[blindlaw] Judg Roberts' Opinion

[Rakesh Chand]

Very interesting Angie,

Many, many thanks it's indeed very long.

Have a great afternoon!

Raks

----- Original Message ----- 
From: "Angie Matney" <angie at mpmail.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Thursday, November 30, 2006 1:22 AM
Subject: [blindlaw] Judg Roberts' Opinion


> This is long, but I found it interesting, particularly the discussion of 
> "meaningful access" and how it evolves over time, not only based on 
> technology but on societal expectations. This is taken from a pdf, so I 
> apologize if notes seem out
> of order, etc.
>
>
>
> UNITED STATES DISTRICT COURT
> FOR THE DISTRICT OF COLUMBIA
> Table with 3 columns and 3 rowsAMERICAN COUNCIL OF THE BLIND,
> et al., :
> :
> : Plaintiffs, :
> : v. : Civil Action No. 02-0864 (JR)Table end:
> Henry M. Paulson, Jr., Secretary:
> of the Treasury :
>
> Defendant.
> MEMORANDUM ORDER
> American Council of the Blind is a national advocacy
> group for the visually impaired. In this suit, the Council and a
> number of blind and visually impaired individuals allege that the
> Department of Treasury violates section 504 of the Rehabilitation
> Act, 29 U.S.C. § 794, by its repeated and continuing failures to
> design and issue paper currency that is readily distinguishable
> to blind and visually impaired people. The Councils amended
> complaint seeks a declaratory judgment to that effect and an
> order mandating the creation and implementation of a corrective
> action plan. I denied earlier defense motions for summary
> judgment [#8] and to dismiss [#15], 311 F. Supp. 2d. 86 (D.D.C.
> 2004). After a period of discovery, the Secretary has renewed
> his motion to dismiss or for summary judgment [#33], and
> plaintiffs have moved for summary judgment [#35].1
> 1The Secretarys motion asks me to dismiss or strike two of the
> plaintiffs prayers for relief: the inclusion of specific features in a
> redesign of the currency, and a redesign of the $1 bill. Plaintiffs 
> amended
> Background
> Some 937,000 Americans are legally blind, meaning that
> the visual acuity of the better-seeing eye, when corrected, is no
> better than 20/200. An additional 2,361,000 Americans are
> considered 
low vision
 - the better-seeing eye, when corrected,
> is no better than 20/40. National Eye Institute Statistics,
> [#35-46, at 2]. Individuals with low vision are unable, among
> other things, to read the regular print on a newspaper. National
> Academy of Sciences, Currency Features for Visually Impaired
> People, [#35-5, at 14] (
NAS Study
).
> Most people with low vision, and all blind people, are
> incapable of looking at American currency and distinguishing one
> denomination from another. In order to know whether the bill in
> her hand is worth five dollars or fifty, a blind person must ask
> someone else for help or use a machine that can identify the
> denomination and speak it out loud. Plaintiff Patrick Sheehan,
> who has no right eye vision and left eye vision of 20/450, is
> capable of distinguishing between banknotes in ideal lighting
> conditions. Usually, however, he identifies bills using a closed
> circuit television system that magnifies them. Plaintiff Otis
> Stephens is legally blind, as is Melanie Brunson, the Councils
> their complaint after the governments motion and no longer seek such 
> relief.
> Those aspects of the governments motion are accordingly moot.
> - 2 -
> Rule 30(b)(6) designee. They rely on sighted people to identify
> paper money for them.
> Visually impaired Americans have developed a variety of
> methods for keeping track of the value of their paper money after
> their bills have been properly identified for them. Ms. Brunson
> folds her currency into different shapes: she keeps $1 bills
> straight; she folds $5 bills in half left-to-right, $10 bills in
> half top-to-bottom, and $20 bills in quarters. Dep. of Melanie
> Brunson, [#33-2, at 32]. Other blind individuals keep different
> denominations in separate parts or pockets of their wallets or
> purses.
> There is no authoritative data on the frequency with
> which the visually impaired use paper money. Dr. Stephens
> estimates that, over a two-month period, he makes approximately
> 145 purchases, of which roughly half are made using paper
> currency. Dep. of Otis Stephens, [#33-3, at 107]. Mr. Sheehen
> uses currency with similar frequency. Dep. of Patrick Sheehen,
> [#33-4, at 96]. Ms. Brunson, however, makes purchases using
> currency only about ten times a month. Dep. of Melanie Brunson
> at 60. When they do make purchases, Dr. Stephens and Ms. Brunson
> usually select bills that they have folded and ask the cashier
> for verbal confirmation of the denomination before paying. When
> receiving change after a transaction, Dr. Stephens asks the
> cashier to verbally identify each bill, so that he can fold it
> - 3 -
> properly. Dep. of Otis Stephens at 85. Similarly, Ms. Brunson
> asks cashiers to 
separate the bills for me and give me the bills
> one at a time so that I can fold them.
 Dep. of Melanie Brunson
> at 54.
> Unable to identify the value of paper money without
> help from others, blind and low vision individuals are always at
> risk of being cheated. The frequency of such acts against blind
> and low vision individuals is impossible to measure, because
> victims may not know that they have been deceived unless someone
> tells them. Ms. Brunson, Dr. Stephens, and Mr. Sheehan could
> recall only a few instances when they learned that they had been
> defrauded.2 It is reasonable to assume, however, that deliberate
> fraud or accidental shortchanging may go unnoticed for some time,
> and that some instances may never be noticed.
> Currency in Other Countries
> Of the more than 180 countries that issue paper
>
> currency, only the United States prints bills that are identical
> in size and color in all their denominations. NAS Study at 9,
> 101. More than 100 of the other issuers vary their bills in size
> 2For example, Ms. Brunson recalled one occasion in which a store clerk
> informed her she was being given a $20 bill. She later learned, when
> attempting to make another purchase, that this bill was actually worth 
> only
> $5. Dep. of Melanie Brunson at 56-57.
>
> Not all issuers of currency are independent sovereign countries. For
> example, Northern Ireland, England, and Scotland all issue banknotes that 
> are
> exchangeable throughout the United Kingdom. NAS Study at 104.
> - 4 -
> according to denomination, and every other issuer includes at
> least some features that help the visually impaired. See
> generally, NAS Study at 101-12.
> The Euro varies in size based on denomination: the
> greater the value of the note, the greater the length. The i5,
> i10, i20, i50, and i100 notes also vary in height. Euro Vision,
> Understanding Euro Notes and Coins, a Guide for People with Poor
> Vision, [#35-26, at 5]. Euros also possess tactile features:
> each bill includes a large, raised numeral designed to be
> perceptible to touch, at least when the banknotes are new, id. at
> 4, and a foil feature that can be identified by touch; the foil
> feature on the smaller notes  i5, i10, i20  is of a different
> shape and in a different location than those on the larger ones.
> Id. at 6.
> The Swiss Franc contains intaglio digits and a
> perforated numeral that can be identified by touch. Copy of
> Swiss Bank Note, [#35-41]. Japan, in a new design for the Yen,
> has incorporated a tactile feature in the 10,000, 5,000 and
> 1,000 notes, different for each note, that has a rougher texture
> than the rest of the bill. Security Features of the New Bank of
> Japan Notes, [#35-40].
> The Canadian Dollar also contains tactile features. On
> the upper right corner on the face of each bill is a series of
> raised symbols separated by a smooth surface, which differ
> - 5 -
> according to denomination. The $5 note has one raised symbol,
> the $10 note has two such symbols, and so forth. The Bank of
> Canada also provides (free to blind and low vision individuals)
> an electronic hand-held note reader. Bank of Canada,
> Accessibility Features, [#35-28].
> Australias dollars differ in color and size. English
> Pound notes vary in color and size and contain tactile symbols.
> Chinese currency differs in color and possesses a tactile symbol,
> as does the currency in Argentina and Israel. Saudi Arabias
> currency varies in color and size. NAS Study at 106-112.
> U.S. Currency
> The Secretarys statutory responsibility for the design
> and production of U.S. currency, 12 U.S.C § 418, has been
> delegated to the Bureau of Engraving and Printing (BEP). The BEP
> is not financed by appropriations from Congress, but by a
> revolving fund that is replenished by the sale of its products -
> currency and postage stamps - to other federal entities. In
> 2004, the BEP earned revenues of $525 million on the sale of 8.8
> billion currency notes to the Federal Reserve and 6.1 billion
> postage stamps to the U.S. Postal Service. Bureau of Engraving
> and Printing, Chief Financial Officer Performance and
> Accountability Report (2004), [#35-42, at iii].
> Most production of new currency is to replace worn out
> bills. Decl. of Thomas Ferguson, (August 28, 2002) [#8-2, at
> - 6 -
> Ý 15]. The Federal Reserve withdraws tens of millions of bank
> notes from circulation each day: if a banknote is deemed unfit
> for recirculation, or if its denomination or authenticity cannot
> be verified, it is destroyed. The useful life of bills varies by
> denomination. The average life for the $1 bill is twenty-one
> months, whereas the $100 note lasts some eighty-nine months.
> Frequently Asked Questions, Federal Reserve Board, [#35-44].
> Approximately half of all BEP production is of $1 bills. Dec. of
> Thomas Ferguson [#8-2, at Ý 5].
> On several occasions, the House of Representatives has
> expressed interest in changing U.S. currency to accommodate the
> visually impaired. Congressman Pete Stark introduced bills in
> 1979, 1981, and 1983 that would have required currency to be
> 
printed in a manner which enables an individual who is blind to
> determine the denomination of each such note.
 H.R. 6027, 96th
> Cong. (1979); H.R. 3656, 97th Cong. (1981); H.R. 2666, 98th Cong.
> (1983). In 1991, Congressman Joseph P. Kolter introduced a bill
> that would have required the Federal Reserve System to 
develop a
> design for Federal Reserve notes in the denominations of $5, $10,
> $20, $50, and $100, and a method for producing such notes, that
> includes the designation of the denomination in braille on the
> face of the notes.
 H.R. 2160, 102nd Cong. (1991). In 1997,
> finding that 
electronic means of bill identification will always
> be more fallible than purely tactile means,
 the House of
> - 7 -
> Representatives 
strongly encourage[d] the Secretary of the
> Treasury and the Bureau of Engraving and Printing to incorporate
> cost-effective, tactile features into the design changes, thereby
> including the blind and visually impaired community in
> independent currency usage.
 H.R. Res. 122, 105th Cong. (1997).
> In 1983, at the request of Congressman Edward R.
> Roybal, chairman of the House Select Committee on Aging, the BEP
> conducted a formal study of this issue. A Study of Mechanisms
> for the Denomination of Currency by the Blind or Visually
> Impaired, (Aug. 24, 1983), [#35-4] (
1983 Study
). That study
> found that 
the most widely useful currency design change would
> be to produce [notes] in a different size for each denomination,

> but that 
the effects of such a change on broad and diverse
> segments of the population would be monumental.
 Id. at 6.4 The
> study also found that 
almost as broad a segment of the sight
> impaired population would benefit from use of an electronic
> device to audibly denominate bank notes as from sized currency,

> and that given the greater cost of sizing currency, electronic
> currency readers should be developed to assist the visually
> impaired. Id. at 16.
> Electronic note readers are available, but many models
> are considered slow, unreliable and expensive. NAS Study at 25.
> 4This finding of 
monumental
 effect, repeated verbatim at 17, is
> unquantified and unexplained.
> - 8 -
> The government asserts that one such device, the Note Teller 2,
> is effective. The Note Teller 2 is approximately six inches
> long, three inches wide and one inch high, weighing approximately
> seven ounces. Decl. of Julia Wilson [#33-6, at Ý 2]. Users
> insert bills into the machine and after approximately two
> seconds, a human voice, says either a number - 
one,
 
five,

> ten,
 etc., or 
cannot read.
 Id. at Ý 4. The Note Teller 2
> retails for $270. Id. at Ý 8. In May 2004, the BEP solicited
> proposals for the development of a pocket-size currency reader
> that could be mass produced at a target retail price of $35 or
> less. In September 2004, BEP awarded $50,000 to Mnemonics, Inc.
> to develop these currency readers. Def.s Resp. to Interrog. 13.
> Mnemonics has committed to begin marketing the device within
> three years after BEP accepts the prototype. A prototype was due
> from Mnemonics on September 30, 2005. Supp. Decl. of Thomas
> Ferguson, (Aug. 30, 2005) [#33-7, at Ý 15]. The record does not
> reveal whether this prototype was delivered by the deadline or
> whether it has been accepted by the BEP.
> In 1995, the National Academy of Sciences issued a
> comprehensive report entitled 
Currency Features for Visually
> Impaired People.
 One of the studys findings was:
> An important aspect of a person's full participation in
> today's society is being able to conveniently and
> confidentially exchange currency in everyday
> transactions, as when using public transportation or
> making purchases. U.S. citizens with low vision
> experience a uniquely difficult task in that U.S.
> - 9 -
> banknotes are remarkably uniform in size, color, and
> general design. The banknotes provide no basis for
> denominating by blind persons.
> NAS Study at 1. The study recommended three features that could
> be incorporated into U.S. banknotes without significant further
> research: (1) changing the size of banknotes to correspond with
> denomination; (2) increasing the size and contrast of a
> banknotes numerals; and (3) varying banknote color according to
> denomination. Id. at 4. The report further recommended that the
> BEP undertake 
high priority
 research to determine 
optimum
> dimensions, optical contrast, location, colors, physical size
 to
> implement these changes. Id. at 65.
> Major changes were made to U.S. currency in 1996 and
> 2004  for the first time since 1929. Coming as they did after
> the House bills and the BEP and NAS studies, the 1996 redesign
> and the 2004 redesign presented 
an opportunity to introduce
> features into the design that will make U.S. banknotes more
> readily usable by visually disabled people.
 NAS Study at 2.
> The 1996 redesign did add two features intended to
> accommodate the visually impaired: a single larger numeral,
> placed on one side of the banknote at slightly less than twenty
> percent of the height of the banknote, to 
facilitate recognition
> by persons with low vision,
 and an infrared feature, to
> 
facilitate the development of a new hand-held currency reader
> for the blind.
 Supp. Decl. of Thomas Ferguson, (Aug. 30, 2005)
> - 10 -
> [#33-7, at Ý 4]. The changes fell well short of the NAS
> recommendations, however; the NAS report had recommended a
> denomination numeral forty to sixty percent of banknote height,
> printed on both sides, with either white ink on a black
> background or black ink on a white background. NAS Study at 46.
> As far as the BEP was concerned, the primary purpose of the
> redesigns was to make American currency less susceptible to
> counterfeiting. Mot. Hrg Tr. (May 4, 2006) at 25.5
> The 1996 redesign cost the BEP approximately $34
> million, of which $26 million was devoted to funding a public
> education campaign.6 The redesign further increased annual costs
> by $31 million. Supp. Dec. of Thomas Ferguson (Aug. 30,
> 2005)[#33-7, at Ý 5]. The total initial cost for the 2004
> redesign was $113,037,205. This included approximately $38
> million for the purchase of six new presses and $50 million for a
> 5The 1996 redesign introduced several new security features, including
> watermark portraits, an embedded security thread, micro-printed words, and
> color shifting ink. Supp. Decl. Of Thomas Ferguson, (Aug. 30, 2005) 
> [#33-7,
> at Ý 4]. The 2004 redesign added small yellow denomination numerals on the
> back of each note, a more complex design and additional background colors 
> to
> the $10, $20, $50, and $100 bills. Id. at Ý 6.
> 6The total costs of the 1996 redesign also included $1.5 million for
> research, consultation and design, $4.5 million on engraving and 
> manufacturing
> new printing plants, $1.1 million on inspection equipment, $200,000 for 
> in-
> house contracts and $90,000 on site preparation.
> - 11 -
> public education campaign.7 In addition, the 2004 redesign
> required over $25 million in increased annual costs. Id. at Ý 7.
> Jurisdiction
> In its renewed motion to dismiss, the government
> interposes a sovereign immunity defense for the first time,
> invoking Lane v. Pena, 518 U.S. 187 (1996), in which the Supreme
> Court found that the United States had not waived sovereign
> immunity in a suit alleging a violation of § 504(a) of the
> Rehabilitation Act. That is the code section upon which these
> plaintiffs rely. It provides, in relevant part:
> No otherwise qualified individual with a disability in
> the United States, as defined in section 706 (20) of
> this title, shall, solely by reason of his or her
> disability, be excluded from the participation in, be
> denied the benefits of, or be subjected to
>
> discrimination under any program or activity receiving
> Federal financial assistance or under any program or
> activity conducted by any Executive agency or by the
> United States Postal Service.
> 29 U.S.C. § 794. Lane brought suit after he was discharged from
> the U.S. Merchant Marine Academy for having diabetes. The
> district court granted summary judgment and ordered him
> reinstated as a cadet, but it refused to award compensatory
> 7The total cost of the 2004 redesign also included $6.1 million for site
> preparation, $13.1 million for research, consultation and design, and $5
> million to manufacture new printing plates.
> 8It appears to be undisputed, despite the awkward 
fit
 of the language,
> that the design, production and issuance of currency is a 
program or
> activity
 under the Rehabilitation Act. See Def.s Renewed Mot. [#33, at 
> 7,
> n.5]; Mem. Op. [#19, at 4, n.1].
> - 12 -
> damages, finding that the government had not waived sovereign
> immunity for damages claims. Lane appealed, arguing that
> sovereign immunity had been waived by § 505(a)(2) of the Act,
> which provides: 
The remedies, procedures, and rights set forth
> in title VI of the Civil Rights Act of 1964 shall be available to
> any person aggrieved by any act or failure to act by any
> recipient of Federal assistance or Federal provider of such
> assistance.
 He argued that, because § 505(a)(2) incorporates
> 
the remedies, procedures and rights
 of Title VI, and because
> Title VI allows suits for monetary damages, the United States had
> waived its sovereign immunity. The Supreme Court disagreed,
> finding that § 505(a)(2) contained an 
unequivocally expressed

> waiver of sovereign immunity only for violations by 
any
> recipient of Federal assistance or Federal provider of such
> assistance.
 Section 505(a)(2) does not waive sovereign
> immunity, the Court found, for the much broader group of
> violations occurring 
under any program or activity
 authorized
> in § 504(a).
> The present case, like Lane, is based on the 
program
> or activity
 language of the Rehabilitation Act, but the
> governments reliance on Lane misses the mark. These plaintiffs
> seek only injunctive relief. Injunctive relief was awarded by
> the district court in Lane, was not challenged by the government,
> and was not disturbed by the Supreme Court. Lane v. Pena, 518
> - 13 -
> U.S. 187, 190 (1996). The Courts reasoning in Lane indeed
> supports the view that injunctive relief is available against the
> sovereign under this provision. To explain its holding that
> sovereign immunity was not waived in § 505(a)(2) of the
> Rehabilitation Act, the Court contrasted that provision with
> § 505(b), which contains a 
clear waiver
 of sovereign immunity
> for claims of attorneys fees. As plaintiffs point out, there
> would be no purpose in crafting a provision allowing attorney
> fees unless the statute contemplates awards of declaratory and
> injunctive relief.
> Analysis
> In Southeastern Cmty. Coll. v. Davis, 442 U.S. 397
> (1979), and Alexander v. Choate, 469 U.S. 287 (1985), the Supreme
> Court identified two countervailing concerns that are to inform a
> courts interpretation of § 504 of the Rehabilitation Act:
> 
(1) effectuation of the statute's objectives of assisting the
> handicapped; and (2) the need to impose reasonable boundaries in
> accomplishing this purpose.
 Three Rivers Center for Independent
> Living v. Housing Authority of City, 382 F.3d 412, 427 (3d Cir.
> 2004)(citing Choate, 469 U.S. at 299). The Court struck a
> balance between these two considerations by requiring that
> individuals have 
meaningful access
 to the benefits of programs
> or activities provided by grantees of federal assistance.
> Choate, 469 U.S. at 300. Plaintiffs are not entitled, however,
> - 14 -
> to perfect access, or to remedies 
specially tailored
 for their
> circumstances. Id. at 303. Even where plaintiffs do not have
> meaningful access, moreover, the Rehabilitation Act entitles them
> only to such accommodations as are 
reasonable.
 Id. at 301.
> Accommodations are not reasonable if they would entail either
> 
undue financial and administrative burdens
 or a 
fundamental
> alteration in the nature of a program.
 Davis, 442 U.S. at 410,
> 412. The cross-motions for summary judgment in this case address
> the two core issues that the Davis and Choate cases present,
> namely, (1) whether blind and visually impaired plaintiffs have
> 
meaningful access
 to U.S. currency, and (2) if not, whether the
> acts necessary to achieve meaningful access would impose an
> 
undue burden
 on the government.
> Meaningful Access
> The question of what is 
meaningful access
 in a
> specific case is ultimately one of law, but the legal precedents
> available to the parties and to the court are unhelpful because
> they are so few, and so fact-bound. In Jones v. City of Monroe,
> 341 F.3d 474 (6th Cir. 2003), a municipal parking lot provided
> free all-day parking, but the lot was two blocks from plaintiffs
> office. Plaintiff, who had multiple sclerosis and used a
> wheelchair, sued under the Rehabilitation Act for a free parking
> space adjacent to her office building. The Sixth Circuit
> rejected her claim that she had been denied meaningful access to
> - 15 -
> the benefits of free parking. Reasoning that 
equal results from
> the provision of the benefit. . . are not guaranteed,
 id. at 479
> (quoting Choate, 469 U.S. at 305), the court found that the
> plaintiff had 
access to the service offered by Monroe - free
> downtown parking in specific locations. She does not have a
> right to free downtown parking that allows her access to her
> destination of choice.
 City of Monroe, 341 F.3d at 479. In
> United States v. Board of Trustees for University of Alabama, 908
> F.2d 740 (11th Cir. 1990), federal regulations requiring the
> provision of sign-language interpreters for the hearing impaired
> were upheld, because, 
in the case of a deaf student . . . all
> access to the benefit of some courses is eliminated when no sign-
> language interpreter is present.
 Id. at 748. Citing Davis, the
> Eleventh Circuit found that 
if the provision of interpreters
> when necessary would not impose an undue financial burden on UAB,
> then it would be a reasonable accommodation. . . .
 Id.
> Plaintiffs in the instant case align themselves with
> the deaf students in Board of Trustees, arguing that they have
> 
no access
 to currency because they have no way to distinguish
> one bill from another without a scanning device or help from a
> sighted person. 
No access
 overstates the case, to be sure 
> the visually impaired have developed an impressive array of
> coping mechanisms, and they do make use of paper money  but
> plaintiffs do not need to prove 
no access
 to prevail. Like
> - 16 -
> deaf students who can have real access to a lecture only with an
> interpreter or a realtime transcript, blind or visually impaired
> people cannot make effective use of American currency without
> help. There was a time when disabled people had no choice but to
> ask for help  to rely on the 
kindness of strangers.
 It was
> thought to be their lot. Blind people had to ask strangers to
> push elevator buttons for them. People in wheelchairs needed Boy
> Scouts to help them over curbs and up stairs. We have evolved,
> however, and Congress has made our evolution official, by
> enacting the Rehabilitation Act, whose stated purpose is 
to
> empower individuals with disabilities to maximize employment,
> economic self-sufficiency, independence, and inclusion and
> integration into society.
 29 U.S.C. § 701(b)(emphasis added).
> It can no longer be successfully argued that a blind person has
> 
meaningful access
 to currency if she cannot accurately identify
> paper money without assistance.
> Undue Burden
> Plaintiffs who do not have meaningful access are
> entitled only to 
reasonable accommodations.
 Choate, 469 U.S.
> at 301. Accommodations are not reasonable if they would entail
> either 
undue financial and administrative burdens
 or a
> 
fundamental alteration in the nature of a program.
 Davis, 442
> U.S. at 410, 412.
> - 17 -
> The government submits that the burden-shifting
> approach outlined in U.S. Airways, Inc. v. Barnett, 535 U.S. 391
> (2002), should be applied where plaintiffs seek an accommodation
> under the Rehabilitation Act. Under Barnett, plaintiffs must
> first show that a requested accommodation would be 
reasonable on
> its face.
 The burden then shifts to defendant to show 
special
> (typically case-specific) circumstances that demonstrate undue
> hardship in the particular circumstances.
 Id. at 401-02.
> Plaintiffs rightly point out the lack of authority for applying
> this method outside Barnetts employment-discrimination context,
> but it is as good as any method of shifting the balance.
> Plaintiffs have proposed several possible changes to
> U.S. currency: dimensions varied by denomination, embossed dots,
> foil, micro-perforations, and raised intaglio printing.9 The
> fact that each of these features is currently used in other
> currencies suggests that, at least on the face of things, such
> accommodations are reasonable, but the government denies it,
> pointing to a 
host of factors
 that it says distinguish U.S.
> currency from other paper money. Def.s Mem. Oppn. [#43, at
> 10]. None of these factors demonstrates undue hardship, however.
> 9The parties have also debated design changes that would accommodate
> plaintiffs who have low vision, but who are not blind. These include:
> increasing the size of the numeral, altering background colors, and adding
> geometric patterns. While such changes would no doubt be a welcome
> improvement for many people, any solution that accommodates some, but not 
> all,
> individuals with impaired vision is, at best, a half-measure.
> - 18 -
> First, the government suggests that any changes to the
> currency could interfere with the BEPs statutory mandate to
> guard against counterfeiting, id., and warns that the increasing
> sophistication of counterfeiting efforts would 
significantly
> complicate any effort to add a tactile feature to U.S. currency.

> Decl. of Thomas Ferguson in Resp. to Pls. Mot. for Summ. J,
> (October 25, 2005) [#43-2, at Ý 3]. This suggestion is
> unsupported argument, and it is utterly unpersuasive. The
> government offers no reason to think that the addition of a
> tactile feature would render U.S. currency more vulnerable to
> counterfeiting, and indeed the use of foil and raised print on
> the Euro is considered a security feature, as is the micro-
> perforated number on a Swiss banknote. See The Euro, Our Money,
> [#60-2], European Central Bank - Security Features, [#60-3], and
> Swiss National Bank - Security Features, [#60-4].
> The government also contends that any 
drastic or
> sudden
 changes to the currency could undermine international
> recognition and acceptance of U.S. currency 
as a common medium
> of exchange throughout the world.
 Decl. of Thomas Ferguson in
> Resp. to Pls. Mot. for Summ. J, (October 25, 2005) [#43-2, at
> Ý 2]. This contention is not only unsupported, but, on its face,
> is fairly absurd. If the government has any evidence that U.S.
> currency is accepted throughout the world because it is a
> - 19 -
> 
greenback,
 rather than because of the strength of the American
> economy, it has not placed that evidence in the record.
> Lastly, the government asserts, more plausibly, that
> each of the proposed changes might decrease the life span of
> American currency, requiring more frequent replacement.
> Increasing the size of currency, for example, might cause people
> to fold bills more frequently, 
thus increasing the wear on those
> denominations. . . and increasing expenditures to replace worn
> currency.
 Id. at Ý 5.10 Such costs 
cannot be determined.

> Def.s Resp. To Interrogs. 5, 6 [#35-11].11 In 2001, the
> Canadian Bank Note Company (CBNC) conducted preliminary tests on
> ten U.S. banknotes to determine the feasibility of adding tactile
> features such as those used in Canadian currency. The parties
> disagree about whether those tests were persuasive, compare Decl.
> of H.H. Holton [#35-45, at ÝÝ 8-9], with Decl. of Thomas Ferguson
> in Resp. to Pls. Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at
> 10The record contains little information about the effect of currency
> changes on third parties, and what information there is is inconclusive. 
> The
> National Automatic Merchandising Association (NAMA), as amicus curiae, 
> argues
> that changes to U.S. currency impact the $30 billion vending machine 
> industry.
> A small survey of NAMA members (eight respondents) reveals mixed levels of
> concern about the economic impact of the proposed changes, however. The
> surveyed firms agreed that changing the width of bills would be the most
> costly alteration. Some firms estimated major costs associated with any
> change, whereas other respondents, particularly those that conduct 
> business
> outside the U.S., stated that changes would not be difficult to implement.
> See Mem. of Natl Automatic Merchandising Assn [#39].
> 11Government counsels oral estimate of cost increase that would result
> from a reduction in the useful life of each bill, Mot. Hrg Tr. (May 4, 
> 2006)
> at 26-27, is unsupported in the record.
> - 20 -
> Ý 10], but they appear to agree that a test of ten notes is not
> statistically significant. Id. The BEP has chosen not to pursue
> further testing, because the results of the initial test were
> 
sufficiently disappointing that pursuing inclusion of the
> proposed feature on U.S. currency was not considered worthwhile,

> and because security considerations for transferring 1,000 bank
> notes to a foreign location 
make the preliminary testing of only
> small quantities more practical.
 Decl. of Thomas Ferguson in
> Resp. to Pls. Mot. for Summ. J. (Oct. 25, 2005) [#43-2, at ÝÝ 9-
> 10]. Neither explanation is compelling. The Federal Reserve
> distributes a 
large
 amount of currency to foreign banks each
> year, see Federal Reserve Board, Currency and Coin Services,
> [#60-14], and the results of a statistically insignificant test,
> no matter how disappointing, should not serve as the basis for a
> decision not to conduct a statistically significant one. Lacking
> any statistically significant evidence from the government, I
> cannot find that a hypothetical reduction in the life span of
> bank notes constitutes an undue burden.
> Moreover, the government has tacitly conceded at least
> the feasibility of each proposed feature, except raised intaglio
> printing, by providing cost estimates.12 Production of bills of
> 12Defendants initial cost estimates in this matter were startling, and
> ultimately misleading. Defendant first asserted that the changes sought by
> plaintiffs would require an initial investment of $26 to $101 million 
> dollars
> more than its total budget for 2001, and an annual increase in expenses of
> sixty-five to seventy-nine percent. See Def.s Mem. Oppn. [#43, at 24];
> - 21 -
> different sizes, the most expensive option, would require an
> initial investment of $178 million for new printing presses,
> inspection and verification machines, numbering machines, and
> processing equipment, and $37-50 million for new printing plates
> for each new bill. See Def.'s Resp. to Pls. Second Req. for
> Produc. of Documents [#43-3]. In addition to these initial
> costs, the BEP foresees increased annual costs of approximately
> $30 million to acquire additional paper and ink and $22 million
> to meet increased labor needs. Id. An embossed feature on each
> bill, such as a raised numeral, would have initial capital costs
> of $45.5 million and additional annual costs of approximately $16
> million. Supp. Decl. of Thomas Ferguson (Aug. 30, 2005), [#33-7,
> at Ý 9]. Perforating (punching a hole in) each note would
> require initial costs of $75 million, with additional annual
> costs of approximately $9 million. Id. at Ý 10. A foil feature
> would require an initial expenditure of $51.5 million with annual
> costs of approximately $15 million. Id. at Ý 14. In addition,
> the government notes, any change would require worldwide public
> education to ensure public acceptance of the new bills, which
> Def.s Reply [#61, at 16]. This estimate appears to have been calculated 
> to
> include all of the changes proposed by plaintiffs, however. Just one such
> tactile feature would suffice. See Pls. Surreply [#67, at 15].
> - 22 -
> would cost between $70 to $90 million. Decl. of Thomas Ferguson
> (Aug. 28, 2002) [#33-5, at Ý 48].13
> These cost estimates are the heart of the governments
> undue burden argument. The government asserts that any of the
> accommodations proposed by plaintiffs would force it to undertake
> the kind of 
undue financial and administrative burdens"
> precluded by Supreme Court precedent.
> Any change to the design of U.S. currency would
> undoubtedly require a substantial investment of labor, time, and
> money devoted to, among other things, research, consultation,
> planning, the creation of new plates, the purchase, installation,
> and operation of new equipment, and increased maintenance and
> production costs. Yet the governments own estimate of such
> costs would represent only a small fraction of BEPs annual
> expenditures. Over the past ten years  and two redesigns  the
> BEP has spent $4.2 billion on currency production, an average of
> $420 million per year. Def.s Resp. to Interrog. 1 [#35-11].
> Over the same ten year period, the addition of an embossed
> numeral - at an initial cost of $45.5 million and annual costs of
> 13
> All cost estimates were provided by the government. See Def.'s Resp.
> to Pls. Second Req. for Produc. of Documents; Supp. Decl. of Thomas 
> Ferguson
> (Aug. 30, 2005). These figures may be inflated, however, due to the
> governments inclusion of the cost of modifying the one dollar bill. See
> Decl. of Thomas Ferguson in Resp. to Pls. Mot. for Summ. J. (Oct. 25, 
> 2005)
> [#43-2, at Ý 11]. Plaintiffs do not seek changes to the one dollar bill,
> which by BEP estimates accounts for roughly half of all currency printed 
> each
> year.
> - 23 -
> $16 million - would have increased BEP spending by approximately
> $205.5 million, or less than five percent. If additional savings
> could be gained by incorporating the new feature into a larger
> redesign, such as those that took place in 1996 or 2004, the
> total burden of adding such a feature would be even smaller.
> Further Proceedings
> Plaintiffs have demonstrated that they lack meaningful
> access to U.S. currency. They have put forth several potential
> accommodations that are reasonable on their face. The government
> has not sustained its burden of showing that any of them would be
> unduly burdensome to implement. I find, accordingly, that the
> Treasury Departments failure to design and issue paper currency
> that is readily distinguishable to blind and visually impaired
> individuals violates § 504 of the Rehabilitation Act, and I will
> grant plaintiffs prayer for a declaratory judgment.
> Plaintiffs also seek three forms of injunctive relief:
> (1) a permanent injunction prohibiting defendant from continuing
> to manufacture banknotes in the present manner; (2) a permanent
> injunction requiring that banknotes be designed to incorporate
> features that will make them accessible to people with blindness
> and other vision impairments; and in conjunction therewith an
> order that defendant provide for court approval a detailed
> corrective action plan as to the features which it will
> incorporate into the design of U.S. banknotes to accomplish such
> - 24 -
> purpose; and (3) a permanent injunction mandating that defendant
> diligently pursue the development of an inexpensive portable
> electronic device which is capable of both accurate and rapid
> denomination of banknotes.
> This Court has neither the expertise, nor, I believe,
> the power, to choose among the feasible alternatives, approve any
> specific design change, or otherwise to dictate to the Secretary
> of the Treasury how he can come into compliance with the law.
> The Clerk will be directed to set a status conference for the
> purpose of discussing remedy and scheduling any further
> proceedings, unless within ten days of the issuance of this
> memorandum order the government applies for leave to file an
> interlocutory appeal. (This memorandum order involves a
> controlling question of law as to which there is substantial
> ground for difference of opinion, and an immediate appeal from
> this order may materially advance the ultimate termination of
> this litigation. See 28 U.S.C. § 1292(b).)
> * * * * *
> For the foregoing reasons, it is
> ORDERED that defendants renewed motion to dismiss or
> for summary judgment [#33] is denied; it is
> FURTHER ORDERED that plaintiffs motion for summary
> judgment [#35] is granted in part, and that it is ADJUDGED AND
> DECLARED that the Treasury Departments failure to design,
> - 25 -
> produce and issue paper currency that is readily distinguishable
> to blind and visually impaired individuals violates § 504 of the
> Rehabilitation Act. And it is
> FURTHER ORDERED that the clerk set a status conference
> for a date and time convenient to the parties approximately 30
> days after the date of this memorandum order.
> JAMES ROBERTSON
> United States District Judge
> - 26 -
>
>
>
>
>
>


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