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

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).

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. 
5

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.

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
6

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).

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
7

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 35-

15. 

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

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),

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.
9

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.

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
10

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. 

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,ASTUDY 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
11

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.

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
12

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). 

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
13

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.
14

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
15

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
16

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,

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
17

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.

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
18

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

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
19

ASSISTANCE MANUAL II-3.3000 (1993). 

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: 
20

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
21

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.

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
22

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
23

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. 
24

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

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. 

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.
26

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. 

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.
27

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. 

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
28

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.

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
29

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.

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
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

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

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
32

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. 

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.
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

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).

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
3

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.

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

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.

6E.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.

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

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).

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).