FOR THE
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
(No. 02ms00864)
Jonathan F. Cohn, Deputy Assistant Attorney General,
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.
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
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
Congress expressly intended the Rehabilitation Act to
ensure that members of the disabled community could live 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
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 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
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
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
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.”
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 [
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).
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.”
In 1995, the National Research Council of the National
FEATURES FOR VISUALLY IMPAIRED PEOPLE 1 (Nat’l Acad. of
Sciences 1995) (“1995 NRC REPORT”).
Age-related diseases constitute the leading causes of visual impairment in the
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.
Of the 171 authorities issuing currency identified by the
1995 NRC Report, only the
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.
5 After the 1995 NRC
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.
The Secretary has acknowledged that the physical design
of
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.
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.
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.
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.
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
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.
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).
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.”
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.
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.”
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
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 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
12 See Davis, 442
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, 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
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
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
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
TITLE II TECHNICAL
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.
handicap.”
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;
Bd. of Trs. for the
Bd. of Trs. for the
ASSISTANCE MANUAL II-3.3000 (1993).
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
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
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
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. visually impaired appears to
have been a result of the type of “thoughtlessness and indifference,” Choate,
469
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
First, the Secretary contends that because the visually impaired have developed coping mechanisms for using paper currency, whether by relying on third parties, purchasing 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.
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
Second, the Secretary contends that the visually impaired
have not been denied meaningful access to
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 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.
In Bird v.
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
First, the Secretary misconstrues section 504, contending
that the district court improperly validated the most expensive accommodation.
See Appellant’s
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
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.
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
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
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.
stated that it “expects to
redesign
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
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.
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.”
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’
NAMA at 14-16. The Secretary does not suggest that third-party 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 compliance with
section 504.
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
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.
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
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 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
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).
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.”
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
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.”
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.
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).