RFQ Specifications# 17 Exhibit P−14, Def. Response to Document productions Request No's 17−28# 18 Exhibit P−15, Letter from Defendant's Counsel dated August 1, 2005# 19 Exhibit P−16, Tactile Feature for the Blind, Part I# 20 Exhibit P−16, Tactile Feature for the Blind, Part II# 21 Exhibit P−16, Tactile Feature for the Blind, Part III# 22 Exhibit P−17, Memorandum from Stone to Ferguson# 23 Exhibt P−18, Report by Deloitte and Touche, Part I# 24 Exhibit P−18, Report Prepared by Deloitte & Touche, Part II# 25 Exhibit P−19, Eurovision, Understanding Euro Notes, Part !# 26 Exhibit P−19, EuroVision Understanding Euro Notes, Part II# 27 Exhibit P−20, Bank of Canada, Accessibility Features# 28 Exhibit P−21, Ferguson Declaration# 29 Exhibit P−22, BEP Description of Intaglio Process# 30 Exhibit P−23, Cost Impact of Enlarged Numeral# 31 Exhibit P−24, Def. Response to Document Production Request No's 10−16# 32 Exhibit P−25, Email from Len Olijar# 33 Exhibit P−26, Cost Impact of

08/31/2005 09/02/2005 09/08/2005 09/08/2005 09/08/2005 09/15/2005 09/16/2005 09/23/2005 10/26/2005
10/26/2005
11/02/2005 11/07/2005 11/07/2005

Embossing Feature# 34 Exhibit P−27, Cost Impact of Perforation Feature# 35 Exhibit P−28, Cost Impact of Foil Stamp# 36 Exhibit P−29, Cost Impact of Offset Printing Feature# 37 Exhibit P−30, Declaration of Otis Stephens# 38 Exhibit P−31, Reserved# 39 Exhibit P−32, Bank of Japan, Description of Yen Note# 40 Exhibit P−33, Copy of Swiss Bank Note# 41 Exhibit P−34, 2004 CFO Report, Part I# 42 Exhibit P−34, 2004 CFO Report, Part II# 43 Exhibit P−35, Federal Reserve Board FAQ# 44 Exhibit P−36, Declaration of H.H. Holton# 45 Exhibit P−37, NIH Statistics on Visual Impairments)(Lovitky, Jeffrey) (Entered: 08/31/2005)
36 MOTION for Summary Judgment by PAUL H. O'NEILL (see docket entry #33 for document images). (lc, ) (Entered: 09/01/2005)
37 MOTION for Leave to File a Memorandum as an Amicus Curiae by NATIONAL AUTOMATIC MERCHANDISING ASSOCIATION. (Attachments: # 1 Exhibit Proposed Amicus Brief)(nmw, ) (Entered: 09/06/2005)
MINUTE ORDER: Court grants National Automatic Merchandising Association's motion for leave to file as an amicus curiae 37 . Signed by Judge James Robertson on September 8, 2005. (MT) (Entered: 09/08/2005)
38 MOTION to Exclude Evidence by PAUL H. O'NEILL. (Attachments: # 1 Plaintiffs' Initial Disclosure Statement# 2 Text of Proposed Order)(Simpson, W.) (Entered: 09/08/2005)
39 AMICUS BRIEF by NATIONAL AUTOMATIC MERCHANDISING ASSOCIATION. (lc, ) (Entered: 09/09/2005)
40 Memorandum in opposition to motion re 38 Exclusion of Evidence filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Fedex Receipt)(Lovitky, Jeffrey) (Entered: 09/15/2005)
41 REPLY to opposition to motion re 38 Motion to Exclude Evidence filed by PAUL H. O'NEILL. (Simpson, W.) (Entered: 09/16/2005)
42 ORDER granting in part and denying in part defendant's motion to exclude evidence 38 . Signed by Judge James Robertson on September 23, 2005. (MT) (Entered: 09/23/2005)
43 Memorandum in opposition to motion re 35 and Defendant's Response to Plaintiffs' Rule 7.1 Statement of Material Facts Not in Dispute filed by PAUL H. O'NEILL. (Attachments: # 1 Affidavit Declaration of Thomas A. Ferguson in Response to Plaintiffs' Motion for Summary Judgment# 2 Exhibit Defendant's Response to Plaintiffs' Second Request for Production of Documents# 3 Exhibit Defendant's Initial Disclosures)(Simpson, W.) (Entered: 10/26/2005)
44 Memorandum in opposition to motion re 33 and Plaintiff's response to Defendant's Rule 7.1 Statement of Material Facts Not in Dispute filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit Exhibit P−38, DOJ Guide to Disability Rights Laws# 2 Exhibit Exhibit P−39, Treasury organization chart# 3 Exhibit Exhibit P−40, ACB Resolutions# 4 Exhibit Exhibit P−41, email from Scott Simpson, dated August 8, 2005# 5 Exhibit Exhibit P−42, 2005 Annual Budget Review# 6 Exhibit Exhibit P−43, House Res. No. 122# 7 Exhibit Exhibit P−44, NAS Project Description# 8 Exhibit Exhibit P−45, email dated Oct. 21, 2005)(Lovitky, Jeffrey) (Entered: 10/26/2005)
45 MOTION To Suspend Briefing on the Merits Pending Plaintiffs' Motion for Leave to Amend by PAUL H. O'NEILL. (Attachments: # 1 Affidavit Declaration of W. Scott Simpson# 2 Text of Proposed Order)(Simpson, W.) (Entered: 11/02/2005)
46 Memorandum in opposition to motion re 45 filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit Exhibit P−46; Def. Response to Document Production Request No's 1−7)(Lovitky, Jeffrey) (Entered: 11/07/2005)
47 MOTION to Amend/Correct 1 Complaint by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Amended Complaint# 2 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 11/07/2005)

11/08/2005 11/09/2005 11/14/2005 11/16/2005 11/21/2005 11/21/2005 11/22/2005
11/23/2005 11/29/2005 01/05/2006 01/05/2006 01/06/2006 01/06/2006 01/13/2006 01/13/2006 01/13/2006

48 REPLY to opposition to motion re 45 to Suspend Briefing on the Merits Pending Plaintiffs' Motion for Leave to Amend filed by PAUL H. O'NEILL. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 11/08/2005)
49 STIPULATION and Modified Protective Order by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 11/09/2005)
50 MOTION to Amend/Correct 1 Complaint Modified Motion for Leave to Amend by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Revised Amended Complaint# 2 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 11/14/2005)
MINUTE ORDER: Court approves and so orders stipulation and modified protective order 49 . Signed by Judge James Robertson on November 16, 2005. (MT) (Entered: 11/16/2005)
51 Memorandum in opposition to motion re 50 and 47 Plaintiffs' Motion for Leave to Amend Complaint and Modified Motion for Leave to Amend filed by PAUL H. O'NEILL. (Simpson, W.) (Entered: 11/21/2005)
52 MOTION for Extension of Time to File Response/Reply as to 44 Memorandum in Opposition,, to Defendant's Renewed Motion to Dismiss or for Summary Judgment by PAUL H. O'NEILL. (Attachments: # 1 Text of Proposed Order # 2 Text of Proposed Order)(Simpson, W.) (Entered: 11/21/2005)
ORDER granting 45 defendant's motion to suspend briefing on the merits pending plaintiffs' motion for leave to amend, granting 50 plaintiffs' modified motion for leave to amend, finding as moot 47 plaintiffs' motion to amend, and granting 52 defendant's motion for extension of time to file response to defendant's renewed motion to dismiss or for summary judgment. The parties are directed to meet, confer, agree upon, and advise the court as to a revised schedule for the completion of briefing. Signed by Judge James Robertson on 11/22/05. (Robertson, James) (Entered: 11/22/2005)
53 AMENDED COMPLAINT against PAUL H. O'NEILL, ROSARIO MARINfiled by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS.(lc, ) (Entered: 11/28/2005)
54 STIPULATION and Request for Order to Set Schedule by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 11/29/2005)
55 MOTION for Order Setting Briefing Schedule and Enforcement of Stipulation by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1)(Lovitky, Jeffrey) (Entered: 01/05/2006)
56 RESPONSE to 55 55 Plaintiffs' Motion for Order Setting Briefing Schedule and Enforcement of Stipulation filed by PAUL H. O'NEILL. (Attachments: # 1 Exhibit # 2 Exhibit)(Simpson, W.) Modified on 1/6/2006 (nmw, ). (Entered: 01/05/2006)
57 REPLY to opposition to motion re 55 Setting Briefing Schedule filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 01/06/2006)
MINUTE ORDER approving the parties' stipulated briefing schedule (and expressing surpise that, in view of the minute order of 11/22/05, the parties thought they needed an order to give effect to their agreement). Signed by Judge James Robertson on January 6, 2006. (MT) (Entered: 01/06/2006)
58 Unopposed MOTION to Seal Document by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 01/13/2006)
59 NOTICE of Filing by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Lovitky, Jeffrey) (Note: The document attached to this notice is housed in the vault). Modified on 2/15/2017 (tg). (Entered: 01/13/2006)
MINUTE ORDER granting plaintiffs' motion to seal document 58 . Signed by Judge James Robertson on January 13, 2006. (MT) (Entered: 01/13/2006)

01/23/2006
01/23/2006 02/15/2006 02/16/2006 02/20/2006 02/21/2006 03/09/2006 04/10/2006 04/10/2006 04/11/2006 05/04/2006

60 REPLY to opposition to motion re 35 Summary Judgment filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit Exhibit P−47 − The Euro − Our Money# 2 Exhibit Exhibit P−48, ECB Security Features# 3 Exhibit Exhibit P−49, Swiss National Bank Security Features# 4 Exhibit Exhibit P−50, Counterfeit Deterrence Banknote Feature# 5 Exhibit Exhibit P−51, Transcript of Hearing before the House Committee on Financial Services, April 28, 2004, Part I, pp. 1−68# 6 Exhibit Exhibit P−51, Transcript of Hearing before the House Committee on Financial Services, April 28, 2004, Part II, pp. 69 − end# 7 Exhibit Exhibit P−52, Transcript of Hearing before the House Committee on Financial Services, July 24, 2001# 8 Exhibit Exhibit P−53, Transcript of News Conference, May 20, 1998# 9 Exhibit Exhibit P−54, 2005 Federal Reserve Board New Currency Budget# 10 Exhibit Exhibit P−55, Testimony of BEP Director before House Appropriations Subcommittee, March 5, 1998# 11 Exhibit Exhibit P−56, Federal Reserve Budget Review 1999# 12 Exhibit Exhibit P−57, e−mail from Def. counsel dated October 24, 2005# 13 Exhibit Exhibit P−58, Federal Reserve ECI Program# 14 Exhibit Exhibit P−59, Testimony of BEP Director before House Subcommittee, March 28, 2000, Part I, pp. 1−17# 15 Exhibit Exhibit P−59, Testimony of BEP Director before House Subcommittee, March 28, 2000, Part II, pp. 18−end)(Lovitky, Jeffrey) (Entered: 01/23/2006)
61 REPLY to opposition to motion re 33 and Supplemental Memorandum filed by PAUL H. O'NEILL. (Attachments: # 1 Affidavit Declaration of Kit Regone)(Simpson, W.) (Entered: 01/23/2006)
62 MOTION for Extension of Time to File Surreply by PAUL H. O'NEILL. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Text of Proposed Order)(Simpson, W.) (Entered: 02/15/2006)
63 Memorandum in opposition to re 62 filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit A# 2 Exhibit Exhibit B)(Lovitky, Jeffrey) (Entered: 02/16/2006)
64 REPLY to opposition to motion re 63 Memorandum in Opposition, 62 MOTION for Extension of Time to File Surreply filed by PAUL H. O'NEILL. (Simpson, W.) (Entered: 02/20/2006)
MINUTE ORDER granting 62 motion for extension of time to file surreplies (concurrently, for both parties) . Signed by Judge James Robertson on 2/21/06. (Robertson, James) (Entered: 02/21/2006)
65 NOTICE of Filing Exhibits (FILED IN VAULT) by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Lovitky, Jeffrey) Modified on 3/13/2006 (lc, ). (Entered: 03/09/2006)
66 SURREPLY to re 60 Reply to opposition to Motion,,,,, for Summary Judgment filed by PAUL H. O'NEILL. (Attachments: # 1 Affidavit Supplemental Declaration of Kit Regone)(Simpson, W.) (Entered: 04/10/2006)
67 SURREPLY to re 61 Reply to opposition to Motion for Summary Judgment filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit Exhibit P−60, BEP Lesson Plan)(Lovitky, Jeffrey) (Entered: 04/10/2006)
Set Hearings: Motion Hearing (oral argument/all pending motions) set for 5/4/2006 09:30 AM in Courtroom 23A before Judge James Robertson. (alr, ) (Entered: 04/11/2006)
Minute Entry for proceedings held before Judge James Robertson: Motion Hearing held on 5/4/2006 re 8 MOTION for Summary Judgment with Memorandum of Points and Authorities and Statement of Material Facts, filed by PAUL H. O'NEILL, ROSARIO MARIN, 33 MOTION to Dismiss or for Summary Judgment (Renewed) with Memorandum of Points and Authorities and Statement of Material Facts> filed by PAUL H. O'NEILL, 35 MOTION for Summary Judgment filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS, 36 MOTION for Summary Judgment filed by PAUL H. O'NEILL, 15 MOTION to Dismiss with Memorandum of Points and Authorities in Support Thereof filed by PAUL H. O'NEILL, ROSARIO MARIN, 38 MOTION to Exclude Evidence filed by PAUL H. O'NEILL. All motions taken under advisement. (Court Reporter Rebecca Stonestreet.)

05/09/2006 05/15/2006 10/29/2006 11/28/2006
11/28/2006 12/01/2006 12/04/2006 12/05/2006 12/06/2006 12/19/2006 12/21/2006 07/22/2008 07/23/2008
07/28/2008 07/28/2008 07/28/2008 08/25/2008

(alr, ) (Entered: 05/05/2006)
68 SUPPLEMENTAL MEMORANDUM by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) Modified on 5/10/2006 (lc, ). (Entered: 05/09/2006)
69 RESPONSE re 68 Memorandum filed by PAUL H. O'NEILL. (Simpson, W.) (Entered: 05/15/2006)
70 NOTIFICATION OF SUPPLEMENTAL AUTHORITY by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Lovitky, Jeffrey) (Entered: 10/29/2006)
71 MEMORANDUM ORDER denying defendant's renewed motion to dismiss or for summary judgment 33 36 , granting in part plaintiffs' motion for summary judgment 35 and the Clerk is directed to set a status conference for approximately 30 days after the date of this memorandum order. Signed by Judge James Robertson on November 28, 2006. (MT) (Entered: 11/28/2006)
Set Hearing: Status Conference set for 1/12/2007 02:00 PM in Courtroom 23A before Judge James Robertson. (alr) (Entered: 11/28/2006)
72 AMENDED MEMORANDUM ORDER. Signed by Judge James Robertson on December 1, 2006. (MT) (Entered: 12/01/2006)
Set/Reset Hearings: Status Conference set for 1/5/2007 09:30 AM in Courtroom 23A before Judge James Robertson. (alr) (Entered: 12/04/2006)
73 Unopposed MOTION for Extension of Time to File Attorney Fee Application by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 12/05/2006)
MINUTE ORDER granting plaintiffs' unopposed motion for extension of time to file attorney fee application 73 to no later than 14 days after entry of a final judgment. Signed by Judge James Robertson on December 6, 2006. (MT) (Entered: 12/06/2006)
74 Unopposed MOTION to Stay Proceedings by PAUL H. O'NEILL. (Attachments: # 1 Exhibit Petition for Permission to Take Interlocutory Appeal# 2 Text of Proposed Order)(Simpson, W.) (Entered: 12/19/2006)
MINUTE ORDER staying proceedings pending further order of the Court and cancelling the status conference now set for 1/5/07. Signed by Judge James Robertson on December 20, 2006. (MT) (Entered: 12/21/2006)
76 Civil Statement from Interested Party, GEORGE FRACEK, regarding making money for the blind. (tg, ) "Let this be filed" by Judge James Robertson. (Entered: 07/23/2008)
75 MANDATE Judgment of USCA (certified copy) Ordered that the grant of partial summary judgment on the Secretary's liability under section 504 is affirmed and the case is remanded to the District Court to address the Council's request for injunctive relief, in accordance with the opinion of the Court filed herein this date. USCA No. 07−5063 (ks) (Entered: 07/23/2008)
Set/Reset Hearings: Status Conference set for 9/3/2008 at 11:00 AM in Courtroom 23A before Judge James Robertson. (cp, ) (Entered: 07/28/2008)
77 Joint MOTION to Defer Further Proceedings by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS, PAUL H. O'NEILL (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 07/28/2008)
78 Civil Statement from Interested Party, GEORGE FRACEK regarding system of marking money for the blind. (tg, ) "Let this be filed" by Judge James Robertson. (Entered: 07/29/2008)
79 NOTICE of Withdrawal of Consent by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Lovitky, Jeffrey) (Entered: 08/25/2008)

08/29/2008 08/29/2008 09/03/2008 09/04/2008
09/08/2008 09/08/2008 09/08/2008
09/09/2008 09/15/2008 09/15/2008 09/15/2008 09/19/2008 09/19/2008
09/21/2008 09/26/2008 09/26/2008 09/26/2008

Set/Reset Hearings: Status Conference set for 9/4/2008 at 11:00 AM in Courtroom 23A before Judge James Robertson. (cp, ) (Entered: 08/29/2008)
80 STATUS REPORT "Status Conference Statement" by PAUL H. O'NEILL. (Attachments: # 1 Declaration of Larry R. Felix)(Simpson, W.) (Entered: 08/29/2008)
81 STATUS REPORT by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 09/03/2008)
Minute Entry for proceedings held before Judge James Robertson: Status Conference held on 9/4/2008. Defendants directed to provide the plaintiffs and the Court with the contractor contract under an appropriate protective order. Defendants' brief and a joint agreed or proposed order incorporating all issues addressed during hearing due in 11 days. Parties to file periodic 180−day status reports to the court. (Court Reporter Rebecca Stonestreet.) (cp, ) (Entered: 09/05/2008)
82 MOTION for Protective Order and Expedited Document Production by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 09/08/2008)
83 Memorandum in opposition to re 82 MOTION for Protective Order and Expedited Document Production filed by PAUL H. O'NEILL. (Attachments: # 1 Attachment 1)(Simpson, W.) (Entered: 09/08/2008)
84 REPLY to opposition to motion re 82 MOTION for Protective Order and Expedited Document Production filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 09/08/2008)
85 ORDER granting plaintiff's motion for protective order 82 . The agreed protective order attached to its reply 84 is approved and so ordered. Signed by Judge James Robertson on September 9, 2008. (MT) (Entered: 09/09/2008)
86 NOTICE of Filing under Seal by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Lovitky, Jeffrey) (Entered: 09/15/2008)
87 Unopposed MOTION for Order to Seal Documents by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 09/15/2008)
88 MEMORANDUM re Status Conference, by PAUL H. O'NEILL. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Simpson, W.) (Entered: 09/15/2008)
MINUTE ORDER granting unopposed motion for leave to file under seal 87 . Signed by Judge James Robertson on September 19, 2008. (MT) (Entered: 09/19/2008)
90 MOTION to Require that Defendant Submit a Plan to Mitigate Deficiencies by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (tg, ) (FILED UNDER SEAL − housed in the vault) Modified on 2/15/2017 (tg). (Entered: 09/22/2008)
89 RESPONSE re 88 Memorandum of Points and Authorities filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit)(Lovitky, Jeffrey) (Entered: 09/21/2008)
91 Unopposed MOTION for Leave to File Under Seal by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 09/26/2008)
92 NOTICE of Filing under Seal by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS re 91 Unopposed MOTION for Leave to File Under Seal (Lovitky, Jeffrey) (Entered: 09/26/2008)
93 Unopposed MOTION for Extension of Time to File Response/Reply as to 90 MOTION to Require that Defendant Submit a Plan to Mitigate Deficiencies by PAUL H. O'NEILL (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 09/26/2008)

10/02/2008 10/02/2008
10/03/2008 10/03/2008 10/07/2008 10/08/2008 11/28/2008 12/01/2008
12/09/2008 12/10/2008 12/11/2008 02/27/2009 08/21/2009 03/16/2010 05/28/2010
06/01/2010

MINUTE ORDER granting plaintiffs' unopposed motion for leave to file documents under seal 91 . Signed by Judge James Robertson on October 2, 2008. (MT) (Entered: 10/02/2008)
94 MOTION for Leave to Supplement Plaintiffs' Memorandum of Points and Authorities to Require that the Defendant Submit a Plan to Mitigate Deficiencies. by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (tg, ) (FILED UNDER SEAL − housed in the vault) Modified on 2/15/2017 (tg). (Entered: 10/02/2008)
95 MEMORANDUM. Signed by Judge James Robertson on October 3, 2008. (MT) (Entered: 10/03/2008)
96 ORDER AND JUDGMENT. Signed by Judge James Robertson on October 3, 2008. (MT) (Entered: 10/03/2008)
97 Memorandum in opposition to re 90 MOTION to Require Submission of a Plan to Mitigate "Deficiencies" in ARINC Contract filed by PAUL H. O'NEILL. (Attachments: # 1 Declaration of Larry W. McCain)(Simpson, W.) (Entered: 10/07/2008)
MINUTE ORDER finding as moot defendants' memorandum in opposition 97 . Signed by Judge James Robertson on October 8, 2008. (MT) (Entered: 10/08/2008)
98 Unopposed MOTION for Extension of Time to submit application for attorneys fees and costs by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 11/28/2008)
99 MOTION for Attorney Fees and Costs by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit List of Exhibits, # 4 Exhibit No. 1 Counsel declaration, # 5 Exhibit No. 2 Docket Sheets, # 6 Exhibit No. 3 Billing records, # 7 Exhibit No. 5 Representation Agreement, # 8 Exhibit No. 6 USAO Matrix rates, # 9 Exhibit No. 7 NLJ survey, # 10 Exhibit No. 8 NLJ associate survey, # 11 Exhibit No. 9 representative engagements, # 12 Exhibit No. 10 CV, # 13 Exhibit No. 11 Fla Bar Certification, # 14 Exhibit No. 12 Martindale−Hubbell ratings, # 15 Exhibit No. 13 Heard time and expense reports, # 16 Exhibit No. 14 Defendant's disclosures, # 17 Exhibit No. 15 Expense documentation)(Lovitky, Jeffrey) (Entered: 12/01/2008)
MINUTE ORDER granting plaintiffs' unopposed motion for extension of time 98 . Signed by Judge James Robertson on December 9, 2008. (MT) (Entered: 12/09/2008)
100 STIPULATION re 99 MOTION for Attorney Fees and Costs by PAUL H. O'NEILL. (Simpson, W.) (Entered: 12/10/2008)
101 Stipulation of Compromise and Settlement of Plaintiffs' Claim for Attorney Fees and Costs and Proposed ORDER Thereof granting 99 Motion for Attorney Fees (See Order for details). Signed by Judge James Robertson on 12/11/08. (cp, ) (Entered: 12/11/2008)
102 STATUS REPORT (First) Pursuant to Order and Judgment of October 3, 2008 by PAUL H. O'NEILL. (Simpson, W.) (Entered: 02/27/2009)
103 STATUS REPORT (Second) Pursuant to Order and Judgment of October 3, 2008 by PAUL H. O'NEILL. (Simpson, W.) (Entered: 08/21/2009)
104 STATUS REPORT (Third) by PAUL H. O'NEILL. (Simpson, W.) (Entered: 03/16/2010)
MINUTE ORDER: Proceedings in this case have been stayed. Upon the retirement of the judge to whom the case was assigned, and for the administrative convenience of the Court, it is ORDERED that the case be transferred to the Calendar Committee, for reassignment to another judge if and when any party moves to vacate the stay and alerts the Clerk's Office that such a motion has been filed. Signed by Judge James Robertson on May 28, 2010. (MT) (Entered: 05/28/2010)
105 Case reassigned to Calendar Committee. Judge James Robertson no longer assigned to the case. (gt, ) (Entered: 06/01/2010)

09/16/2010 03/16/2011 09/16/2011 03/16/2012 03/21/2012 05/21/2012
06/04/2012 06/14/2012 06/14/2012 06/27/2012 06/29/2012
06/29/2012 07/16/2012 07/17/2012
07/17/2012
07/17/2012 07/17/2012

106 STATUS REPORT (Fourth) by PAUL H. O'NEILL. (Simpson, W.) (Entered: 09/16/2010)
107 STATUS REPORT (Fifth) Pursuant to Order and Judgment of October 3, 2008 by PAUL H. O'NEILL. (Simpson, W.) (Entered: 03/16/2011)
108 STATUS REPORT (Sixth) by PAUL H. O'NEILL. (Simpson, W.) (Entered: 09/16/2011)
109 STATUS REPORT (Seventh) Pursuant to Order and Judgment of October 3, 2008 by PAUL H. O'NEILL. (Simpson, W.) (Entered: 03/16/2012)
110 Case randomly reassigned to Judge Beryl A. Howell. Calendar Committee no longer assigned to the case. (ds) (Entered: 03/21/2012)
MINUTE ORDER (paperless) In light of the 109 Defendant's Seventh Status Report Pursuant to Order and Judgment of October 3, 2008, the Defendant is directed to file an additional status report, by June 4, 2012, explaining to the Court when the Defendant anticipates that it will be in full compliance with the terms of the 96 Order and Judgment, and whether the obligation to file status reports every six months should be modified in any way. The Plaintiffs may file a response, if any, to the Defendant's forthcoming Status Report by June 18, 2012. Signed by Judge Beryl A. Howell on 05/21/12. (lcbah2) (Entered: 05/21/2012)
111 STATUS REPORT (Supplemental) by PAUL H. O'NEILL. (Simpson, W.) (Entered: 06/04/2012)
112 RESPONSE re 111 Status Report filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(Lovitky, Jeffrey) (Entered: 06/14/2012)
113 MOTION to Modify Order by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(Lovitky, Jeffrey) (Entered: 06/14/2012)
114 Unopposed MOTION for Extension of Time to File Response/Reply as to 113 MOTION to Modify Order by TIMOTHY F. GEITHNER (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 06/27/2012)
MINUTE ORDER (paperless) granting 114 Unopposed Motion for Extension of Time. The defendant shall file a response, by July 16, 2012, to plaintiff's 113 Motion to Amend Order. Signed by Judge Beryl A. Howell on 06/29/2012. (lcbah2) (Entered: 06/29/2012)
Set/Reset Deadlines: Defendant's response to plaintiff's motion to amend order due by 7/16/2012. (tg, ) (Entered: 06/29/2012)
115 Memorandum in opposition to re 113 MOTION to Modify Order and Judgment filed by TIMOTHY F. GEITHNER. (Attachments: # 1 Supplemental Declaration of Larry R. Felix)(Simpson, W.) (Entered: 07/16/2012)
116 Unopposed MOTION for Extension of Time to File Response/Reply as to 113 MOTION to Modify Order by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 07/17/2012)
117 ENTERED IN ERROR.....RESPONSE re 116 Unopposed MOTION for Extension of Time to File Response/Reply as to 113 MOTION to Modify Order filed by TIMOTHY F. GEITHNER. (Simpson, W.) Modified on 7/17/2012 (dr). (Entered: 07/17/2012)
118 NOTICE of Withdrawal of Response by TIMOTHY F. GEITHNER re 117 Response to motion (Simpson, W.) (Entered: 07/17/2012)
MINUTE ORDER (paperless) granting 116 Unopposed Motion for Extension of Time. The plaintiff's reply shall be filed by August 6, 2012. Signed by Judge Beryl A. Howell on 07/17/2012. (lcbah2) (Entered: 07/17/2012)

07/17/2012 07/17/2012 08/06/2012 08/15/2012 09/17/2012 03/18/2013 07/03/2013 09/16/2013 03/18/2014 09/16/2014 09/21/2014 09/26/2014 10/09/2014 10/15/2014
10/17/2014 10/17/2014 10/17/2014 10/20/2014
10/20/2014
10/20/2014

Set/Reset Deadlines: Plaintiff's reply to Motion for extension of time due by 8/6/2012. (tg, ) (Entered: 07/17/2012)
119 NOTICE of Filing by TIMOTHY F. GEITHNER (Attachments: # 1 Second Supplemental Declaration of Larry R. Felix)(Simpson, W.) (Entered: 07/17/2012)
120 REPLY to opposition to motion re 113 MOTION to Modify Order filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit)(Lovitky, Jeffrey) (Entered: 08/06/2012)
121 ORDER denying 113 Plaintiffs' Motion to Amend Order and Response to Defendant's Supplemental Status Report. See Order for further details. Signed by Judge Beryl A. Howell on 08/15/2012. (lcbah2) (Entered: 08/15/2012)
122 STATUS REPORT (Eighth) by TIMOTHY F. GEITHNER. (Simpson, W.) (Entered: 09/17/2012)
123 STATUS REPORT (Ninth) by JACOB J. LEW. (Simpson, W.) (Entered: 03/18/2013)
124 STATUS REPORT (Supplemental) by JACOB J. LEW. (Attachments: # 1 White Paper)(Simpson, W.) (Entered: 07/03/2013)
125 STATUS REPORT (Tenth) by JACOB J. LEW. (Simpson, W.) (Entered: 09/16/2013)
126 STATUS REPORT (Eleventh) by JACOB J. LEW. (Simpson, W.) (Entered: 03/18/2014)
127 STATUS REPORT (Twelfth) by JACOB J. LEW. (Simpson, W.) (Entered: 09/16/2014)
128 MOTION for Order Directing Defendant to File Supplemental Status Report by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 09/21/2014)
129 NOTICE of Filing by JACOB J. LEW (Attachments: # 1 GAO Report)(Simpson, W.) (Entered: 09/26/2014)
130 Memorandum in opposition to re 128 MOTION for Order Directing Defendant to File Supplemental Status Report filed by JACOB J. LEW. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 10/09/2014)
131 REPLY to opposition to motion re 128 MOTION for Order Directing Defendant to File Supplemental Status Report filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit Testimony of Larry Felix)(Lovitky, Jeffrey) (Entered: 10/15/2014)
132 Unopposed MOTION for Leave to File Surreply by JACOB J. LEW (Attachments: # 1 Text of Proposed Order, # 2 Surreply)(Simpson, W.) (Entered: 10/17/2014)
MINUTE ORDER (paperless) GRANTING the defendant's 132 Unopposed Motion for Leave to File Surreply. Signed by Judge Beryl A. Howell on October 17, 2014. (lcbah1) (Entered: 10/17/2014)
133 SURREPLY to re 128 MOTION for Order Directing Defendant to File Supplemental Status Report filed by JACOB J. LEW. (rdj) (Entered: 10/17/2014)
134 Unopposed MOTION for Leave to File Reply to Surreply by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Exhibit Proposed Order, # 2 Exhibit Proposed Reply)(Lovitky, Jeffrey) (Entered: 10/20/2014)
MINUTE ORDER (paperless) GRANTING the plaintiffs' 134 Unopposed Motion for Leave to Reply to Defendant's Surreply in Opposition to Plaintiffs' Motion for Supplemental Status Report. Signed by Judge Beryl A. Howell on October 20, 2014. (lcbah2) (Entered: 10/20/2014)
135 SURREPLY to re 128 MOTION for Order Directing Defendant to File Supplemental Status Report filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 10/20/2014)

11/03/2014
02/05/2015 03/16/2015 09/16/2015 02/22/2016 03/16/2016 05/12/2016 06/06/2016
06/15/2016 06/15/2016 06/16/2016 06/16/2016 08/04/2016 08/08/2016 08/12/2016 08/12/2016

MINUTE ORDER (paperless) DENYING the plaintiff's 128 Motion for an Order Directing the Defendant to File a Supplemental Status Report. The defendant's 127 Twelfth Status Report states that although "[r]ecent events have affected some of the interim benchmark dates in the development of a tactile feature," the defendant does not believe that those events will impact the "target date for the ultimate production of redesigned currency with a tactile feature." The plaintiff's motion requested additional information regarding the reliability of this statement in light of the "recent events." The defendant provided such information in the GAO Report attached to the 129 Notice of Filing. Nevertheless, the Court reminds the defendant of its obligations to "be as precise as possible in its semi−annual reports about the timeline for fulfilling its obligations" and that major delays in implementation be reported. See 121 Order (August 15, 2012). Signed by Judge Beryl A. Howell on November 3, 2014. (lcbah2) (Entered: 11/03/2014)
136 STATUS REPORT (Supplemental) by JACOB J. LEW. (Simpson, W.) (Entered: 02/05/2015)
137 STATUS REPORT (Thirteenth) by JACOB J. LEW. (Simpson, W.) (Entered: 03/16/2015)
138 STATUS REPORT (Fourteenth) by JACOB J. LEW. (Simpson, W.) (Entered: 09/16/2015)
139 Supplemental STATUS REPORT by JACOB J. LEW. (Simpson, W.) (Entered: 02/22/2016)
140 STATUS REPORT (Fifteenth) by JACOB J. LEW. (Simpson, W.) (Entered: 03/16/2016)
141 Supplemental STATUS REPORT by JACOB J. LEW. (Simpson, W.) (Entered: 05/12/2016)
142 MOTION to Modify Order Dated October 3, 2008 by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7)(Lovitky, Jeffrey) (Entered: 06/06/2016)
143 MOTION for Extension of Time to File Response/Reply as to 142 MOTION to Modify Order Dated October 3, 2008 by JACOB J. LEW (Simpson, W.) (Entered: 06/15/2016)
144 RESPONSE re 143 MOTION for Extension of Time to File Response/Reply as to 142 MOTION to Modify Order Dated October 3, 2008 filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 06/15/2016)
MINUTE ORDER (paperless) GRANTING the defendant's 143 Motion for Extension of Time. The defendant shall file, by August 12, 2016, any opposition to the plaintiffs' 142 Motion to Modify the Court's Injunctive Order Dated October 3, 2008. Signed by Chief Judge Beryl A. Howell on June 16, 2016. (lcbah2) (Entered: 06/16/2016)
Set/Reset Deadlines: Defendant's Opposition to Plaintiffs' 142 Motion to Modify the Court's Injunctive Order Dated October 3, 2008 due by 8/12/2016. (tg) (Entered: 06/16/2016)
145 WITHDRAWN by filer on 8/12/2016.....AMICUS BRIEF by NATIONAL COUNCIL ON DISABILITY. (Correia, Edward) Modified event title and party on 8/5/2016 (znmw). Modified on 8/15/2016 (tg). (Entered: 08/04/2016)
146 ERRATA re 145 AMICUS BRIEF by NATIONAL COUNCIL ON DISABILITY. (Attachments: # 1 Memorandum in Support)(Correia, Edward) Modified on 8/8/2016 to correct event (zrdj). (Entered: 08/08/2016)
147 MOTION to Withdraw Amicus Brief by NATIONAL COUNCIL ON DISABILITY (Correia, Edward) (Entered: 08/12/2016)
148 Memorandum in opposition to re 142 MOTION to Modify Order Dated October 3, 2008 filed by JACOB J. LEW. (Attachments: # 1 Declaration of Michael Wash, # 2

08/15/2016 08/15/2016
08/16/2016 09/01/2016 09/16/2016 01/06/2017 01/23/2017 01/24/2017 01/31/2017 03/16/2017 09/18/2017 02/21/2018 02/23/2018
02/26/2018 03/07/2018

Declaration of Teresa Fynes, # 3 Excerpts, Deposition of Patrick M. Sheehan, # 4 Text of Proposed Order)(Simpson, W.) (Entered: 08/12/2016)
149 Unopposed MOTION for Extension of Time to File Response/Reply as to 142 MOTION to Modify Order Dated October 3, 2008 by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 08/15/2016)
MINUTE ORDER (paperless) GRANTING the 149 Plaintiffs' Unopposed Motion for Enlargement of Time to File its Reply in Support of its Motion to Modify the Court's Injunctive Order Dated October 3, 2008. Accordingly, the plaintiffs' shall, by September 6, 2016, file any reply to the defendant's response to the plaintiffs' 142 Motion to Modify the Court's Injunctive Order Dated October 3, 2008. Signed by Chief Judge Beryl A. Howell on August 15, 2016. (lcbah4) (Entered: 08/15/2016)
Set/Reset Deadlines: Plaintiff's reply to defendant's response to 142 Motion to Modify the Court's Injunctive Order Dated October 3, 2008 due by 9/6/2016. (tg) (Entered: 08/16/2016)
150 REPLY to opposition to motion re 142 MOTION to Modify Order Dated October 3, 2008 filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Lovitky, Jeffrey) (Entered: 09/01/2016)
151 STATUS REPORT (Sixteenth) by JACOB J. LEW. (Simpson, W.) (Entered: 09/16/2016)
152 ORDER DENYING plaintiffs' 142 Motion to Modify the Court's Injunctive Order Dated October 3, 2008. See Order for further details. Signed by Chief Judge Beryl A. Howell on January 6, 2017. (lcbah4) (Entered: 01/06/2017)
153 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 152 Order on Motion to Modify by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. Filing fee $ 505, receipt number 0090−4814323. Fee Status: Fee Paid. Parties have been notified. (Lovitky, Jeffrey) (Entered: 01/23/2017)
154 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 153 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 01/24/2017)
USCA Case Number 17−5013 for 153 Notice of Appeal to DC Circuit Court, filed by PATRICK SHEEHAN, OTIS STEPHENS, AMERICAN COUNCIL OF THE BLIND. (zrdj) (Entered: 01/31/2017)
155 STATUS REPORT (Seventeenth) by Steven T. Mnuchin. (Simpson, W.) (Entered: 03/16/2017)
156 STATUS REPORT (Eighteenth) by STEVEN TERNER MNUCHIN. (Attachments: # 1 Letter to U.S. Senators)(Simpson, W.) (Entered: 09/18/2017)
157 MANDATE of USCA as to 153 Notice of Appeal to DC Circuit Court, filed by PATRICK SHEEHAN, OTIS STEPHENS, AMERICAN COUNCIL OF THE BLIND ; USCA Case Number 17−5013. (Attachments: # 1 USCA Judgment)(td) (Entered: 02/28/2018)
MINUTE ORDER (paperless) DIRECTING, upon consideration of the Judgment on Appeal, the parties to file, by March 7, 2018, a joint status report including a proposed schedule for further proceedings, and further DIRECTING the parties to appear for a status conference on March 14, 2018, at 9:30 a.m., in Courtroom 22A before Chief Judge Beryl A. Howell. Signed by Chief Judge Beryl A. Howell on February 23, 2018. (lcbah4) (Entered: 02/23/2018)
Set/Reset Deadlines: Joint Status Report due by 3/7/2018; Status Conference scheduled for 3/14/2018 at 9:30 AM in Courtroom 22A before Chief Judge Beryl A. Howell. (tg) (Entered: 02/26/2018)
158 Joint STATUS REPORT with Stipulation and Proposed Order Regarding Post−Remand Proceedings by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 03/07/2018)

03/07/2018
03/16/2018 05/04/2018
06/19/2018 06/28/2018 06/28/2018
06/29/2018 08/06/2018 08/06/2018
08/07/2018 08/27/2018

MINUTE ORDER (paperless) VACATING, upon consideration of the parties' 158 Joint Status Report with Stipulation and Proposed Order Regarding Post−Remand Proceedings, the status conference currently scheduled for March 14, 2018, and ISSUING the following SCHEDULING ORDER to control further proceedings: The plaintiffs shall, by May 8, 2018, file a renewed motion to modify the 96 Order and Judgment dated October 3, 2008. The defendant shall, by July 10, 2018, file any opposition to the plaintiffs' motion to modify. The plaintiffs shall, by July 24, 2018, file any motion to conduct discovery. If no motion to conduct discovery is filed, then the plaintiffs shall, by August 9, 2018, file any reply to their motion to modify. Signed by Chief Judge Beryl A. Howell on March 7, 2018. (lcbah4) (Entered: 03/07/2018)
159 STATUS REPORT (Nineteenth) by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 03/16/2018)
160 MOTION to Modify Injunctive Order by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Exhibit Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18, # 20 Exhibit Exhibit 19)(Lovitky, Jeffrey) (Entered: 05/04/2018)
161 NOTICE of Change of Address by W. Scott Simpson (Simpson, W.) (Entered: 06/19/2018)
162 STIPULATION re Order,,, by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 06/28/2018)
MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 162 Stipulation and Proposed Order, the following SCHEDULING ORDER to control further proceedings: The defendant shall, by August 13, 2018, file any response to the plaintiffs' 160 Renewed Motion to Modify the Court's Injunctive Order. The plaintiffs shall, by September 13, 2018, file any motion to conduct discovery. If no motion to conduct discovery is filed, then the plaintiffs shall, by October 12, 2018, file any reply to their motion to modify. Signed by Chief Judge Beryl A. Howell on June 28, 2018. (lcbah4) (Entered: 06/28/2018)
Set/Reset Deadlines: Defendant's Response to 160 Renewed Motion to Modify the Court's Injunctive Order due by 8/13/2018; Plaintiffs' Motion to Conduct Discovery, if any, due by 9/13/2018; if no motion to conduct discovery is filed, then the plaintiffs' Reply in support to their Motion to Modify is due by 10/12/2018. (tg) (Entered: 06/29/2018)
163 STIPULATION re 160 MOTION to Modify Injunctive Order by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 08/06/2018)
MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 163 Stipulation and Proposed Order, the following SCHEDULING ORDER to control further proceedings: The defendant shall, by August 27, 2018, file any response to the plaintiffs' 160 Renewed Motion to Modify the Court's Injunctive Order. The plaintiffs shall, by September 27, 2018, file any motion to conduct discovery. If no motion to conduct discovery is filed, then the plaintiffs shall, by October 26, 2018, file any reply to their motion to modify. Signed by Chief Judge Beryl A. Howell on August 6, 2018. (lcbah4) (Entered: 08/06/2018)
Set/Reset Deadlines: Defendant's response to plaintiffs' 160 Renewed Motion to Modify the Court's Injunctive Order due by 8/27/2018. Plaintiffs' motion to conduct discovery, if any, due by 9/27/2018. If no motion to conduct discovery is filed, Plaintiffs' reply to their motion to modify is due by 10/26/2018. (tg) (Entered: 08/07/2018)
164 Memorandum in opposition to re 160 MOTION to Modify Injunctive Order filed by STEVEN TERNER MNUCHIN. (Attachments: # 1 Declaration of Michael Wash, # 2 Second Declaration of Teresa Fynes, # 3 Declaration of Leonard R. Olijar, # 4 Declaration of Michael Johnston ( See docket entry 165 ), # 5 Declaration of Michael J. Lambert, # 6 Declaration of David Tente, # 7 Excerpts from Deposition of Patrick Sheehan, # 8 Excerpts from Deposition of Melanie Brunson, # 9 Text of Proposed

08/27/2018 09/17/2018 10/12/2018 10/12/2018 10/12/2018 11/24/2018 12/20/2018 12/20/2018 12/20/2018 01/04/2019
01/04/2019

Order)(Simpson, W.) (Entered: 08/27/2018)
165 NOTICE of Filing by STEVEN TERNER MNUCHIN re 164 Memorandum in Opposition,, (Attachments: # 1 Declaration of Michael Johnston)(Simpson, W.) (Entered: 08/27/2018)
166 STATUS REPORT (Twentieth) by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 09/17/2018)
167 Unopposed MOTION for Extension of Time to File Response/Reply as to 160 MOTION to Modify Injunctive Order by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 10/12/2018)
MINUTE ORDER (paperless) GRANTING the plaintiffs' 167 Unopposed Motion for Enlargement of Time to File their Reply in Support of their Motion to Modify the Court's Injunctive Order Dated October 3, 2008. Accordingly, the plaintiffs shall, by November 26, 2018, file the reply. Signed by Chief Judge Beryl A. Howell on October 12, 2018. (lcbah4) (Entered: 10/12/2018)
Set/Reset Deadlines: Plaintiffs' reply in Support of their Motion to Modify the Court's Injunctive Order due by 11/26/2018. (hmc) (Entered: 10/12/2018)
168 REPLY to opposition to motion re 160 MOTION to Modify Injunctive Order filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Lovitky, Jeffrey) (Entered: 11/24/2018)
169 Supplemental STATUS REPORT by STEVEN TERNER MNUCHIN. (Attachments: # 1 MITRE Report)(Simpson, W.) (Entered: 12/20/2018)
MINUTE ORDER (paperless) DIRECTING the parties to appear before the Court for a Motions Hearing scheduled for January 25, 2019, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. Signed by Chief Judge Beryl A. Howell on December 20, 2018. (lcbah4) (Entered: 12/20/2018)
Set/Reset Hearings: Motions Hearing scheduled for 1/25/2019, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. (tg) (Entered: 12/20/2018)
MINUTE ORDER (paperless) DIRECTING, in light of the D.C. Circuit's holding that this Court abused its discretion in denying the plaintiffs' second motion for modification of the injunction "without adequate evidentiary support for the cited costs to the Treasury Department and the private sector," Am. Council of the Blind v. Mnuchin, 878 F.3d 360, 368 (D.C. Cir. 2017), the D.C. Circuit's direction that this Court, in considering a motion for modification, requires a "more concrete estimate of the financial burden of incorporating a raised tactile feature ["RTF"]," including projections as to "whether continuing to enforce the injunction−−with the [RTF and other redesign] timelines coupled rather than decoupled−−is no longer equitable" under Fed. R. Civ. P. 60(b)(5), id. at 369 (internal quotation marks omitted), and in light of the defendant's 164 Opposition to Plaintiffs' Renewed Motion to Modify Judgment, which includes eight attachments, two of which are excerpts of depositions previously submitted to this Court, and one of which, the Wash Declaration, has been resubmitted with no updates despite the D.C. Circuit's holding that that version of the Wash Declaration was "inadequate to fully and independently serve as the basis for [this Court's] decision," id. at 368, and that the costs cited in it "tell us nothing about the difference in costs between the two timelines.... [which] financial difference is crucial to weighing the equities of the plaintiffs' requested modification," id. at 369, the plaintiffs to file, by January 11, 2019, a list of defense witnesses to testify at the hearing scheduled for January 25, 2019 and proposed questions for those witnesses. The defendant is DIRECTED to respond, by January 15, 2019, confirming preparations to make the plaintiffs' requested witnesses available to testify. Signed by Chief Judge Beryl A. Howell on January 4, 2019. (lcbah4) (Entered: 01/04/2019)
Set/Reset Deadlines: Plaintiffs' list of witnesses to testify at the hearing of January 25, 2019, due by 1/11/2019; defendant's response due by 1/15/2019. (tg) (Entered: 01/04/2019)

01/04/2019 01/06/2019 01/06/2019 01/06/2019 01/08/2019 01/09/2019
01/10/2019 01/18/2019 01/28/2019 01/28/2019 01/28/2019 01/28/2019
01/28/2019 02/08/2019
02/08/2019

170 MOTION to Stay Proceedings in Light of Lapse of Appropriations by STEVEN TERNER MNUCHIN (Attachments: # 1 Declaration of W. Scott Simpson, # 2 Text of Proposed Order)(Simpson, W.) (Entered: 01/04/2019)
171 Memorandum in opposition to re 170 MOTION to Stay Proceedings in Light of Lapse of Appropriations filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 01/06/2019)
172 RESPONSE TO ORDER OF THE COURT re Order,,,,,,,, filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 01/06/2019)
173 RESPONSE re 169 Status Report filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Lovitky, Jeffrey) (Entered: 01/06/2019)
174 REPLY to opposition to motion re 170 MOTION to Stay Proceedings in Light of Lapse of Appropriations filed by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 01/08/2019)
175 ORDER DENYING WITHOUT PREJUDICE defendant's 170 Motion to Stay Proceedings in Light of Lapse of Appropriations; VACATING the Motions Hearing scheduled for January 25, 2019 and any deadlines related to that Motions Hearing; and DIRECTING the parties to submit detailed answers to the questions in the Order by the deadlines provided. See Order for further details. Signed by Chief Judge Beryl A. Howell on January 9, 2019. (lcbah4) (Entered: 01/09/2019)
Set/Reset Deadlines: Plaintiffs' responses to questions 1 through 12 due by 1/18/2019. (tg) (Entered: 01/10/2019)
176 RESPONSE TO ORDER OF THE COURT re 175 Order on Motion to Stay, filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Lovitky, Jeffrey) (Entered: 01/18/2019)
177 MOTION to Amend/Correct 176 Response to Order of the Court by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 01/28/2019)
178 Unopposed MOTION for Extension of Time to File Responses to Court's Questions by STEVEN TERNER MNUCHIN (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 01/28/2019)
MINUTE ORDER (paperless) GRANTING the plaintiffs' unopposed 177 Motion to Amend Their Answer to Question No. 9. Accordingly, the plaintiffs' answer to question number 9 in their 176 Response to the Court's Questions is amended. Signed by Chief Judge Beryl A. Howell on January 28, 2019. (lcbah4) (Entered: 01/28/2019)
MINUTE ORDER (paperless) GRANTING the defendant's 178 Unopposed Motion for Extension of Time to file responses to questions posed in the Court's 175 Order of January 9, 2019. Accordingly, the defendant shall, by February 8, 2019, file its responses. Signed by Chief Judge Beryl A. Howell on January 28, 2019. (lcbah4) (Entered: 01/28/2019)
Set/Reset Deadlines: Defendant's Response to Order of the Court due by 2/8/2019. (tg) (Entered: 01/28/2019)
179 RESPONSE TO ORDER OF THE COURT re 175 Order on Motion to Stay, (Order of January 9, 2019) filed by STEVEN TERNER MNUCHIN. (Attachments: # 1 Declaration of Leonard R. Olijar, # 2 Third Declaration of Teresa Fynes, # 3 Declaration of Michael Johnston, # 4 Declaration of Michael J. Lambert, # 5 Email Exchange)(Simpson, W.) (Entered: 02/08/2019)
MINUTE ORDER (paperless) ORDERING the plaintiffs to file, by February 13, 2019, any response to the defendant's 179 Response to the Court's Order of January 9, 2019. Signed by Chief Judge Beryl A. Howell on February 8, 2019. (lcbah4) (Entered: 02/08/2019)

02/08/2019 02/13/2019 02/25/2019
02/26/2019 03/01/2019 03/01/2019 03/14/2019 03/14/2019

Set/Reset Deadlines: Plaintiffs' response to the defendant's 179 Response to the Court's Order of January 9, 2019, due by 2/13/2019. (tg) (Entered: 02/08/2019)
180 RESPONSE re Order filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6)(Lovitky, Jeffrey) (Entered: 02/13/2019)
MINUTE ORDER (paperless) ORDERING, upon consideration of the plaintiffs' 176 Response to the Court's Questions ("Pls.' Resp."), the defendant's 179 Response to the Court's Questions ("Def.'s Resp."), and the plaintiffs' 180 Response to the Defendant's Response to the Court's Questions ("Pls.' Resp. to Def.'s Resp."), and in light of the defendant's prior invitation to meet with the plaintiffs in September 2018 for a "frank discussion about the progress the agency had made and the limitations of any [raised tactile feature ("RTF")]," see 179 Def.'s Resp. at 2, which invitation the plaintiffs then declined, but now indicate they "would likely have" accepted, "had the [defendant] provided some indication that new proposals would be forthcoming... that could resolve this matter," see 180 Pls.' Resp. to Def.'s Resp. at 17, the parties to submit, by 4:00 PM on March 7, 2019, a joint status report indicating: (1) dates, from March 7, 2019 through March 15, 2019, when the parties agree to meet; and (2) an agenda for such meeting(s), including proposals by both sides that could resolve the plaintiffs' pending 160 Renewed Motion to Modify the Injunctive Order, in light of the defendant's representations supplementing the record as to why the provision of more concrete cost estimates, as required by the D.C. Circuit's opinion in American Council of the Blind v. Mnuchin, 878 F.3d 360, 369−70 (D.C. Cir. 2017), are impossible to provide and why it would not be feasible to meet the deadlines proposed by the plaintiffs in their Renewed Motion to Modify the Injunctive Order, see Def.'s Resp. at 3 ("[I]t is impossible to provide concrete cost estimates" since the defendant "has not yet determined the technological method... for adding a tactile feature."); id. at 9 ("[U]ndetermined security features will need to work with an RTF application method that has not yet been approved. The defendant cannot, therefore, provide concrete cost estimates."); id. at 27 ("[I]t is impossible to provide concrete cost estimates."); id. at 30 ("It would not be feasible or possible to produce a $10 note with an RTF by December 31, 2020, or to produce all denominations with an RTF by December 31, 2026."). It is FURTHER ORDERED that the parties shall submit, by 4:00 PM on March 15, 2019, after the conclusion of any meetings, a joint status report advising the Court whether the parties request (1) referral for mediation; (2) an evidentiary hearing; or (3) a stay of the pending motion in order to give them more time to negotiate potential solutions. Signed by Chief Judge Beryl A. Howell on February 25, 2019. (lcbah4) (Entered: 02/25/2019)
Set/Reset Deadlines: Joint Status Report due by 4:00 PM on 3/7/2019; Joint Status Report due by 4:00 PM on 3/15/2019. (tg) (Entered: 02/26/2019)
181 Joint STATUS REPORT by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Lovitky, Jeffrey) (Entered: 03/01/2019)
MINUTE ORDER (paperless) VACATING, upon consideration of the parties' 181 Joint Status Report, the provision of the Court's Minute Order of February 25, 2019 directing the parties to include, in a Joint Status Report filed prior to meeting, proposals by both sides that could resolve the plaintiffs' pending 160 Renewed Motion to Modify the Injunctive Order. The Court's Minute Order of February 25, 2019 otherwise remains in effect. Signed by Chief Judge Beryl A. Howell on March 1, 2019. (lcbah4) (Entered: 03/01/2019)
182 Joint STATUS REPORT by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Lovitky, Jeffrey) (Entered: 03/14/2019)
MINUTE ORDER (paperless) STAYING, upon consideration of the parties' 182 Joint Status Report and the parties' request for more time to negotiate potential solutions, proceedings on the plaintiffs' pending 160 Renewed Motion to Modify the Injunctive Order until April 15, 2019. The parties are DIRECTED to file, by April 10, 2019, a Joint Status Report updating the Court on the status of settlement discussions and advising whether the parties request: (1) referral for mediation; (2) an evidentiary hearing; or (3) an extension of the stay in order to give them more time to continue negotiations. Signed by Chief Judge Beryl A. Howell on March 14, 2019. (lcbah4) (Entered: 03/14/2019)

03/14/2019 03/15/2019 03/15/2019 03/15/2019
03/18/2019 03/25/2019 04/09/2019 04/09/2019
04/09/2019 04/18/2019 06/10/2019 06/14/2019

Set/Reset Deadlines: Joint Status Report due by 4/10/2019. (tg) (Entered: 03/14/2019)
Case Stayed. (tg) (Entered: 03/15/2019)
183 STIPULATION and Request for Order by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 03/15/2019)
MINUTE ORDER (paperless) ORDERING, upon consideration of the parties' 183 Stipulation and Request for Order, that the deadline for the defendant's semi−annual status report is extended until March 25, 2019. Signed by Chief Judge Beryl A. Howell on March 15, 2019. (lcbah4) (Entered: 03/15/2019)
Set/Reset Deadlines: Defendant's semi−annual status report due by 3/25/2019. (tg) (Entered: 03/18/2019)
184 STATUS REPORT (Twenty−First) by STEVEN TERNER MNUCHIN. (Simpson, W.) (Entered: 03/25/2019)
185 Unopposed MOTION to Stay re Order,, Case Stayed to Continue Stay of Proceedings by STEVEN TERNER MNUCHIN (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 04/09/2019)
MINUTE ORDER (paperless) CONTINUING THE STAY, upon consideration of the defendant's unopposed 185 Motion to Continue Stay, of proceedings on the plaintiffs' pending 160 Renewed Motion to Modify the Injunctive Order, until June 10, 2019. The parties are DIRECTED to file, by June 10, 2019, a Joint Status Report updating the Court on the status of settlement discussions and advising whether the parties request: (1) referral for mediation; (2) an evidentiary hearing; or (3) an extension of the stay in order to give them more time to continue negotiations. Signed by Chief Judge Beryl A. Howell on April 9, 2019. (lcbah4) (Entered: 04/09/2019)
Set/Reset Deadlines: Joint Status Report due by 6/10/2019. (tg) (Entered: 04/09/2019)
186 NOTICE of Appearance by Justin Michael Sandberg on behalf of STEVEN TERNER MNUCHIN (Sandberg, Justin) (Entered: 04/18/2019)
187 Joint STATUS REPORT by STEVEN TERNER MNUCHIN. (Sandberg, Justin) (Entered: 06/10/2019)
MINUTE ORDER (paperless) ORDERING the plaintiffs to SHOW CAUSE, by June 21, 2019, why their pending 160 Renewed Motion to Modify the Injunctive Order should not be denied without prejudice, if not otherwise withdrawn, in light of the parties' most recent 187 Joint Status Report ("JSR"), in which the plaintiffs state that they "disagree" with the defendant that their "pending motion to impose a deadline for the manufacture of accessible currency should be decided on the basis of the existing record," JSR at 3, observe that "an evidentiary hearing" or supplemental briefing, including further responses from the defendant, "may be required" in order to determine the feasibility of redesigning any denominations by December 31, 2026, especially when, as the defendant concedes, the defendant's claim of infeasibility has, to date, only been raised in supplemental responses to the Court's questions, which responses were filed after briefing was complete on the pending motion, id. at 2−4, and where a modification of the injunctive order tied to the feasibility of redesigning certain denominations by December 31, 2026 may "potentially obviate any necessity for further litigation on the pending motion," id. at 3−4; and FURTHER DIRECTING, the parties to file, by June 21, 2019, a Joint Status Report proposing a schedule for briefing on the plaintiffs' proposed−−but not yet filed−−motion for discovery, in light of the plaintiffs' request for "an opportunity to obtain discovery as to the factual basis for the Secretary's claim of infeasibility[] prior to the filing of further briefs on [this] issue," id. at 4, and the defendant's representations about being better equipped to answer additional questions "after [it] selects an RTF application method, likely in December 2019," id. at 3. This Joint Status Report must explain how the focus of any discovery will address the D.C. Circuit's direction to consider, on remand, "more concrete estimates of the costs that matter," with those costs defined as the costs of decoupling the defendant's redesign of currency to implement new security features from its redesign of currency to provide meaningful access to visually impaired individuals. See Am. Council of the Blind v. Mnuchin, 878 F.3d 360, 367, 371 (D.C. Cir. 2017). Signed by Chief Judge Beryl A. Howell on June 14, 2019. (lcbah4) (Entered: 06/14/2019)

06/14/2019 06/21/2019 06/21/2019 07/09/2019 07/09/2019
08/22/2019 08/22/2019 09/16/2019 10/21/2019 10/22/2019 10/25/2019

Set/Reset Deadlines: Plaintiffs' Response to Show Cause due by 6/21/2019; Joint Status Report due by 6/21/2019. (tg) (Entered: 06/14/2019)
188 RESPONSE TO ORDER TO SHOW CAUSE by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN re Order,,,,,,,,,, . (Lovitky, Jeffrey) (Entered: 06/21/2019)
189 Joint STATUS REPORT by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. (Lovitky, Jeffrey) (Entered: 06/21/2019)
190 MOTION for Briefing Schedule by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN (Attachments: # 1 Text of Proposed Order)(Lovitky, Jeffrey) (Entered: 07/09/2019)
MINUTE ORDER (paperless) DENYING WITHOUT PREJUDICE the parties' 190 Motion for a Briefing Schedule, because no discovery motion or briefing schedule is needed in light of the parties' 189 Joint Status Report and the plaintiffs' 188 Response to Show Cause Order, in which the plaintiffs clarified that they do not wish to withdraw or stay consideration of their pending 160 Renewed Motion to Modify the Injunctive Order in order to conduct discovery and the parties agreed that the Court should decide the plaintiffs' motion based on the current record, which has been expanded by the parties' responses to the Court's questions, see 176 Plaintiffs' Response to the Court's Questions; 179 Defendant's Response to the Court's Questions; 180 Plaintiffs' Response to the Defendant's Response to the Court's questions; it is FURTHER ORDERED that the STAY on this matter is LIFTED, in accordance with the parties' 187 Joint Status Report, in which both parties agreed that further settlement negotiations would not be productive at this stage. Signed by Chief Judge Beryl A. Howell on July 9, 2019. (lcbah4) (Entered: 07/09/2019)
191 ORDER DENYING the plaintiffs' 160 Renewed Motion to Modify the Court's Injunction Order Dated October 3, 2008 and DENYING AS MOOT the plaintiffs' 142 Second Motion to Modify the Court's Injunction Order Dated October 3, 2008. See Order for further details. Signed by Chief Judge Beryl A. Howell on August 22, 2019. (lcbah4) (Entered: 08/22/2019)
192 MEMORANDUM OPINION regarding the plaintiffs' 160 Renewed Motion to Modify the Court's Injunction Order Dated October 3, 2008 and the plaintiffs' 142 Second Motion to Modify the Court's Injunction Order Dated October 3, 2008. Signed by Chief Judge Beryl A. Howell on August 22, 2019. (lcbah4) (Entered: 08/22/2019)
193 STATUS REPORT by STEVEN T. MNUCHIN. (Sandberg, Justin) (Entered: 09/16/2019)
194 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 192 Memorandum & Opinion, 191 Order on Motion to Modify, by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN. Filing fee $ 505, receipt number ADCDC−6463810. Fee Status: Fee Paid. Parties have been notified. (Lovitky, Jeffrey) (Entered: 10/21/2019)
195 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 194 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 10/22/2019)
USCA Case Number 19−5284 for 194 Notice of Appeal to DC Circuit Court, filed by PATRICK SHEEHAN, AMERICAN COUNCIL OF THE BLIND. (zrdj) (Entered: 10/29/2019)

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2007

Decided May 20, 2008

No. 07-5063

THE AMERICAN COUNCIL OF THE BLIND, ET AL., APPELLEES

v.

HENRY M. PAULSON, JR., SECRETARY OF THE TREASURY, APPELLANT

Appeal from the United States District Court for the District of Columbia (No. 02ms00864)

Jonathan F. Cohn, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Marleigh D. Dover, and Charles W. Scarborough, Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Scott C. LaBarre argued the cause for amicus curiae National Federation of the Blind in support of appellant. With him on the brief was Joseph B. Espo.
Jonathan T. Howe and C. Michael Deese were on the brief for amicus curiae National Automatic Merchandising

2
Association.
Jeffrey A. Lovitky argued the cause and filed the brief for appellee.
Harold Hongju Koh and David N. Rosen were on the brief for amici curiae Perkins School for the Blind, et al. in support of appellee.
Before: RANDOLPH, ROGERS and GRIFFITH, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: The Secretary of the Treasury appeals the declaratory judgment that the Treasury Department’s failure to design and issue paper currency that is readily distinguishable to the visually impaired violates section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The Secretary contends that various coping mechanisms that enable the visually impaired to use U.S. currency, as well as the availability of portable currency readers to identify denominations and credit cards as an alternative to cash, demonstrate that there is no denial of meaningful access to currency. Consequently, the Secretary maintains that the district court erred in finding to the contrary and should not have reached the question of whether identified accommodations would impose an undue burden. Alternatively, assuming a denial of meaningful access, the Secretary contends that the district court erred in validating identified accommodations in view of their added costs and the burden on the public.
Congress expressly intended the Rehabilitation Act to ensure that members of the disabled community could live

3
independently and fully participate in society. 29 U.S.C. § 701(b)(1). The Secretary acknowledges that a paper currency system designed for the sighted means that millions of visually impaired individuals are dependent on the kindness of others, unless they purchase expensive electronic equipment, in using U.S. currency. Such dependence, which is amply supported by the record, constitutes a denial of meaningful access to U.S. currency that is not remedied by use of existing coping mechanisms. The record further demonstrates that the Secretary has not met his burden to show, as an affirmative defense, that each identified accommodation that is facially reasonable, effective, and feasible would impose an undue burden. A large majority of other currency systems have accommodated the visually impaired, and the Secretary does not explain why U.S. currency should be any different. The financial costs identified by the Secretary are not out of line with the costs associated with other currency changes that the Secretary has made and could be reduced were accommodations made as part of other planned changes. Further, this lawsuit seeks neither alteration of the system of using paper currency as such nor a specific accommodation dictated by court order, leaving the Secretary to choose the means of bringing U.S. currency into compliance with section 504. Accordingly, we affirm the grant of partial summary judgment and remand the case for the district court to address the request for injunctive relief.
I.
Section 504 of the Rehabilitation Act provides that:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal

4
financial assistance or under any program or activity conducted by any Executive agency . . . .
29 U.S.C. § 794. This provision was originally proposed as an amendment to Title VI of the Civil Rights Act of 19641 and was designed to extend civil rights to disabled individuals and provide them a full opportunity to participate in American society. One of the primary purposes of the Rehabilitation Act is “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through – . . . (F) the guarantee of equal opportunity.” 29 U.S.C. § 701(b)(1). Congress expressly found that:
[D]isability is a natural part of the human experience and in no way diminishes the right of individuals to –
(A) live independently;
(B) enjoy self-determination;
(C) make choices;
(D) contribute to society;
(E) pursue meaningful careers; and
(F) enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society.
1 See S. 3044, 92d Cong., 118 Cong. Rec. 525-26 (1972); H.R. 14,033, 92d Cong., 118 Cong. Rec. 9712 (1972); H.R. 12,154, 92d Cong., 117 Cong. Rec. 45,945 (1971); see also Alexander v. Choate, 469 U.S. 287, 295 n.13 (1985).

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29 U.S.C. § 701(a)(3).
The Supreme Court has instructed that section 504 does not require proof of discriminatory intent because “[d]iscrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect.” Choate, 469 U.S. at 295; see also Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412-13 (1979). Further, the Court has acknowledged that where a public entity refuses to accommodate otherwise qualified disabled individuals, its refusal may be “unreasonable and discriminatory.” Choate, 469 U.S. at 300 (quoting Davis, 442 U.S. at 413).2 However, “[a]ny interpretation of § 504
2 Other circuits have construed section 504 broadly to accomplish its stated purposes, guided by the principle that the Rehabilitation Act is designed to “promote, among other things, the inclusion and integration of persons with disabilities into mainstream society,” J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000), and as a remedial statute should be “‘construed broadly to effectuate its purposes,’” Henrietta D. v. Bloomberg, 331 F.3d 261, 279 (2d Cir. 2003) (quoting Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)). Further, the courts have tended to construe section 504 in pari materia with Title II of the ADA, 42 U.S.C. § 12,132, reasoning that these statutory provisions are “‘similar in substance’ . . . [and consequently] ‘cases interpreting either are applicable and interchangeable.’” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (quoting Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998); see Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 908 (6th Cir. 2004); Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 845 n.6 (7th Cir. 1999). Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12,132.

6
must . . . be responsive to two powerful but countervailing considerations – the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds.” Id. at 299.
In 2002, the American Council of the Blind and two individuals with visual impairments, Patrick Sheehan and Otis Stephens (collectively “the Council”), filed suit, alleging that the physical design of U.S. paper currency violates section 504. The complaint alleged that “[t]he ability to use [U.S.] banknotes in a fast and easy manner is an essential ingredient of independent living,” and yet “for millions of Americans with blindness or low vision, it is impossible to recognize the denomination of banknotes.” Compl. at Introduction. Identifying a variety of accommodations relating to color, size, and shape of paper currency as well as the addition of a durable tactile feature, such as embossed dots, foil, micro-perf, and raised intaglio printing, the Council sought declaratory and injunctive relief to prohibit the Secretary from continuing to manufacture banknotes greater than the $1 bill in their present format and to require the Secretary to create and implement a corrective action plan, including development of an inexpensive portable electronic device capable of accurate and rapid denomination of banknotes.3
Sheehan and Stephens submitted declarations providing substance to the alleged obstacles faced by the visually impaired in using paper currency that coping mechanisms cannot
3 The Council disclaimed any effort to seek changes to the $1 bill in moving for summary judgment. See Pls.’ Motion for Summary Judgment Text of Proposed Order, Dist. Ct. Docket 35-1, at 2 (Aug. 31, 2005); see also, e.g., Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sec.6, div. D, tit. I, § 113, 121 Stat. 1844, 1978 (2007).

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overcome. Each is highly educated and accomplished; Sheehan holds Bachelor of Arts and of Science degrees and currently works at the U.S. Department of Veterans Affairs, and Stephens has a PhD and is a professor at the University of Tennessee College of Law. Stephens has no vision while Sheehan has limited vision in one eye. Both men have developed coping mechanisms to address their disability; for example, seeking the assistance of sighted individuals or using closed circuit television to magnify bills to discern their denominations and folding bills in a manner to mark their denominations. Despite these coping mechanisms, they continue to experience obstacles in using paper currency, including instances when they were defrauded because they could not denominate bills and other instances when someone alerted them to their proffer of an incorrect denomination. Stephens observes that “[b]y being dependent on a sighted person, I can never be certain whether I have provided or received the correct denominations.” Decl. of Otis Stephens ¶ 13 (Aug. 2, 2005), Dist. Ct. Docket 35-37. He explains, “I cannot emphasize enough the feelings of insecurity and vulnerability which I experience whenever I engage in currency transactions due to my inability to distinguish between denominations.” Id. The Council also proffered evidence that the obstacles presented by the current physical design of U.S. paper currency transcend personal financial transactions and inhibit the ability of the visually impaired to secure entry-level employment that requires the handling of paper currency. Decl. of OurMoneyToo.org at 3 (Apr. 8, 2005), Dist. Ct. Docket 3515.
In 1995, the National Research Council of the National Academy of Sciences found that over 3.7 million Americans are visually impaired, more than 200,000 of whom have no vision at all. See COMM. ON CURRENCY FEATURES USABLE BY THE VISUALLY IMPAIRED, NAT’L RESEARCH COUNCIL, CURRENCY FEATURES FOR VISUALLY IMPAIRED PEOPLE 1 (Nat’l Acad. of

8
Sciences 1995) (“1995 NRC REPORT”). Age-related diseases constitute the leading causes of visual impairment in the United States so that as the population ages, the number of individuals with visual impairments will increase. Id. at 14. More than twenty-five percent (25%) of individuals over eighty-five years of age are visually impaired. Id. The Report further found that:
An important aspect of a person’s full participation in today’s society is being able to conveniently and confidentially exchange currency in everyday transactions, as when using public transportation or making purchases. U.S. citizens with low vision experience a uniquely difficult task in that U.S. banknotes are remarkably uniform in size, color, and general design. The banknotes provide no basis for denominating by blind persons.
Id. at 1 (citations omitted).4
Of the 171 authorities issuing currency identified by the 1995 NRC Report, only the United States prints bills that are identical in size and color in all denominations.5 Id. at 106-12.
4 The 1995 NRC Report recommended four possible design modifications of U.S. currency: (1) variation in length and height of each denomination; (2) large high-contrast numerals greater than half the height of a bill against a uniform background; (3) different predominant colors for each denomination; and (4) inclusion of features to assist with development of low-cost currency readers. 1995 NRC REPORT at 67-76. Further study was recommended, including of tactile features. Id. at 76.
5 After the 1995 NRC Report, U.S. paper currency was modified to incorporate subtle differences in background color in different denominations. Supplemental Decl. of Thomas A. Ferguson, Director of the Bureau of Engraving and Printing ¶ 6 (Aug. 30, 2005),

9
Of the issuing authorities, 128 use paper currency that varies in size between some denominations, 24 use large numerals, 167 use different color schemes for each denomination, and 23 incorporate tactile features. Id. at 101-04. In total, more than seventy-eight percent (78%) of authorities surveyed issued paper currency in which at least some denominations could be identified by those with no vision, either by means of tactile features or size variations.6 Since 1995, Canada has redesigned its currency to include embossed dots that vary by denomination, and the Euro, introduced in 2002, has incorporated a foil feature perceptible to touch.
The Secretary has acknowledged that the physical design of U.S. paper currency means that individuals with extremely low vision or no vision are unable to identify denominations with their own senses. Def.’s Resp. to Pls.’ Statement of Material Facts Not in Dispute ¶ 2, S.J.A. 711. Over the past three decades, a number of studies addressing access for the visually impaired have been conducted by the Bureau of Engraving and Printing, to which the Secretary has delegated his
Dist. Ct. Docket 33-6 (“Ferguson Supplemental Decl.”). However, the Secretary concedes that the various denominations remain “virtually identical in color.” Pls.’ Statement of Material Facts Not in Dispute ¶ 1 (Aug. 31, 2005), Supplemental Joint Appendix (“S.J.A.”) 683; Def.’s Resp. to Pls.’ Statement of Material Facts Not in Dispute ¶ 1 (Oct. 26, 2005), S.J.A. 711.
6 Over sixty-five percent (65%) of authorities issued currency in which every denomination either varied by size or included a tactile feature. In addition, 20 varied the size of paper currency in some denominations; 1 incorporated tactile features in some denominations; and 1 varied size and incorporated tactile features in some denominations. 1995 NRC REPORT at 106-12.

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responsibilities for the currency under 12 U.S.C. § 418,7 Treasury Order 101-07, 61 Fed. Reg. 48,727 (Sept. 16, 1996). The Bureau commissioned the 1995 NRC Report, 1995 NRC REPORT at ix-x, and has itself investigated means of making currency accessible to the visually impaired, see, e.g., BUREAU OF ENGRAVING & PRINTING, A STUDY OF MECHANISMS FOR THE DENOMINATION OF U.S. CURRENCY BY THE BLIND OR VISUALLY IMPAIRED 1 (final draft, Aug. 24, 1983), Dist. Ct. Docket 35-3 (“1983 BEP STUDY”).8 In 2001, the Bureau examined the
7 Section 418 provides:
In order to furnish suitable notes for circulation as Federal reserve notes, the Secretary of the Treasury shall cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of such notes of the denominations of $1, $2, $5, $10, $20, $50, $100, $500, $1,000, $5,000, $10,000 as may be required to supply the Federal Reserve banks. Such notes shall be in form and tenor as directed by the Secretary of the Treasury under the provisions of this chapter and shall bear the distinctive numbers of the several Federal reserve banks through which they are issued.
12 U.S.C. § 418.
8 The 1983 BEP Study addressed the utility of modifying the visual and physical design of paper currency to assist individuals with low or no vision and evaluated features incorporated into fifty-four foreign currencies. 1983 BEP STUDY at 3-4. The study concluded that the most useful design features would be different sized currency for various denominations, but because of the cost such a design change could have on the public at large and private sector commercial interests, it recommended the development of handheld electronic currency readers. Id. at 16-17.

11
possibility of adding an embossed feature to paper currency.9 In 2004, the Bureau requested proposals for low-cost portable currency readers. In this litigation the Secretary has identified as currently available a portable reader that takes only a few seconds to determine the value of a bill after it is inserted; however, it costs $270 and has difficulty identifying $20 bills. The Bureau also undertook major redesigns of paper currency in 1996 and 2004 to protect against counterfeiting. Ferguson Supplemental Decl. ¶¶ 3-7. Although some modifications implemented during these redesigns may have rendered ancillary benefits, the Secretary has not suggested that these modifications have enabled the visually impaired to independently identify the denomination of paper currency without purchasing an expensive portable reader. Def.’s Resp. to Pls.’ Statement of Material Facts Not in Dispute, S.J.A. 711.
With respect to the possible accommodations described in the amended complaint, all of which are currently used in some other countries and have been recommended by the several studies conducted by or on behalf of the Bureau, the Director of the Bureau provided estimates of the costs of implementation. Including a numeral on each denomination at least sixty percent (60%) of current note height would cost approximately $4.5 million and increase the annual cost of currency production by up to $400,000. Ferguson Supplemental Decl. ¶ 11. Addition
9 The Bureau requested that the Canadian Bank Note Company, which developed the embossed feature recently incorporated into Canadian paper currency, apply its methodology to ten U.S. bank notes and test them for durability. Decl. of H. Hutchinson Holton ¶¶ 3-4, 8 (Aug. 25, 2005), Dist. Ct. Docket 35-44. The Company concluded that although the embossed feature retained a “satisfactory” height, a larger, scientifically sound sample was required to determine accurately the effect of its embossing technique on U.S. currency. Id. at ¶¶ 8-10; see also CANADIAN BANK NOTE CO., TACTILE FEATURE FOR THE BLIND (2001), Dist. Ct. Docket 35-19.

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of a durable tactile feature would cost between $45 million and $75 million and increase the annual cost of currency production by between $9 million and $18 million. Id. ¶¶ 9-10. Adopting different sizes for each denomination could cost in excess of $200 million. Def.’s Response to Pls.’ Second Request for Production of Documents at 12 (Aug. 27, 2004), Dist. Ct. Docket 43-2.10 All of these cost estimates, however, include making changes to the $1 bill, as to which no change is sought and which according to the Bureau accounts for roughly half of all currency printed each year. Decl. of Thomas A. Ferguson, Director of the Bureau of Engraving and Printing, in response to Pls.’ Motion for Summary Judgment ¶¶ 11-13 (Oct. 25, 2005), Dist. Ct. Docket 43-1 (“Ferguson S.J. Decl.”).
The district court, in response to the parties’ cross-motions for summary judgment,11 granted the Council’s motion in part and denied the Secretary’s motion. Am. Council of the Blind v. Paulson, 463 F. Supp. 2d 51 (D.D.C. 2006). Although rejecting the claim that the visually impaired have “no access” to paper
10 The Bureau’s estimates far exceed those in its 1983 study, even accounting for inflation, which roughly halved the purchasing power of the dollar between 1983 and 2005, Bureau of Labor Statistics, Department of Labor, CPI Inflations Calculator, http://www.bls.gov/data/home.htm. In 1983, the Bureau estimated that producing paper currency in different sizes would cost $26 million initially and increase annual production costs by $7 million, and that incorporation of a durable, tactile feature would cost $8.1 million initially and $3.05 million annually. 1983 BEP STUDY 4, 14.
11 The district court denied the Secretary’s initial motion for summary judgment, and denied in part a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6); the district court dismissed the United States Treasurer, who has no authority over the design of currency, as a co-defendant. Am. Council of the Blind v. Snow, 311 F. Supp. 2d 86, 90 (D.D.C. 2004).

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currency, id. at 59, the district court concluded that the Council had met its burden to show that the visually impaired are denied meaningful access. In response to the Secretary’s argument that existing coping mechanisms sufficed, the district court found that while “[t]here was a time when disabled people had no choice but to ask for help – to rely on the kindness of strangers[,] . . . [i]t can no longer be successfully argued that a blind person has meaningful access to currency if she cannot accurately identify paper money without assistance.” Id. (internal quotation marks omitted). The district court also found that the Council had identified “several potential accommodations that are reasonable on their face.” Id. at 62. The district court further concluded that the Secretary had failed to meet his burden to demonstrate that providing any accommodation to the visually impaired would impose an undue burden. Id. at 60. The district court noted that the Secretary had “tacitly conceded at least the feasibility of each proposed feature, except raised intaglio printing, by providing cost estimates.” Id. at 61. Finding further that the estimated costs, which are “the heart of the government’s undue burden argument,” id. at 62, “would represent only a small fraction of [the Bureau’s] annual expenditures,” the district court observed that the costs could be “even smaller” were adjustments for the visually impaired incorporated in a larger redesign, id. Accordingly, the district court entered a declaratory judgment that the Secretary’s “failure to design, produce and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates § 504 of the Rehabilitation Act,” and ordered further proceedings on injunctive relief. Id. at 63. In so doing, the district court stated that it “has neither the expertise, nor, I believe, the power, to choose among the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law.” Id. at 62.

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The Secretary appeals, and we exercise our discretion to entertain this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court certified that its order “involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal from this order may materially advance the ultimate termination of the litigation.” Id. at 62-63. The Secretary has met his burden of showing that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 474 (1978) (internal quotation marks omitted). The Secretary explains that the district court has ruled on all issues of section 504 liability and future proceedings in the district court are aimed at determining only what injunctive relief is appropriate. Were we to conclude that the Secretary should have prevailed on summary judgment, our consideration of this matter would eliminate the need for further proceedings and preserve judicial resources. On the other hand, were we to conclude that the district court properly granted partial summary judgment for the Council, our consideration of this matter would eliminate uncertainty about liability before the Secretary invests resources in determining how best to come into compliance with section 504.
The Council’s objection that because the district court has not yet ordered a specific remedy the Secretary’s contentions regarding the issue of undue burden are hypothetical, and that we should therefore decline to reach the undue burden issue, is not well taken. The court cannot address the Secretary’s liability under section 504 without considering whether he has demonstrated that implementing all accommodations would be unduly burdensome. See Am. Pub. Transit Ass’n v. Lewis, 655 F.2d 1272, 1278 (D.C. Cir. 1981) (quoting Davis, 442 U.S. at 412); see also Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1196 (10th Cir. 2007); Ams. Disabled for

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Accessible Pub. Transp. v. Skinner, 881 F.2d 1184, 1192 (3d Cir. 1989) (en banc). Consideration of this question is not hypothetical; at the summary judgment stage of the proceedings, the Secretary, as the non-moving party, had to proffer sufficient evidence to create a material issue of disputed fact with regard to all accommodations found facially reasonable, effective, and feasible by the district court. See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The court can properly consider whether the Secretary has met this burden.
Our dissenting colleague would deny the Secretary’s request for an interlocutory appeal based on a perception that the record contains insufficient information about the effectiveness and feasibility of various accommodations. See Dissenting Op. at 1-2. However, the Secretary contends only that the identified accommodations are too costly, conceding that various tactile features are both effective and feasible based on the implementation of such accommodations in other countries. See infra pp. 31-32. Consequently, our dissenting colleague’s invocation of legal arguments that have no basis in the history of this lawsuit cannot refute the conclusion that the Secretary’s argument in support of an interlocutory appeal is well taken. Because the Secretary does not challenge the propriety of the district court’s allocation of burdens, the issue of whether the Secretary has demonstrated a sufficient burden with respect to the accommodations found by the district court to be reasonable “on the face of things,” Am. Council of the Blind, 463 F. Supp. 2d at 60, is presented in sharp relief.
II.
To prove a violation of section 504, the plaintiffs must show that (1) they are disabled within the meaning of the Rehabilitation Act, (2) they are otherwise qualified, (3) they were excluded from, denied the benefit of, or subject to

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discrimination under a program or activity, and (4) the program or activity is carried out by a federal executive agency or with federal funds. The defendant may assert as an affirmative defense to liability that accommodating the plaintiffs’ disabilities would constitute an undue burden.12 Our review of the partial grant of summary judgment is de novo. See Tao, 27 F.3d at 638.
The Secretary does not contest three self-evident elements of liability under section 504. First, the visually impaired are disabled within the meaning of the statute. Second, the visually impaired are qualified to engage in commerce using U.S. currency. Third, the production and design of currency is a “program or activity” carried out by an Executive agency within the meaning of section 504.13 In addressing the remaining
12 See Davis, 442 U.S. at 412; Barth v. Gelb, 2 F.3d 1180, 1182 (D.C. Cir. 1993); Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir. 1997), abrogated on other grounds by Erickson v. Bd. of Governors of State Colls. & Univs. for Ne. Ill. Univ., 207 F.3d 945, 948 (7th Cir. 2000).
13 The Secretary’s failure to challenge the applicability of section 504 is understandable given the expansive meaning of the words “any program or activity.” See United States v. Gonzales, 520 U.S. 1, 5 (1997); Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002); Johnson v. City of Saline, 151 F.3d 564, 570 (6th Cir. 1998); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997), superseded on other grounds, Zevos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). Further, the federal agencies interpreting section 504, including the Treasury Department, have concluded that “a federally conducted program or activity is, in simple terms, anything a Federal agency does.” DEP’T OF THE TREASURY, ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN TREASURY PROGRAMS, 56 Fed. Reg. 40,781, 40,782 (Aug. 16, 1991); see also, e.g., DEP’T OF THE INTERIOR,

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issues, we note that, as the Secretary proposed, the district court applied the burden shifting approach in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002), requiring the Council to demonstrate that “a requested accommodation would be ‘reasonable on its face,’” and then shifting the burden to the Secretary to demonstrate ultimately that an accommodation would constitute an undue burden. Am. Council of the Blind, 463 F. Supp. 2d at 59 (quoting U.S. Airways, 535 U.S. at 402). Although the Supreme Court’s discussion is instructive, U.S. Airways does not strictly govern claims under section 504. That case involved balancing reasonable accommodations in employment against the hardship imposed on employers under Title I of the ADA, which contains terms that do not appear in section 504. Id. at 400-02.14 However, we need not decide whether the plaintiffs’ burden includes demonstrating that a proposed accommodation is facially reasonable. The Council could surmount this hurdle because it identifies accommodations that other countries use in practice, that the National Research Council has recommended for consideration, and that the
ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY CONDUCTED PROGRAMS, 58 Fed. Reg. 57,690, 57,691 (Oct. 26, 1993); CENT. INTELLIGENCE AGENCY, ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE CENTRAL INTELLIGENCE AGENCY, 57 Fed. Reg. 39,604, 39,605 (Sept. 1, 1992).
14 Title I of the ADA requires “making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [a] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A). Neither of the italicized terms appears in section 504 although the Supreme Court has used similar terms in discussing section 504, see, e.g., Davis, 442 U.S. at 412.

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Secretary has not suggested are infeasible and the costs of some, by the Secretary’s own estimates, are of similar magnitude to the costs of recent paper currency redesigns. As millions of individuals with visual impairment face daily obstacles in using U.S. paper currency, requiring the Secretary to adopt an accommodation would not be disproportionate to the benefit. Cf. Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995).
A. The Secretary does not dispute that the visually impaired cannot determine the denominations of paper currency without either the assistance of others or the use of expensive electronics. Instead, he contends that coping mechanisms suffice to provide the visually impaired with all of the access that section 504 requires.
Few courts have considered whether the visually impaired have meaningful access where information is exclusively provided in a format readable only by the sighted, perhaps because federal regulations implementing section 504 and Title II of the ADA have expressly required accommodations.15
15 For example, Treasury Department regulations require it to “furnish appropriate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency,” 31 C.F.R. § 17.160(a)(1), including “Brailled materials, audio recordings and other similar services and devices,” id. § 17.103(c). Other departments, such as Homeland Security, Agriculture, and Commerce, have similar provisions in their regulations. See 6 C.F.R. §§ 15.60, 15.3(a); 7 C.F.R. § 15b.27(c); 15 C.F.R. § 8b.4. The Justice Department imposes similar requirements on state and local governments under the ADA, see 28 C.F.R. §§ 35.104, 35.160, and has specifically indicated that the “[u]se of printed information alone” is insufficient, DEPARTMENT OF JUSTICE, ADA TITLE II TECHNICAL

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However, the Seventh Circuit has held that under section 504 public schools must provide examinations in a format accessible to the visually impaired. Brookhart v. Ill. State Bd. of Educ., 697 F.2d 179 (7th Cir. 1983). Its rationale was straightforward: A student “who is unable to disclose the degree of learning he actually possesses because of the test format or environment would be the object of discrimination solely on the basis of his handicap.” Id. at 184; see also Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1377 (N.D. Ga. 2002); cf. Camarillo v. Carrols Corp., 518 F.3d 153, 156-58 (2d Cir. 2008).
Although the cases addressing meaningful access are necessarily fact-specific, they do reflect, in light of Supreme Court guidance, a general pattern: Where the plaintiffs identify an obstacle that impedes their access to a government program or benefit, they likely have established that they lack meaningful access to the program or benefit. By contrast, where the plaintiffs seek to expand the substantive scope of a program or benefit, they likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access. For instance, the physically impaired lack meaningful access where mass transit or public buildings do not provide wheelchair access, see, e.g., Ability Ctr., 385 F.3d at 910; United States v. Bd. of Trs. for the Univ. of Ala., 908 F.2d 740, 751 (11th Cir. 1990); Dopico v. Goldschmidt, 687 F.2d 644, 652-53 (2d Cir. 1982), and deaf individuals lack meaningful access to government activities or programs without the provision of interpretive assistance, see, e.g., Randolph, 170 F.3d at 858; Rothschild v. Grottenthaler, 907 F.2d 286, 291 (2d Cir. 1990); Bd. of Trs. for the Univ. of Ala., 908 F.2d at 748. As the Second Circuit explained in Dopico:
ASSISTANCE MANUAL II-3.3000 (1993).

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The existing barriers to the ‘participation’ of the wheelchair-bound are incidental to the design of facilities and the allocation of services, rather than being integral to the nature of public transportation itself, just as a flight of stairs is incidental to a law school’s construction but has no bearing on the ability of the otherwise qualified handicapped student to study law.
687 F.2d at 653. On the other hand, section 504 “does not mandate the provision of new benefits.” Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999); see also Crawford, 115 F.3d at 486. In Choate, the Supreme Court determined that the state was not required to expand its Medicaid benefits “simply to meet the reality that the handicapped have greater medical needs.” 469 U.S. at 303; see also Modderno v. King, 82 F.3d 1059, 1062 (D.C. Cir. 1996); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 561 (7th Cir. 1999). Similarly, in Jones v. City of Monroe, 341 F.3d 474 (6th Cir. 2003), the Sixth Circuit concluded that the city had not denied meaningful access to free parking in denying a special privilege to a disabled resident to park near her office. Viewed as a challenge to the scope of a non-discriminatory program, the court stated that the “benefit that [the city] is providing to all of its citizens, including [the plaintiff], is free downtown parking at specific locations; it is not free downtown parking that is accessible to wherever a citizen, disabled or non-disabled, chooses to go or work.” Id. at 479.
Under this analytical approach, it is clear that the Council seeks only to remove an obstacle that the visually impaired confront in using paper currency, and not, as in Choate and Jones, to obtain a substantively different benefit than is already provided by the U.S. currency system. U.S. currency, which has constitutional underpinnings, see U.S. CONST. Art. 1 § 8, is

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intended to be “the universal medium or common standard, by a comparison with which the value of all merchandise may be ascertained,” JOSEPH STORY, 3 COMMENTARIES ON THE CONSTITUTION § 1113.16 The current design of paper money springs from the world of the sighted. Upon casual inspection, anyone with good vision can readily discern the value of U.S. currency; yet even the most searching tactile examination will reveal no difference between a $100 bill and a $1 bill. The Secretary has identified no reason that requires paper currency to be uniform to the touch. Instead, the fact that U.S. paper currency does not include features that are detectable by the
16 See also ARISTOTLE, NICOMACHEAN ETHICS, Book 5, ch. 5 (W.D. Ross trans., 1908) (350 B.C.) (“[A]ll things that are exchanged must be somehow comparable. It is for this end that money has been introduced. . . .”). Founding fathers believed that U.S. currency should be readily usable by the public, see GRAND COMM. OF THE CONTINENTAL CONG., PROPOSITIONS REFLECTING THE COINAGE OF GOLD, SILVER AND COPPER 1 (1785) (“CONTINENTAL CONGRESS COMMITTEE REPORT”) (“The money of the United States should be equally fitted to all.”), and easy identification of the value of currency was considered one of its crucial characteristics. In a letter to the Continental Congress, Secretary of the Treasury Robert Morris explained that the purpose of coining money was “in order that the weight and fineness might be known at the first view, and of consequence the value be instantly ascertained.” Letter from Robert Morris to Continental Congress (Jan. 15, 1782), reprinted in CONTINENTAL CONGRESS COMMITTEE REPORT at 3; see also CHARLES DE MONTESQUIEU, 22 SPIRIT OF THE LAWS § 2 (Thomas Nugent trans., 1752) (1748) (noting that governments create standardized money so that its value “may be known by inspection only”). Morris proceeded to examine means of making currency “perfectly intelligible to the whole People,” advocating a currency that could be easily divisible to enable ease of use by “the great mass of people. Wherever such things require much labor, time and reflection, the greater number who do not know, are made the dupes of the lesser number who do.” MORRIS, reprinted in CONTINENTAL CONGRESS COMMITTEE REPORT at 5.

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visually impaired appears to have been a result of the type of “thoughtlessness and indifference,” Choate, 469 U.S. at 295, that Congress targeted under section 504.
Moreover, the centrality to the Rehabilitation Act of empowering the disabled to engage in economic activity imbues the accessibility of currency with special importance. The visually impaired can hardly be “empower[ed] . . . to maximize [their] employment, economic self-sufficiency, independence, and inclusion and integration into society,” 29 U.S.C. § 701(b)(1), if in everyday transactions they cannot use the paper currency that they possess without the assistance of third persons. Where the basic task of independently evaluating the worth of currency in excess of 99 cents is difficult or impossible, the visually impaired are forever relegated to depend on “the kindness of strangers” to shop for groceries, hire a taxi, or buy a newspaper or cup of coffee.
We need not define precisely the severity of the deprivation that a plaintiff must experience in accessing a program, benefit, or service to demonstrate a denial of meaningful access. As sister circuits have recognized by requiring public infrastructures to be wheelchair accessible, see, e.g., Ability Ctr., 385 F.3d 901; Bd. of Trs. for the Univ. of Ala., 908 F.2d 740; Dopico, 687 F.2d 644, the Rehabilitation Act’s emphasis on independent living and self-sufficiency ensures that, for the disabled, the enjoyment of a public benefit is not contingent upon the cooperation of third persons. On this record, the Secretary is hard-pressed to overcome the Council’s showing that the visually impaired are denied meaningful access to U.S. paper currency, and his attempts to do so are unpersuasive.
First, the Secretary contends that because the visually impaired have developed coping mechanisms for using paper currency, whether by relying on third parties, purchasing

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expensive computer equipment, or folding corners of paper currency in a particular manner to distinguish denominations, they are not denied meaningful access under section 504. The Secretary also notes that the use of credit cards affords an alternative means for the visually impaired to engage in commerce.
But coping mechanisms and alternate means of participating in economic activity do not address the scope of the denial of access that the Council has shown. The Secretary’s argument is analogous to contending that merely because the mobility impaired may be able either to rely on the assistance of strangers or to crawl on all fours in navigating architectural obstacles, cf. Tennessee v. Lane, 541 U.S. 509 (2004), they are not denied meaningful access to public buildings, see, e.g., Chaffin v. Kan. State Fair Bd., 348 F.3d 850 (10th Cir. 2003); cf. United States v. Edward Rose & Sons, 384 F.3d 258 (6th Cir. 2004). Such dependence is anathema to the stated purpose of the Rehabilitation Act, 29 U.S.C. § 701(b); see also J.D. v. Pawlet Sch. Dist., 224 F.3d at 70, and places the visually impaired at a distinct disadvantage in two-way transactions involving paper currency because they can neither control the actions of those with whom they deal nor independently discern whether the paper currency they receive is correct. Instead they are compelled to rely on the honesty and carefulness of sighted individuals who often are on the opposite side of a financial transaction. Further, credit cards do not provide an adequate substitute because they have not replaced cash in many daily transactions and may pose challenges similar to those posed by paper currency if the visually impaired cannot verify the charged amounts stated in the receipts. The availability of credit cards also does not overcome obstacles for the visually impaired in securing certain employment opportunities, such as various entry-level jobs.

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Moreover, the courts have recognized that the mere ability of the disabled to spend substantial sums of money to overcome obstacles attendant to a government benefit or program does not eliminate a denial of meaningful access under section 504. For example, in Rothschild, the Second Circuit concluded that deaf parents were denied meaningful access under section 504 to certain school activities when the school refused to provide interpreters, even though the parents had previously paid for interpreters for some events. 907 F.2d at 291. The court reasoned that it was “solely the Rothchilds’ inability, as deaf persons, to effectively communicate with teachers and other School District personnel that prevents their participation in . . . School District activities.” Id. It followed that they were “being unfairly ‘excluded from participation in a federally funded program solely by reason of [their] handicap.’” Id. (quoting Davis, 442 U.S. at 405) (alteration in original).
Second, the Secretary contends that the visually impaired have not been denied meaningful access to U.S. paper currency in view of the absence of evidence of their being frequently defrauded. A somewhat astounding proposition on its face, the Secretary implies that criminal victimization is a necessary predicate for the disabled to invoke the rights protected under section 504. However, section 504 “is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity.” Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir. 1995).
Finally, the Secretary contends that the district court’s conclusion that meaningful access is denied if the visually impaired “cannot accurately identify paper money without assistance,” Am. Council of the Blind, 463 F. Supp. 2d at 59, is without legal foundation. As a response to the Secretary’s argument that coping mechanisms adopted by the visually impaired constituted meaningful access, however, the district

25
court’s statement is not fairly read as foreclosing reliance on technological auxiliary aids, such as a portable currency reader. Courts have held that government-provided interpretive services can provide meaningful access to the disabled, see Randolph, 170 F.3d 850; Rothschild, 907 F.2d 286; Bd. of Trs. for the Univ. of Ala., 908 F.2d 740,17 although there is no occasion for us to address whether inexpensive, commercially provided auxiliary aids could satisfy the Secretary’s statutory obligation to ensure meaningful access to the critical government programs for which Congress has assigned him responsibility.
B. The district court rejected the Secretary’s affirmative defense that accommodating the visually impaired would impose an undue burden. Am. Council of the Blind, 463 F.
17 Neither Bird v. Lewis & Clark College, 303 F.3d 1015 (9th Cir. 2002), nor Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), relied on by the Secretary, support the proposition that a disabled individual has meaningful access when dependent on assistance from strangers. In Bird v. Lewis & Clark College, 303 F.3d 1015 (9th Cir. 2002), the claim was made that a travel-abroad program had violated section 504 and Title III of the ADA by making insufficient accommodation for a disabled student. The Ninth Circuit concluded that the hiring of two helpers, provision of alternate transportation and lodging, and purchase of a second wheelchair and special showerhead were sufficient accommodations provided by the school because “‘when viewed in its entirety, [the program] is readily accessible to and usable by individuals with disabilities.’” Id. at 1021 (quoting Barden v. City of Sacramento, 292 F.3d 1073, 1075-76 (9th Cir. 2002)). In Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), the plaintiff disclaimed any argument that section 504 required the provision of Braille ballots, id. at 650, and the court’s decision turned on its interpretation of a state’s constitution rather than section 504.

26
Supp. 2d at 62.18 On appeal, the Secretary contends, not that he does not bear the burden, but rather that the district court “plainly erred in holding categorically that none of the plaintiffs’ proposals to modify the currency would impose an undue burden.” Appellant’s Br. at 34. We conclude that the Secretary has failed to establish that implementing all accommodations would be unduly burdensome and that therefore the grant of partial summary judgment for the Council was appropriate.
First, the Secretary misconstrues section 504, contending that the district court improperly validated the most expensive accommodation. See Appellant’s Br. at 36. However, liability under section 504 requires only that the least burdensome accommodation not be unduly burdensome. The Secretary has discretion to chose from a range of accommodations, and his failure to demonstrate that all accommodations found by the district court to be facially reasonable would pose an undue burden presents no occasion for us to address any particular accommodation.
Second, the district court provided a fulsome analysis of the deficiencies in the financial aspects of the Secretary’s evidence that we need only highlight here. See Am. Council of the Blind, 453 F. Supp. 2d at 60-62. Suffice it to note, the estimates of costs, all of which were submitted by the Bureau, appear inflated because they include alteration of the $1 bill. See Ferguson S.J. Decl. ¶ 11; Am. Council of the Blind, 463 F. Supp. 2d at 61 n.13.
18 In the related context of analyzing the concept of “undue hardship,” used to qualify an employer’s obligation to accommodate disabled employees under section 501 of the Rehabilitation Act and Title I of the ADA, the Seventh Circuit suggested that the modifier “undue” implies a comparison between the cost of an accommodation and the resources of the defendant. Vande Zande, 44 F.3d at 542-43; see also Barth, 2 F.3d at 1186-87.

27
Approximately half of the paper currency that the Bureau prints in any given year are $1 bills. See. Ferguson S.J. Decl. ¶ 13; Def.’s Resp. to Pls.’ Statement of Material Facts Not in Dispute ¶ 69, S.J.A. 717. The Secretary also suggested that the accommodations identified by the Council could require modifications that would result in the need for more frequent replacement of paper currency, further increasing costs. Am. Council of the Blind, 463 F. Supp. 2d at 60-61.19 However, the district court noted the absence of any statistically significant evidence from the Secretary on reduction in life span of the banknotes, id., and on appeal the Secretary has not challenged this finding. Although the Bureau stated that tactile features could reduce the useful life of currency, see Ferguson S.J. Decl. ¶ 7; see also 1983 BEP STUDY at 16, other currencies continue to use them and the Secretary’s reference to a May 2007 paper about the durability of the embossed feature on Canadian currency, see Reply Br. at 21,20 calls into question only the efficacy of that particular kind of tactile feature; it does not indicate that embossing reduces the usable life of the currency
19 Although the Secretary does not address longevity in his opening brief, and typically the argument would be forfeited, see Bd. of Regents of the Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996), the Council addressed the subject in its brief, Appellee’s Br. at 47-49, to which the Secretary replied, Reply Br. at 20-21, and our review of the grant of partial summary judgment is de novo, see Tao, 27 F.3d at 638.
20 Charles Spencer & Dan Dupuis, Bank Note Accessibility Features for the Blind and Vision Impaired: The Canadian Experience (May 2007) (unpublished paper presented by Canadian Bank of Canada officials at a Currency Conference, Bangkok, Thailand), Addendum to Reply Br.

28
and expressly notes that methods exist to improve durability.21
Third, because other currency systems accommodate the needs of the visually impaired, the Secretary’s burden in demonstrating that implementing an accommodation would be unduly burdensome is particularly heavy. The Secretary has not explained why U.S. paper currency is so different or the situation of the Bureau so unique that the costs associated with identified accommodations would constitute an undue burden. Although “[a]ny change to the design of U.S. currency would undoubtedly require a substantial investment of labor, time, and money,” Am. Council of the Blind, 463 F. Supp. 2d at 62, the Secretary does not challenge the district court’s findings that the Bureau’s cost estimates for the design modification that the Council has identified would constitute a “small fraction of [the Bureau’s] annual expenditures,”22 and that even these costs could be further reduced were a new feature for the visually impaired incorporated into a redesign planned for other purposes, such as occurred in 1996 and 2004 to address counterfeiting, id. Independent of this litigation, the Bureau has
21 Our dissenting colleague notes that the tactile features highlighted by the Council were not included “in the complaint until three and a half years after the case began, after discovery closed.” Dissenting Op. at 5 n.7. However, the Secretary advances no contention that he was prejudiced by the amended complaint, the Director of BEP has estimated the cost of each accommodation (except raised intaglio printing), Am. Council of the Blind, 463 F. Supp. 2d at 61, and the Secretary did not seek additional discovery.
22 The district court observed that the Bureau “is not financed by appropriations from Congress, but by a revolving fund that is replenished by the sale of its products - currency and postage stamps to other federal entities. In 2004, the [Bureau] earned revenues of $525 million. . . .” 463 F. Supp. 2d at 54; see also 2005 New Currency Budget, Dist. Ct. Docket 60-9.

29
stated that it “expects to redesign U.S. currency every seven to ten years.” BUREAU OF ENGRAVING & PRINTING, CHIEF FINANCIAL OFFICER, PERFORMANCE & ACCOUNTABILITY REPORT 7 (2004), Dist. Ct. Docket 35-41. In view of the costs of these prior redesigns,23 even the inflated costs proffered by the Secretary are not so out of line as to suggest an undue burden. Although the Secretary must assess priorities, section 504 is no less of a statutory command than the one prompting the Secretary to expend large sums of money to combat counterfeiting.
As regards the burden on third parties, the Secretary and various studies have recognized that alteration of the size of denominations could impose third-party costs. See, e.g., 1983 BEP STUDY at 16; see also Amicus Br. of the National Automatic Vending Machine Association (“NAMA”). The Secretary acknowledges, however, that “the burdens imposed on other entities or the public are not usually considered in determining whether proposed changes to accommodate the disabled are reasonable under section 504.” Appellant’s Br. at 37 n.9. He nonetheless urges the court to consider “external, third party costs” because of “unique circumstances . . . [in which] [s]ignificant changes to currency will have an obvious and immediate impact on all entities that process currency, and the costs of any such changes will ultimately be borne by the public.” Id. Assuming without deciding that such considerations are relevant in determining liability under section 504, we conclude that the Secretary has failed to demonstrate a material issue of disputed fact on the severity of each facially
23 The cost of the 1996 redesign was approximately $34 million and increased the annual cost of producing currency by over $31 million. The cost for the 2004 redesign was over $113 million and increased the annual cost of producing currency by more than $25 million. Ferguson Supplemental Decl. ¶¶ 4-7.

30
reasonable accommodation on third parties, including cash processors, cash registers, vending machines, and change machines.
The district court found that the record contained “little information about the effect of currency changes on third parties” and that the existing evidence was “inconclusive.” Am. Council of the Blind, 463 F. Supp. 2d at 60 n.10. A partially disclosed survey by NAMA was limited to eight firms and addressed only the addition of Braille and alteration of the size of currency. Further, “it appear[ed] to have been conducted under the assumption . . . that plaintiffs seek changes to the $1 bill.” Id. The district court also found that “other respondents, particularly those that conduct business outside the U.S., stated that changes would not be difficult to implement.” Id.
The Secretary does not contest these findings on appeal, asserting instead that “it is self evident that . . . changes would impose significant new burdens on . . . various entities in the private sector.” Appellants’ Br. at 38. Assertions are not evidence and thus cannot create a material issue of fact in dispute to justify reversal here. Moreover, future redesigns of currency for security purposes are already likely to require retooling of currency-handling machinery. See Amicus Br. of NAMA at 14-16. The Secretary does not suggest that thirdparty costs could not be lessened or eliminated if incorporated into a larger redesign.
Finally, the contention that the district court impermissibly curtailed the Secretary’s discretion by stating that “design changes that would accommodate plaintiffs who have low vision, but who are not blind . . . [are] at best, a half-measure,” Am. Council of the Blind, 463 F. Supp. 2d at 59 n.9, is unpersuasive. The district court expressly acknowledged the Secretary’s broad discretion to determine how to come into

31
compliance with section 504. Id. at 62. Because the Secretary has not demonstrated that accommodating those with no vision would constitute an undue burden, however, the alteration of currency to assist only those with low vision would not satisfy his obligation under section 504 by continuing to deny the benefits of currency to others because of their visual impairment.
Our dissenting colleague postulates a different litigation strategy that the Secretary could have chosen but did not, contending that the Council failed to establish the “effectiveness” of identified accommodations other than changing the size of money. Dissenting Op. at 2-4. The Secretary did not argue, either in the district court or on appeal, that summary judgment was inappropriate because the Council failed to establish that tactile features would not enable the visually impaired to denominate bills and conceded that individuals with no vision can detect the micro-perforation, foil, or embossed symbols included on the Euro, Swiss Franc, and Canadian Dollar.24 Pls.’ Statement of Material Facts Not in
24 The excerpts from the Statement of Facts in the Secretary’s brief that are relied upon by our dissenting colleague, Dissenting Op. at 3-4, are not to the contrary and “allud[ing] to the factual basis for [a] claim in the statement of facts” does not raise a legal argument. AMSC Subsidiary Corp. v. FCC, 215 F.3d 1154, 1161 n. ** (D.C. Cir. 2000). The Secretary describes the 1995 NRC Report as including four recommendations and concludes that of the four, only changing the size of money would help those with no vision. Appellant’s Br. at 7-8. However, tactile features were not among the four recommendations, and the Report “urge[d]” research into both durable tactile features and mirco-perforation. 1995 NRC Study at 5; see supra n.4. Further, the Secretary’s statement that the Bureau has previously concluded that visually disabled individuals “could not identify [micro-perforation] with sufficient accuracy for currency denomination” and that the “pattern could be altered or simulated

32
Dispute ¶¶ 46, 54, 59, S.J.A. 695, 697, 698; Def.’s Resp. to Pls.’ Statement of Material Facts Not in Dispute ¶¶ 46, 54, 59, S.J.A. 714, 715. Neither did the Secretary dispute the feasibility of any design features other than raised intaglio printing. See Def. Response to Pls.’ Third and Fourth Set of Interrogatories and First Request for Admission at 6-7, Joint Appendix 529-30; Am. Council of the Blind, 463 F. Supp. 2d at 61. Instead, the Secretary relied on costs to establish that implementing all accommodations would be unduly burdensome. On appeal, the Secretary does not challenge the district court’s analysis of the cost data, contending only that the district court erred in concluding that this evidence was insufficient. For our dissenting colleague to conclude that “my colleagues have not identified a single accommodation that is undisputably ‘reasonable, effective, and feasible,’ and for which there is no material issue about an undue burden,” Dissenting Op. at 4 (citation omitted), is to rewrite the record and the manner in which the Secretary has chosen to present his challenge on appeal. Whereas the Secretary has chosen to defend on the ground that he cannot be held liable under section 504 because implementing each identified accommodation would pose an undue burden, our dissenting colleague has focused on legal arguments antecedent to the undue burden issue in an attempt to relitigate the Secretary’s case for him and purported to find disputed facts with respect to issues the Secretary has not raised.
easily,” Appellant’s Br. at 9-10, does not change his concession that micro-perforation “could provide a meaningful denomination cue merely by virtue of its location on the banknote, even if the specific micro-perforation pattern is not itself sufficient to provide denomination information,” nor the fact that Swiss currency successfully incorporates such a feature. Pls.’ Statement of Material Facts Not in Dispute ¶¶ 44, 46 S.J.A. 694-95; Def.’s Resp. to Pls.’ Statement of Material Facts Not in Dispute ¶¶ 44, 46 S.J.A. 714. Finally, the 2007 Canadian study, see supra n. 20 & accompanying text, was not before the district court.

33
We hold that the Council has demonstrated both the denial of meaningful access and the availability of facially reasonable accommodations that are feasible and efficacious, and that the Secretary has not demonstrated that implementation of every such accommodation would involve an undue burden. Accordingly, we affirm the grant of partial summary judgment on the Secretary’s liability under section 504, and we remand the case for the district court to address the Council’s request for injunctive relief.

RANDOLPH, Circuit Judge, dissenting: We should have dismissed this interlocutory appeal. The case arrived here after the district court, on its own motion, certified that an otherwise unappealable order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Another panel directed the parties to brief the question whether we should exercise our discretion to accept the appeal. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). The plaintiff – the American Council of the Blind – opposed the appeal, rightly in my view, on the grounds that the “district court was notably silent as to what remedy it would ultimately order,” that the issue of undue burden is “purely hypothetical” at this stage, that future proceedings might render the issue moot, and that nothing this court could say on the issue would advance the termination of the litigation. Br. for Appellee at 60-61 (citing Control Data Corp. v. International Business Machines Corp., 421 F.2d 323, 325 (8th Cir. 1970)). The Secretary agrees that “the question whether specific changes to the currency are unduly burdensome is ‘hypothetical’ because the district court has not yet ordered any particular changes.” Reply Br. for Appellant at 19. As a result, “the question whether [a tactile] feature would be unduly burdensome is not properly before this Court on interlocutory appeal.” Id. Yet the majority plunges ahead to decide issues neither party thinks are before us.
The product of this ill-conceived appeal is proof positive that it should never have been allowed. According to the majority opinion, the Secretary loses because he failed to carry his burden of proving that every possible adjustment – every accommodation – would amount to an “undue burden.” Maj. Op. at 16. This formulation, and others like it in the opinion, display a fundamental misconception. The Secretary had no burden of the sort the majority describes. To decide on summary judgment that the Secretary violated the Act, there had to be an effective accommodation the government could

2
implement without imposing an “undue burden” on itself or the private sector.1 And the effectiveness of the accommodation had to be established as an undisputed material fact. Yet with one exception, the district court never specified which of plaintiff’s proposals would be effective and neither have my colleagues. The one exception is changing the size of bills according to their denomination.2 While this might be effective (and might require an Act of Congress),3 material facts were in dispute regarding the burden of implementing such a system. The government put forth evidence indicating that it would cost
1 Failure to implement an ineffective accommodation is not a violation of the Rehabilitation Act. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 409-10 (1979).
2 Plaintiff also sought “a permanent injunction mandating that [the Secretary] diligently pursue the development of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes.” First Amended Complaint for Declaratory and Injunctive Relief 36 (Nov. 23, 2005). Such a device might be effective, but there is no evidence that it could be produced at an affordable price.
3 Congress has prohibited the Treasury from redesigning the $1 bill, which is why the Council does not seek to change its size. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sec. 6, div. D, tit. I, § 113, 121 Stat. 1844, 1978 (2007). If euro banknotes are any guide, progressively increasing the size of American currency from the $1 bill on up would lead to huge bills in the higher denominations. The largest euro banknote (€500) is 40 millimeters longer and 20 millimeters taller than the smallest (€5), yet the $1 bill is already 36 millimeters longer and 4 millimeters taller than the €5 banknote. ECB: Banknotes, http://www.ecb.int/bc/euro/banknotes/ html/index.en.html (last visited May 8, 2008).

3
billions of dollars to alter private vending machines4 and ATMs and that rendering current wallets and purses obsolete would impose additional costs. A member of the plaintiff’s Advocacy Services Committee admitted that varying the size of the currency “really does pose an undue burden on business.” Defendant’s Renewed Motion to Dismiss or for Summary Judgment 29 (Aug. 31, 2005). The Rehabilitation Act is not violated if the proposed accommodation imposes an “undue burden,” see Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993), and billions of dollars may well constitute such a burden, even though a good portion of the amount would fall on the private sector. See Am. Pub. Transit Ass’n v. Lewis, 655 F.2d 1272, 1278 (D.C. Cir. 1981) (holding that the Rehabilitation Act cannot justify federal regulations that “impose extremely heavy financial burdens on local transit authorities”).
I do not understand my colleagues’ double negative that “[t]he Secretary did not argue, either in the district court or on appeal, . . . that tactile features would not enable the visually impaired to denominate bills.” Maj. Op. at 31. In his opening brief, the Secretary cited a study by the National Academy of Sciences for the proposition that “banknote size that differs with denomination is the only [alteration] applicable to the needs of blind people.” Br. for Appellant at 8. The Secretary went on to argue that embossed dot patterns have “insufficient durability to approximate the average length of time required for notes to remain in circulation.” Id. at 9. He also noted that a study of microperforation by the Bureau of Engraving and Printing found that “individuals with disabilities could not identify the perforation patterns with sufficient accuracy for currency
4 There are approximately 7,000,000 food and beverage vending machines in the United States; by one estimate, it would cost $3.5 billion to retool or replace these machines if the size of different bills were progressively increased.

4
denomination, and analysis also showed that this feature was unlikely to be effective or durable because the perforation pattern could be altered or simulated easily.” Id. at 9-10 (emphasis added). And the Secretary’s reply brief reproduced a study showing that blind testers could not identify 33.8% of Canadian banknotes that had circulated for a year. Reply Br. for Appellant at 21. The same study found a general problem with tactile features: “Diabetes is one of the leading causes of vision loss and is often accompanied by a loss of sensitivity in the fingertips.” Addendum to Reply Br. for Appellant at 5.5 The Secretary made these arguments before the district court as well.6 In addition, the Secretary offered evidence to the district court that the ink of an embossed numeral would rapidly rub off during circulation, making this feature useless to the blind. Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue ¶ 63 (Aug. 31, 2005).
In short, my colleagues have not identified a single accommodation that is undisputedly “reasonable, effective, and feasible,” Maj. Op. at 15, and for which there is no material issue about an undue burden. They do not know what if anything should be implemented as an accommodation and neither does the American Council of the Blind, the Treasury,
5 Even if the Secretary had not disputed on appeal the effectiveness of various measures, it is absurd to suggest – as the majority does – that the parties’ arguments on the merits somehow constrain our discretion whether to hear the appeal at all.
6 E.g., Defendant’s Responses to Plaintiffs’ Third and Fourth Sets of Interrogatories and First Request for Admissions 1-2 (Aug. 31, 2005). The effectiveness of a foil feature also is uncertain. The 5, 10, and 20 euro banknotes have a foil feature that differs in shape and position from the feature on the 50, 100, 200, and 500 euro banknotes. But no evidence showed that such a feature would enable the blind to distinguish each denomination of American currency.

5
the district court, or the National Federation of the Blind (who supports Treasury).7 Yet my colleagues affirm the grant of summary judgment against the Secretary. In doing so they state that because the Secretary did not show that every possible measure would impose an undue burden, he is barred on remand from showing that any particular measure would have this effect. Maj. Op. at 29-30, 33. This cannot possibly be correct. The district court did not believe its ruling meant any such thing and neither did the plaintiff, as its statements quoted earlier demonstrate. Further evidentiary proceedings necessarily must be held before this case can be brought to an end. The case is therefore not even close to being in the proper shape for reasoned appellate decision-making. When faced with “a question of law which turns on a thorough examination of the facts,” we should be “reluctant to rely on what may turn out to be an incomplete record to clarify legal doctrine for the district court’s guidance.” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 866 (2d Cir. 1996).
7 During discovery, the Council’s complaint explicitly sought only two tactile changes to the currency: “denomination numerals indicated by Braille symbols and raised printing on the banknote itself” and “varying the length [and] height . . . of banknotes.” Complaint for Declaratory and Injunctive Relief 17 (May 3, 2002). The complaint said nothing about microperforation, foil, electronic currency readers, or raised intaglio printing. Although the parties may have mentioned these possible changes during discovery, the Council did not add them to the complaint until three and a half years into the case, after discovery closed. First Amended Complaint for Declaratory and Injunctive Relief ¶ 124 (Nov. 23, 2005).

 
 Am. Council of the Blind v. Paulson
United States Court of Appeals for the District of Columbia Circuit February 27, 2007, Filed No. 06-8003

Reporter: 2007 U.S. App. LEXIS 6680 The American Council of the Blind, et al., Respondents v. Henry M. Paulson, Jr., Secretary of the Treasury, Petitioner
Prior History: [*1] 02ms00864. Am. Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 2006 U.S. Dist. LEXIS 86610 (D.D.C., 2006)
Judges: BEFORE: Sentelle, * Rogers, and Garland, Circuit Judges.
Opinion

Upon consideration of the petition for permission to take interlocutory appeal, the opposition thereto, and the reply, it is
ORDERED that the petition for permission to appeal be referred to the merits panel to which this case is assigned. The parties are directed to address in their briefs the arguments presented in the petition for permission to appeal rather than incorporate those arguments by reference. The parties are also to address in their briefs the underlying merits of the district court's December 1, 2006 Amended Memorandum Order.

ORDER

The Clerk is directed to transfer this case (06-8003) to the court's general docket as 07-5063.

Per Curiam

* Judge Sentelle would grant the petition for permission to appeal.