[nfb-talk] Fwd: [blindlaw] decision in the money case

[David Andrews]

>
>Greetings:
>
>Below I have pasted the decision in the ACB v. 
>Paulson case.  As you know, the NFB has 
>articulated a position contrary to that of the 
>ACB's.  The issue isn't whether the blind can 
>use currency on the same terms as the 
>non-disabled.  There is no doubt that use of 
>currency can pose  some additional hassel and 
>trouble at times.  However, does it rise to the 
>level where major governmental intervention is 
>necessary.  Are the barriers so high that 
>millions upon millions of dollars should be 
>thrown at the problem?  This case raises the 
>fundamental question of how far society must go 
>to meet our needs and how far we must go to shoulder our share.
>
>Beyond those philosophical questions, there is 
>the more pregmatic question that if Treasurery 
>is required to redesign the currency, what is 
>the right way to do so?  The District Court and 
>the Appellate Court certainly do not answer that 
>question and expressly stay away from it.
>
>Any way, I have pasted the decision below.  I am 
>also attaching the amicus brief we had filed.  I 
>don't want any doubt about what we said and how we said it.
>
>ACB v Paulson.pdf
>United States Court of Appeals
>FOR THE DISTRICT OF COLUMBIA CIRCUIT
>Argued November 19, 2007 Decided May 20, 2008
>No. 07-5063
>THE AMERICAN COUNCIL OF THE BLIND, ET AL.,
>APPELLEES
>v.
>HENRY M. PAULSON, JR., SECRETARY OF THE TREASURY,
>APPELLANT
>Appeal from the United States District Court
>for the District of Columbia
>(No. 02ms00864)
>Jonathan F. Cohn, Deputy Assistant Attorney General, U.S.
>Department of Justice, argued the cause for appellant. With him
>on the briefs were Peter D. Keisler, Assistant Attorney General,
>Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Marleigh
>D.
>Dover, and Charles W. Scarborough, Attorneys. R. 
>Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
>Scott C. LaBarre argued the cause for amicus curiae
>National Federation of the Blind in support of appellant. With
>him on the brief was Joseph B. Espo.
>Jonathan T. Howe and C. Michael Deese were on the brief
>for amicus curiae National Automatic Merchandising
>2
>Association.
>Jeffrey A. Lovitky argued the cause and filed the brief for
>appellee.
>Harold Hongju Koh and David N. Rosen were on the brief
>for amici curiae Perkins School for the Blind, et al. in support
>of appellee.
>Before: RANDOLPH, ROGERS and GRIFFITH, Circuit Judges.
>Opinion for the Court by Circuit Judge ROGERS.
>Dissenting opinion by Circuit Judge RANDOLPH.
>ROGERS, Circuit Judge: The Secretary of the Treasury
>appeals the declaratory judgment that the Treasury Department's
>failure to design and issue paper currency that is readily
>distinguishable to the visually impaired violates section 504 of
>the Rehabilitation Act, 29 U.S.C. § 794. The Secretary contends
>that various coping mechanisms that enable the visually
>impaired to use U.S. currency, as well as the availability of
>portable currency readers to identify denominations and credit
>cards as an alternative to cash, demonstrate that there is no
>denial of meaningful access to currency. Consequently, the
>Secretary maintains that the district court erred in finding to the
>contrary and should not have reached the question of whether
>identified accommodations would impose an undue burden.
>Alternatively, assuming a denial of meaningful access, the
>Secretary contends that the district court erred in validating
>identified accommodations in view of their added costs and the
>burden on the public.
>Congress expressly intended the Rehabilitation Act to
>ensure that members of the disabled community could live
>3
>independently and fully participate in society. 29 U.S.C.
>§ 701(b)(1). The Secretary acknowledges that a paper currency
>system designed for the sighted means that millions of visually
>impaired individuals are dependent on the kindness of others,
>unless they purchase expensive electronic equipment, in using
>U.S.
>currency. Such dependence, which is amply 
>supported by the record, constitutes a denial of 
>meaningful access to U.S. currency that is not remedied by use
>of existing coping mechanisms. The record 
>further demonstrates that the Secretary has not 
>met his burden to show, as an affirmative defense, that each
>identified accommodation that is facially 
>reasonable, effective, and feasible would impose 
>an undue burden. A large majority of other currency systems
>have accommodated the visually impaired, and the 
>Secretary does not explain why U.S. currency 
>should be any different. The financial costs identified by
>the Secretary are not out of line with the costs 
>associated with other currency changes that the 
>Secretary has made and could be reduced were accommodations
>made as part of other planned changes. Further, 
>this lawsuit seeks neither alteration of the 
>system of using paper currency as such nor a specific accommodation
>dictated by court order, leaving the Secretary 
>to choose the means of bringing U.S. currency 
>into compliance with section 504. Accordingly, we affirm the
>grant of partial summary judgment and remand the 
>case for the district court to address the request for injunctive relief.
>I.
>Section 504 of the Rehabilitation Act provides that:
>No otherwise qualified individual with a disability in
>the United States . . . shall, solely by reason of her or
>his disability, be excluded from the participation in, be
>denied the benefits of, or be subjected to discrimination
>under any program or activity receiving Federal
>4
>financial assistance or under any program or activity
>conducted by any Executive agency . . . .
>29 U.S.C. § 794. This provision was originally proposed as an
>amendment to Title VI of the Civil Rights Act of 19641 and was
>designed to extend civil rights to disabled individuals and
>provide them a full opportunity to participate in American
>society. One of the primary purposes of the Rehabilitation Act
>is "to empower individuals with disabilities to maximize
>employment, economic self-sufficiency, independence, and
>inclusion and integration into society, through - . . . (F) the
>guarantee of equal opportunity." 29 U.S.C. § 701(b)(1).
>Congress expressly found that:
>[D]isability is a natural part of the human experience
>and in no way diminishes the right of individuals to -
>(A)
>live independently;
>(B)
>enjoy self-determination;
>(C)
>make choices;
>(D)
>contribute to society;
>(E)
>pursue meaningful careers; and
>(F)
>enjoy full inclusion and integration in the 
>economic, political, social, cultural, and 
>educational mainstream of American society.
>1
>See S. 3044, 92d Cong., 118 Cong. Rec. 525-26 (1972);
>H.R.
>14,033, 92d Cong., 118 Cong. Rec. 9712 (1972); 
>H.R. 12,154, 92d Cong., 117 Cong. Rec. 45,945 
>(1971); see also Alexander v. Choate, 469 U.S. 287, 295 n.13
>(1985).
>5
>29 U.S.C. § 701(a)(3).
>The Supreme Court has instructed that section 504 does not
>require proof of discriminatory intent because "[d]iscrimination
>against the handicapped was perceived by Congress to be most
>often the product, not of invidious animus, but rather of
>thoughtlessness and indifference - of benign neglect." Choate,
>469 U.S. at 295; see also Se. Cmty. Coll. v. Davis, 442 U.S. 397,
>412-13 (1979). Further, the Court has acknowledged that where
>a public entity refuses to accommodate otherwise qualified
>disabled individuals, its refusal may be "unreasonable and
>discriminatory." Choate, 469 U.S. at 300 (quoting Davis, 442
>U.S.
>at 413).2 However, "[a]ny interpretation of § 504
>2 Other circuits have construed section 504 broadly to
>accomplish its stated purposes, guided by the principle that the
>Rehabilitation Act is designed to "promote, among other things, the
>inclusion and integration of persons with disabilities into mainstream
>society," J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000), and
>as a remedial statute should be "'construed broadly to effectuate its
>purposes,'" Henrietta D. v. Bloomberg, 331 F.3d 261, 279 (2d Cir.
>2003) (quoting Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)).
>Further, the courts have tended to construe section 504 in pari materia
>with Title II of the ADA, 42 U.S.C. § 12,132, reasoning that these
>statutory provisions are "'similar in substance' . . . [and consequently]
>'cases interpreting either are applicable and interchangeable.'"
>Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (quoting
>Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998); see Ability Ctr.
>of Greater Toledo v. City of Sandusky, 385 F.3d 901, 908 (6th Cir.
>2004); Washington v. Ind. High Sch. Athletic Ass'n, Inc., 181 F.3d
>840, 845 n.6 (7th Cir. 1999). Title II provides that "no qualified
>individual with a disability shall, by reason of such disability, be
>excluded from participation in or be denied the benefits of the
>services, programs, or activities of a public entity, or be subjected to
>discrimination by any such entity." 42 U.S.C. § 12,132.
>6
>must . . . be responsive to two powerful but countervailing
>considerations - the need to give effect to the statutory
>objectives and the desire to keep § 504 within manageable
>bounds." Id. at 299.
>In 2002, the American Council of the Blind and two
>individuals with visual impairments, Patrick Sheehan and Otis
>Stephens (collectively "the Council"), filed suit, alleging that the
>physical design of U.S. paper currency violates section 504.
>The complaint alleged that "[t]he ability to use [U.S.] banknotes
>in a fast and easy manner is an essential ingredient of
>independent living," and yet "for millions of Americans with
>blindness or low vision, it is impossible to recognize the
>denomination of banknotes." Compl. at Introduction.
>Identifying a variety of accommodations relating to color, size,
>and shape of paper currency as well as the addition of a durable
>tactile feature, such as embossed dots, foil, micro-perf, and
>raised intaglio printing, the Council sought declaratory and
>injunctive relief to prohibit the Secretary from continuing to
>manufacture banknotes greater than the $1 bill in their present
>format and to require the Secretary to create and implement a
>corrective action plan, including development of an inexpensive
>portable electronic device capable of accurate and rapid
>denomination of banknotes.3
>Sheehan and Stephens submitted declarations providing
>substance to the alleged obstacles faced by the visually impaired
>in using paper currency that coping mechanisms cannot
>3 The Council disclaimed any effort to seek changes to the $1
>bill in moving for summary judgment. See Pls.' Motion for Summary
>Judgment Text of Proposed Order, Dist. Ct. Docket 35-1, at 2 (Aug.
>31, 2005); see also, e.g., Consolidated Appropriations Act, 2008, Pub.
>L.
>No. 110-161, sec.6, div. D, tit. I, § 113, 121 Stat. 1844, 1978 (2007).
>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
>Sciences 1995) ("1995 NRC REPORT"). Age-related diseases
>constitute the leading causes of visual impairment in the United
>States so that as the population ages, the number of individuals
>with visual impairments will increase. Id. at 14. More than
>twenty-five percent (25%) of individuals over eighty-five years
>of age are visually impaired. Id. The Report further found that:
>An important aspect of a person's full participation in
>today's society is being able to conveniently and
>confidentially exchange currency in everyday
>transactions, as when using public transportation or
>making purchases. U.S. citizens with low vision
>experience a uniquely difficult task in that U.S.
>banknotes are remarkably uniform in size, color, and
>general design. The banknotes provide no basis for
>denominating by blind persons.
>Id. at 1 (citations omitted).4
>Of the 171 authorities issuing currency identified by the
>1995 NRC Report, only the United States prints bills that are
>identical in size and color in all denominations.5 Id. at 106-12.
>4 The 1995 NRC Report recommended four possible design
>modifications of U.S. currency: (1) variation in length and height of
>each denomination; (2) large high-contrast numerals greater than half
>the height of a bill against a uniform background; (3) different
>predominant colors for each denomination; and (4) inclusion of
>features to assist with development of low-cost currency readers.
>1995 NRC REPORT at 67-76. Further study was recommended,
>including of tactile features. Id. at 76.
>5
>After the 1995 NRC Report, U.S. paper currency was
>modified to incorporate subtle differences in background color in
>different denominations. Supplemental Decl. of Thomas A. Ferguson,
>Director of the Bureau of Engraving and Printing ¶ 6 (Aug. 30, 2005),
>9
>Of the issuing authorities, 128 use paper currency that varies in
>size between some denominations, 24 use large numerals, 167
>use different color schemes for each denomination, and 23
>incorporate tactile features. Id. at 101-04. In total, more than
>seventy-eight percent (78%) of authorities surveyed issued paper
>currency in which at least some denominations could be
>identified by those with no vision, either by means of tactile
>features or size variations.6 Since 1995, Canada has redesigned
>its currency to include embossed dots that vary by
>denomination, and the Euro, introduced in 2002, has
>incorporated a foil feature perceptible to touch.
>The Secretary has acknowledged that the physical design of
>U.S.
>paper currency means that individuals with 
>extremely low vision or no vision are unable to 
>identify denominations with their own senses. Def.'s Resp. to
>Pls.' Statement of Material Facts Not in Dispute 
>¶ 2, S.J.A. 711. Over the past three decades, a 
>number of studies addressing access for the visually impaired
>have been conducted by the Bureau of Engraving 
>and Printing, to which the Secretary has delegated his
>Dist. Ct. Docket 33-6 ("Ferguson Supplemental Decl."). However, the
>Secretary concedes that the various denominations remain "virtually
>identical in color." Pls.' Statement of Material Facts Not in Dispute
>¶ 1 (Aug. 31, 2005), Supplemental Joint Appendix ("S.J.A.") 683;
>Def.'s Resp. to Pls.' Statement of Material Facts Not in Dispute ¶ 1
>(Oct. 26, 2005), S.J.A. 711.
>6 Over sixty-five percent (65%) of authorities issued currency
>in which every denomination either varied by size or included a tactile
>feature. In addition, 20 varied the size of paper currency in some
>denominations; 1 incorporated tactile features in some denominations;
>and 1 varied size and incorporated tactile features in some
>denominations. 1995 NRC REPORT at 106-12.
>10
>responsibilities for the currency under 12 U.S.C. § 418,7
>Treasury Order 101-07, 61 Fed. Reg. 48,727 (Sept. 16, 1996).
>The Bureau commissioned the 1995 NRC Report, 1995 NRC
>REPORT at ix-x, and has itself investigated means of making
>currency accessible to the visually impaired, see, e.g., BUREAU
>OF ENGRAVING & PRINTING, A STUDY OF MECHANISMS FOR THE
>DENOMINATION OF U.S. CURRENCY BY THE BLIND OR VISUALLY
>IMPAIRED 1 (final draft, Aug. 24, 1983), Dist. Ct. Docket 35-3
>("1983 BEP STUDY").8 In 2001, the Bureau examined the
>7 Section 418 provides:
>In order to furnish suitable notes for circulation as
>Federal reserve notes, the Secretary of the Treasury
>shall cause plates and dies to be engraved in the best
>manner to guard against counterfeits and fraudulent
>alterations, and shall have printed therefrom and
>numbered such quantities of such notes of the
>denominations of $1, $2, $5, $10, $20, $50, $100,
>$500, $1,000, $5,000, $10,000 as may be required to
>supply the Federal Reserve banks. Such notes shall
>be in form and tenor as directed by the Secretary of
>the Treasury under the provisions of this chapter and
>shall bear the distinctive numbers of the several
>Federal reserve banks through which they are issued.
>12 U.S.C. § 418.
>8 The 1983 BEP Study addressed the utility of modifying the
>visual and physical design of paper currency to assist individuals with
>low or no vision and evaluated features incorporated into fifty-four
>foreign currencies. 1983 BEP STUDY at 3-4. The study concluded
>that the most useful design features would be different sized currency
>for various denominations, but because of the cost such a design
>change could have on the public at large and private sector
>commercial interests, it recommended the development of handheld
>electronic currency readers. Id. at 16-17.
>11
>possibility of adding an embossed feature to paper currency.9 In
>2004, the Bureau requested proposals for low-cost portable
>currency readers. In this litigation the Secretary has identified
>as currently available a portable reader that takes only a few
>seconds to determine the value of a bill after it is inserted;
>however, it costs $270 and has difficulty identifying $20 bills.
>The Bureau also undertook major redesigns of paper currency in
>1996 and 2004 to protect against counterfeiting. Ferguson
>Supplemental Decl. ¶¶ 3-7. Although some modifications
>implemented during these redesigns may have rendered
>ancillary benefits, the Secretary has not suggested that these
>modifications have enabled the visually impaired to
>independently identify the denomination of paper currency
>without purchasing an expensive portable reader. Def.'s Resp.
>to Pls.' Statement of Material Facts Not in Dispute, S.J.A. 711.
>With respect to the possible accommodations described in
>the amended complaint, all of which are currently used in some
>other countries and have been recommended by the several
>studies conducted by or on behalf of the Bureau, the Director of
>the Bureau provided estimates of the costs of implementation.
>Including a numeral on each denomination at least sixty percent
>(60%) of current note height would cost approximately $4.5
>million and increase the annual cost of currency production by
>up to $400,000. Ferguson Supplemental Decl. ¶ 11. Addition
>9 The Bureau requested that the Canadian Bank Note
>Company, which developed the embossed feature recently
>incorporated into Canadian paper currency, apply its methodology to
>ten U.S. bank notes and test them for durability. Decl. of H.
>Hutchinson Holton ¶¶ 3-4, 8 (Aug. 25, 2005), Dist. Ct. Docket 35-44.
>The Company concluded that although the embossed feature retained
>a "satisfactory" height, a larger, scientifically sound sample was
>required to determine accurately the effect of its embossing technique
>on U.S. currency. Id. at ¶¶ 8-10; see also CANADIAN BANK NOTE CO.,
>TACTILE FEATURE FOR THE BLIND (2001), Dist. Ct. Docket 35-19.
>12
>of a durable tactile feature would cost between $45 million and
>$75 million and increase the annual cost of currency production
>by between $9 million and $18 million. Id. ¶¶ 9-10. Adopting
>different sizes for each denomination could cost in excess of
>$200 million. Def.'s Response to Pls.' Second Request for
>Production of Documents at 12 (Aug. 27, 2004), Dist. Ct.
>Docket 43-2.10 All of these cost estimates, however, include
>making changes to the $1 bill, as to which no change is sought
>and which according to the Bureau accounts for roughly half of
>all currency printed each year. Decl. of Thomas A. Ferguson,
>Director of the Bureau of Engraving and Printing, in response to
>Pls.' Motion for Summary Judgment ¶¶ 11-13 (Oct. 25, 2005),
>Dist. Ct. Docket 43-1 ("Ferguson S.J. Decl.").
>The district court, in response to the parties' cross-motions
>for summary judgment,11 granted the Council's motion in part
>and denied the Secretary's motion. Am. Council of the Blind v.
>Paulson, 463 F. Supp. 2d 51 (D.D.C. 2006). Although rejecting
>the claim that the visually impaired have "no access" to paper
>10 The Bureau's estimates far exceed those in its 1983 study,
>even accounting for inflation, which roughly halved the purchasing
>power of the dollar between 1983 and 2005, Bureau of Labor
>Statistics, Department of Labor, CPI Inflations Calculator,
>http://www.bls.gov/data/home.htm. In 1983, the Bureau estimated
>that producing paper currency in different sizes would cost $26
>million initially and increase annual production costs by $7 million,
>and that incorporation of a durable, tactile feature would cost $8.1
>million initially and $3.05 million annually. 1983 BEP STUDY 4, 14.
>11 The district court denied the Secretary's initial motion for
>summary judgment, and denied in part a motion to dismiss pursuant
>to Federal Rule of Civil Procedure 12(b)(6); the district court
>dismissed the United States Treasurer, who has no authority over the
>design of currency, as a co-defendant. Am. Council of the Blind v.
>Snow, 311 F. Supp. 2d 86, 90 (D.D.C. 2004).
>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
>discrimination under a program or activity, and (4) the program
>or activity is carried out by a federal executive agency or with
>federal funds. The defendant may assert as an affirmative
>defense to liability that accommodating the plaintiffs'
>disabilities would constitute an undue burden.12 Our review of
>the partial grant of summary judgment is de novo. See Tao, 27
>F.3d at 638.
>The Secretary does not contest three self-evident elements
>of liability under section 504. First, the visually impaired are
>disabled within the meaning of the statute. Second, the visually
>impaired are qualified to engage in commerce using U.S.
>currency. Third, the production and design of currency is a
>"program or activity" carried out by an Executive agency within
>the meaning of section 504.13 In addressing the remaining
>12 See Davis, 442 U.S. at 412; Barth v. Gelb, 2 F.3d 1180,
>1182 (D.C. Cir. 1993); Crawford v. Ind. Dep't of Corr., 115 F.3d 481,
>483 (7th Cir. 1997), abrogated on other grounds by Erickson v. Bd. of
>Governors of State Colls. & Univs. for Ne. Ill. Univ., 207 F.3d 945,
>948 (7th Cir. 2000).
>13 The Secretary's failure to challenge the applicability of
>section 504 is understandable given the expansive meaning of the
>words "any program or activity." See United States v. Gonzales, 520
>U.S.
>1, 5 (1997); Barden v. City of Sacramento, 292 
>F.3d 1073, 1076 (9th Cir. 2002); Johnson v. City 
>of Saline, 151 F.3d 564, 570 (6th Cir. 1998); Innovative
>Health Sys., Inc. v. City of White Plains, 117 
>F.3d 37, 45 (2d Cir. 1997), superseded on other 
>grounds, Zevos v. Verizon New York, Inc., 252 F.3d 163,
>171 n.7 (2d Cir. 2001). Further, the federal 
>agencies interpreting section 504, including the 
>Treasury Department, have concluded that "a federally conducted
>program or activity is, in simple terms, 
>anything a Federal agency does." DEP'T OF THE 
>TREASURY, ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
>IN TREASURY PROGRAMS, 56 Fed. Reg. 40,781, 
>40,782 (Aug. 16, 1991); see also, e.g., DEP'T OF THE INTERIOR,
>17
>issues, we note that, as the Secretary proposed, the district court
>applied the burden shifting approach in U.S. Airways, Inc. v.
>Barnett, 535 U.S. 391, 401-02 (2002), requiring the Council to
>demonstrate that "a requested accommodation would be
>'reasonable on its face,'" and then shifting the burden to the
>Secretary to demonstrate ultimately that an accommodation
>would constitute an undue burden. Am. Council of the Blind,
>463 F. Supp. 2d at 59 (quoting U.S. Airways, 535 U.S. at 402).
>Although the Supreme Court's discussion is instructive, U.S.
>Airways does not strictly govern claims under section 504. That
>case involved balancing reasonable accommodations in
>employment against the hardship imposed on employers under
>Title I of the ADA, which contains terms that do not appear in
>section 504. Id. at 400-02.14 However, we need not decide
>whether the plaintiffs' burden includes demonstrating that a
>proposed accommodation is facially reasonable. The Council
>could surmount this hurdle because it identifies accommodations
>that other countries use in practice, that the National Research
>Council has recommended for consideration, and that the
>ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
>IN FEDERALLY CONDUCTED PROGRAMS, 58 Fed. Reg. 57,690, 57,691
>(Oct. 26, 1993); CENT. INTELLIGENCE AGENCY, ENFORCEMENT OF
>NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR
>ACTIVITIES CONDUCTED BY THE CENTRAL INTELLIGENCE AGENCY, 57
>Fed. Reg. 39,604, 39,605 (Sept. 1, 1992).
>14 Title I of the ADA requires "making reasonable
>accommodations to the known physical or mental limitations of an
>otherwise qualified individual with a disability who is an applicant or
>employee, unless [a] covered entity can demonstrate that the
>accommodation would impose an undue hardship on the operation of
>the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A).
>Neither of the italicized terms appears in section 504 although the
>Supreme Court has used similar terms in discussing section 504, see,
>e.g., Davis, 442 U.S. at 412.
>18
>Secretary has not suggested are infeasible and the costs of some,
>by the Secretary's own estimates, are of similar magnitude to the
>costs of recent paper currency redesigns. As millions of
>individuals with visual impairment face daily obstacles in using
>U.S.
>paper currency, requiring the Secretary to adopt 
>an accommodation would not be disproportionate 
>to the benefit. Cf. Vande Zande v. Wis. Dep't of Admin.,
>44 F.3d 538, 542 (7th Cir. 1995).
>A.
>The Secretary does not dispute that the visually impaired
>cannot determine the denominations of paper currency without
>either the assistance of others or the use of expensive
>electronics. Instead, he contends that coping mechanisms
>suffice to provide the visually impaired with all of the access
>that section 504 requires.
>Few courts have considered whether the visually impaired
>have meaningful access where information is exclusively
>provided in a format readable only by the sighted, perhaps
>because federal regulations implementing section 504 and Title
>II of the ADA have expressly required accommodations.15
>15 For example, Treasury Department regulations require it to
>"furnish appropriate auxiliary aids where necessary to afford an
>individual with handicaps an equal opportunity to participate in, and
>enjoy the benefits of, a program or activity conducted by the agency,"
>31 C.F.R. § 17.160(a)(1), including "Brailled materials, audio
>recordings and other similar services and devices," id. § 17.103(c).
>Other departments, such as Homeland Security, Agriculture, and
>Commerce, have similar provisions in their regulations. See 6 C.F.R.
>§§ 15.60, 15.3(a); 7 C.F.R. § 15b.27(c); 15 C.F.R. § 8b.4. The Justice
>Department imposes similar requirements on state and local
>governments under the ADA, see 28 C.F.R. §§ 35.104, 35.160, and
>has specifically indicated that the "[u]se of printed information alone"
>is insufficient, DEPARTMENT OF JUSTICE, ADA TITLE II TECHNICAL
>19
>However, the Seventh Circuit has held that under section 504
>public schools must provide examinations in a format accessible
>to the visually impaired. Brookhart v. Ill. State Bd. of Educ.,
>697 F.2d 179 (7th Cir. 1983). Its rationale was straightforward:
>A student "who is unable to disclose the degree of learning he
>actually possesses because of the test format or environment
>would be the object of discrimination solely on the basis of his
>handicap." Id. at 184; see also Martin v. Metro. Atlanta Rapid
>Transit Auth., 225 F. Supp. 2d 1362, 1377 (N.D. Ga. 2002); cf.
>Camarillo v. Carrols Corp., 518 F.3d 153, 156-58 (2d Cir.
>2008).
>Although the cases addressing meaningful access are
>necessarily fact-specific, they do reflect, in light of Supreme
>Court guidance, a general pattern: Where the plaintiffs identify
>an obstacle that impedes their access to a government program
>or benefit, they likely have established that they lack meaningful
>access to the program or benefit. By contrast, where the
>plaintiffs seek to expand the substantive scope of a program or
>benefit, they likely seek a fundamental alteration to the existing
>program or benefit and have not been denied meaningful access.
>For instance, the physically impaired lack meaningful access
>where mass transit or public buildings do not provide wheelchair
>access, see, e.g., Ability Ctr., 385 F.3d at 910; United States v.
>Bd. of Trs. for the Univ. of Ala., 908 F.2d 740, 751 (11th Cir.
>1990); Dopico v. Goldschmidt, 687 F.2d 644, 652-53 (2d Cir.
>1982), and deaf individuals lack meaningful access to
>government activities or programs without the provision of
>interpretive assistance, see, e.g., Randolph, 170 F.3d at 858;
>Rothschild v. Grottenthaler, 907 F.2d 286, 291 (2d Cir. 1990);
>Bd. of Trs. for the Univ. of Ala., 908 F.2d at 748. As the Second
>Circuit explained in Dopico:
>ASSISTANCE MANUAL II-3.3000 (1993).
>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
>intended to be "the universal medium or common standard, by
>a comparison with which the value of all merchandise may be
>ascertained," JOSEPH STORY, 3 COMMENTARIES ON THE
>CONSTITUTION § 1113.16 The current design of paper money
>springs from the world of the sighted. Upon casual inspection,
>anyone with good vision can readily discern the value of U.S.
>currency; yet even the most searching tactile examination will
>reveal no difference between a $100 bill and a $1 bill. The
>Secretary has identified no reason that requires paper currency
>to be uniform to the touch. Instead, the fact that U.S. paper
>currency does not include features that are detectable by the
>16
>See also ARISTOTLE, NICOMACHEAN ETHICS, Book 5, ch.
>5 (W.D. Ross trans., 1908) (350 B.C.) ("[A]ll things that are
>exchanged must be somehow comparable. It is for this end that
>money has been introduced. . . ."). Founding fathers believed that
>U.S.
>currency should be readily usable by the public, 
>see GRAND COMM. OF THE CONTINENTAL CONG., 
>PROPOSITIONS REFLECTING THE COINAGE OF GOLD, SILVER AND COPPER
>1 (1785) ("CONTINENTAL CONGRESS COMMITTEE 
>REPORT") ("The money of the United States should 
>be equally fitted to all."), and easy identification of the
>value of currency was considered one of its 
>crucial characteristics. In a letter to the 
>Continental Congress, Secretary of the Treasury Robert Morris explained
>that the purpose of coining money was "in order 
>that the weight and fineness might be known at 
>the first view, and of consequence the value be instantly
>ascertained." Letter from Robert Morris to 
>Continental Congress (Jan. 15, 1782), reprinted 
>in CONTINENTAL CONGRESS COMMITTEE REPORT at 3; see also CHARLES
>DE MONTESQUIEU, 22 SPIRIT OF THE LAWS § 2 
>(Thomas Nugent trans., 1752) (1748) (noting that 
>governments create standardized money so that its value "may
>be known by inspection only"). Morris proceeded 
>to examine means of making currency "perfectly 
>intelligible to the whole People," advocating a currency
>that could be easily divisible to enable ease of 
>use by "the great mass of people. Wherever such 
>things require much labor, time and reflection, the greater
>number who do not know, are made the dupes of 
>the lesser number who do." MORRIS, reprinted in 
>CONTINENTAL CONGRESS COMMITTEE REPORT at 5.
>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
>court's statement is not fairly read as foreclosing reliance on
>technological auxiliary aids, such as a portable currency reader.
>Courts have held that government-provided interpretive services
>can provide meaningful access to the disabled, see Randolph,
>170 F.3d 850; Rothschild, 907 F.2d 286; Bd. of Trs. for the Univ.
>of Ala., 908 F.2d 740,17 although there is no occasion for us to
>address whether inexpensive, commercially provided auxiliary
>aids could satisfy the Secretary's statutory obligation to ensure
>meaningful access to the critical government programs for
>which Congress has assigned him responsibility.
>B.
>The district court rejected the Secretary's affirmative
>defense that accommodating the visually impaired would
>impose an undue burden. Am. Council of the Blind, 463 F.
>17 Neither Bird v. Lewis & Clark College, 303 F.3d 1015 (9th
>Cir. 2002), nor Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), relied
>on by the Secretary, support the proposition that a disabled individual
>has meaningful access when dependent on assistance from strangers.
>In Bird v. Lewis & Clark College, 303 F.3d 1015 (9th Cir. 2002), the
>claim was made that a travel-abroad program had violated section 504
>and Title III of the ADA by making insufficient accommodation for
>a disabled student. The Ninth Circuit concluded that the hiring of two
>helpers, provision of alternate transportation and lodging, and
>purchase of a second wheelchair and special showerhead were
>sufficient accommodations provided by the school because "'when
>viewed in its entirety, [the program] is readily accessible to and usable
>by individuals with disabilities.'" Id. at 1021 (quoting Barden v. City
>of Sacramento, 292 F.3d 1073, 1075-76 (9th Cir. 2002)). In Nelson
>v.
>Miller, 170 F.3d 641 (6th Cir. 1999), the 
>plaintiff disclaimed any argument that section 
>504 required the provision of Braille ballots, id. at 650, and
>the court's decision turned on its 
>interpretation of a state's constitution rather than section 504.
>26
>Supp. 2d at 62.18 On appeal, the Secretary contends, not that he
>does not bear the burden, but rather that the district court
>"plainly erred in holding categorically that none of the plaintiffs'
>proposals to modify the currency would impose an undue
>burden." Appellant's Br. at 34. We conclude that the Secretary
>has failed to establish that implementing all accommodations
>would be unduly burdensome and that therefore the grant of
>partial summary judgment for the Council was appropriate.
>First, the Secretary misconstrues section 504, contending
>that the district court improperly validated the most expensive
>accommodation. See Appellant's Br. at 36. However, liability
>under section 504 requires only that the least burdensome
>accommodation not be unduly burdensome. The Secretary has
>discretion to chose from a range of accommodations, and his
>failure to demonstrate that all accommodations found by the
>district court to be facially reasonable would pose an undue
>burden presents no occasion for us to address any particular
>accommodation.
>Second, the district court provided a fulsome analysis of the
>deficiencies in the financial aspects of the Secretary's evidence
>that we need only highlight here. See Am. Council of the Blind,
>453 F. Supp. 2d at 60-62. Suffice it to note, the estimates of
>costs, all of which were submitted by the Bureau, appear inflated
>because they include alteration of the $1 bill. See Ferguson S.J.
>Decl. ¶ 11; Am. Council of the Blind, 463 F. Supp. 2d at 61 n.13.
>18 In the related context of analyzing the concept of "undue
>hardship," used to qualify an employer's obligation to accommodate
>disabled employees under section 501 of the Rehabilitation Act and
>Title I of the ADA, the Seventh Circuit suggested that the modifier
>"undue" implies a comparison between the cost of an accommodation
>and the resources of the defendant. Vande Zande, 44 F.3d at 542-43;
>see also Barth, 2 F.3d at 1186-87.
>27
>Approximately half of the paper currency that the Bureau prints
>in any given year are $1 bills. See. Ferguson S.J. Decl. ¶ 13;
>Def.'s Resp. to Pls.' Statement of Material Facts Not in Dispute
>¶ 69, S.J.A. 717. The Secretary also suggested that the
>accommodations identified by the Council could require
>modifications that would result in the need for more frequent
>replacement of paper currency, further increasing costs. Am.
>Council of the Blind, 463 F. Supp. 2d at 60-61.19 However, the
>district court noted the absence of any statistically significant
>evidence from the Secretary on reduction in life span of the
>banknotes, id., and on appeal the Secretary has not challenged
>this finding. Although the Bureau stated that tactile features
>could reduce the useful life of currency, see Ferguson S.J. Decl.
>¶ 7; see also 1983 BEP STUDY at 16, other currencies continue
>to use them and the Secretary's reference to a May 2007 paper
>about the durability of the embossed feature on Canadian
>currency, see Reply Br. at 21,20 calls into question only the
>efficacy of that particular kind of tactile feature; it does not
>indicate that embossing reduces the usable life of the currency
>19 Although the Secretary does not address longevity in his
>opening brief, and typically the argument would be forfeited, see Bd.
>of Regents of the Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C.
>Cir. 1996), the Council addressed the subject in its brief, Appellee's
>Br. at 47-49, to which the Secretary replied, Reply Br. at 20-21, and
>our review of the grant of partial summary judgment is de novo, see
>Tao, 27 F.3d at 638.
>20 Charles Spencer & Dan Dupuis, Bank Note Accessibility
>Features for the Blind and Vision Impaired: The Canadian Experience
>(May 2007) (unpublished paper presented by Canadian Bank of
>Canada officials at a Currency Conference, Bangkok, Thailand),
>Addendum to Reply Br.
>28
>and expressly notes that methods exist to improve durability.21
>Third, because other currency systems accommodate the
>needs of the visually impaired, the Secretary's burden in
>demonstrating that implementing an accommodation would be
>unduly burdensome is particularly heavy. The Secretary has not
>explained why U.S. paper currency is so different or the
>situation of the Bureau so unique that the costs associated with
>identified accommodations would constitute an undue burden.
>Although "[a]ny change to the design of U.S. currency would
>undoubtedly require a substantial investment of labor, time, and
>money," Am. Council of the Blind, 463 F. Supp. 2d at 62, the
>Secretary does not challenge the district court's findings that the
>Bureau's cost estimates for the design modification that the
>Council has identified would constitute a "small fraction of [the
>Bureau's] annual expenditures,"22 and that even these costs
>could be further reduced were a new feature for the visually
>impaired incorporated into a redesign planned for other
>purposes, such as occurred in 1996 and 2004 to address
>counterfeiting, id. Independent of this litigation, the Bureau has
>21 Our dissenting colleague notes that the tactile features
>highlighted by the Council were not included "in the complaint until
>three and a half years after the case began, after discovery closed."
>Dissenting Op. at 5 n.7. However, the Secretary advances no
>contention that he was prejudiced by the amended complaint, the
>Director of BEP has estimated the cost of each accommodation
>(except raised intaglio printing), Am. Council of the Blind, 463 F.
>Supp. 2d at 61, and the Secretary did not seek additional discovery.
>22 The district court observed that the Bureau "is not financed
>by appropriations from Congress, but by a revolving fund that is
>replenished by the sale of its products - currency and postage stamps to
>other federal entities. In 2004, the [Bureau] earned revenues of
>$525 million. . . ." 463 F. Supp. 2d at 54; see also 2005 New
>Currency Budget, Dist. Ct. Docket 60-9.
>29
>stated that it "expects to redesign U.S. currency every seven to
>ten years." BUREAU OF ENGRAVING & PRINTING, CHIEF
>FINANCIAL OFFICER, PERFORMANCE & ACCOUNTABILITY
>REPORT 7 (2004), Dist. Ct. Docket 35-41. In view of the costs
>of these prior redesigns,23 even the inflated costs proffered by
>the Secretary are not so out of line as to suggest an undue
>burden. Although the Secretary must assess priorities, section
>504 is no less of a statutory command than the one prompting
>the Secretary to expend large sums of money to combat
>counterfeiting.
>As regards the burden on third parties, the Secretary and
>various studies have recognized that alteration of the size of
>denominations could impose third-party costs. See, e.g., 1983
>BEP STUDY at 16; see also Amicus Br. of the National
>Automatic Vending Machine Association ("NAMA"). The
>Secretary acknowledges, however, that "the burdens imposed on
>other entities or the public are not usually considered in
>determining whether proposed changes to accommodate the
>disabled are reasonable under section 504." Appellant's Br. at
>37 n.9. He nonetheless urges the court to consider "external,
>third party costs" because of "unique circumstances . . . [in
>which] [s]ignificant changes to currency will have an obvious
>and immediate impact on all entities that process currency, and
>the costs of any such changes will ultimately be borne by the
>public." Id. Assuming without deciding that such
>considerations are relevant in determining liability under section
>504, we conclude that the Secretary has failed to demonstrate a
>material issue of disputed fact on the severity of each facially
>23 The cost of the 1996 redesign was approximately $34
>million and increased the annual cost of producing currency by over
>$31 million. The cost for the 2004 redesign was over $113 million
>and increased the annual cost of producing currency by more than $25
>million. Ferguson Supplemental Decl. ¶¶ 4-7.
>30
>reasonable accommodation on third parties, including cash
>processors, cash registers, vending machines, and change
>machines.
>The district court found that the record contained "little
>information about the effect of currency changes on third
>parties" and that the existing evidence was "inconclusive." Am.
>Council of the Blind, 463 F. Supp. 2d at 60 n.10. A partially
>disclosed survey by NAMA was limited to eight firms and
>addressed only the addition of Braille and alteration of the size
>of currency. Further, "it appear[ed] to have been conducted
>under the assumption . . . that plaintiffs seek changes to the $1
>bill." Id. The district court also found that "other respondents,
>particularly those that conduct business outside the U.S., stated
>that changes would not be difficult to implement." Id.
>The Secretary does not contest these findings on appeal,
>asserting instead that "it is self evident that . . . changes would
>impose significant new burdens on . . . various entities in the
>private sector." Appellants' Br. at 38. Assertions are not
>evidence and thus cannot create a material issue of fact in
>dispute to justify reversal here. Moreover, future redesigns of
>currency for security purposes are already likely to require
>retooling of currency-handling machinery. See Amicus Br. of
>NAMA at 14-16. The Secretary does not suggest that 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
>31
>compliance with section 504. Id. at 62. Because the Secretary
>has not demonstrated that accommodating those with no vision
>would constitute an undue burden, however, the alteration of
>currency to assist only those with low vision would not satisfy
>his obligation under section 504 by continuing to deny the
>benefits of currency to others because of their visual
>impairment.
>Our dissenting colleague postulates a different litigation
>strategy that the Secretary could have chosen but did not,
>contending that the Council failed to establish the
>"effectiveness" of identified accommodations other than
>changing the size of money. Dissenting Op. at 2-4. The
>Secretary did not argue, either in the district court or on appeal,
>that summary judgment was inappropriate because the Council
>failed to establish that tactile features would not enable the
>visually impaired to denominate bills and conceded that
>individuals with no vision can detect the micro-perforation, foil,
>or embossed symbols included on the Euro, Swiss Franc, and
>Canadian Dollar.24 Pls.' Statement of Material Facts Not in
>24 The excerpts from the Statement of Facts in the Secretary's
>brief that are relied upon by our dissenting colleague, Dissenting Op.
>at 3-4, are not to the contrary and "allud[ing] to the factual basis for
>[a]
>claim in the statement of facts" does not raise 
>a legal argument. AMSC Subsidiary Corp. v. FCC, 
>215 F.3d 1154, 1161 n. ** (D.C. Cir. 2000). The Secretary
>describes the 1995 NRC Report as including four 
>recommendations and concludes that of the four, 
>only changing the size of money would help those with no
>vision. Appellant's Br. at 7-8. However, tactile 
>features were not among the four 
>recommendations, and the Report "urge[d]" research into both durable
>tactile features and mirco-perforation. 1995 NRC 
>Study at 5; see supra n.4. Further, the 
>Secretary's statement that the Bureau has previously concluded
>that visually disabled individuals "could not 
>identify [micro-perforation] with sufficient 
>accuracy for currency denomination" and that the "pattern could
>be altered or simulated
>32
>Dispute ¶¶ 46, 54, 59, S.J.A. 695, 697, 698; Def.'s Resp. to Pls.'
>Statement of Material Facts Not in Dispute ¶¶ 46, 54, 59, S.J.A.
>714, 715. Neither did the Secretary dispute the feasibility of any
>design features other than raised intaglio printing. See Def.
>Response to Pls.' Third and Fourth Set of Interrogatories and
>First Request for Admission at 6-7, Joint Appendix 529-30; Am.
>Council of the Blind, 463 F. Supp. 2d at 61. Instead, the
>Secretary relied on costs to establish that implementing all
>accommodations would be unduly burdensome. On appeal, the
>Secretary does not challenge the district court's analysis of the
>cost data, contending only that the district court erred in
>concluding that this evidence was insufficient. For our
>dissenting colleague to conclude that "my colleagues have not
>identified a single accommodation that is undisputably
>'reasonable, effective, and feasible,' and for which there is no
>material issue about an undue burden," Dissenting Op. at 4
>(citation omitted), is to rewrite the record and the manner in
>which the Secretary has chosen to present his challenge on
>appeal. Whereas the Secretary has chosen to defend on the
>ground that he cannot be held liable under section 504 because
>implementing each identified accommodation would pose an
>undue burden, our dissenting colleague has focused on legal
>arguments antecedent to the undue burden issue in an attempt to
>relitigate the Secretary's case for him and purported to find
>disputed facts with respect to issues the Secretary has not raised.
>easily," Appellant's Br. at 9-10, does not change his concession that
>micro-perforation "could provide a meaningful denomination cue
>merely by virtue of its location on the banknote, even if the specific
>micro-perforation pattern is not itself sufficient to provide
>denomination information," nor the fact that Swiss currency
>successfully incorporates such a feature. Pls.' Statement of Material
>Facts Not in Dispute ¶¶ 44, 46 S.J.A. 694-95; Def.'s Resp. to Pls.'
>Statement of Material Facts Not in Dispute ¶¶ 44, 46 S.J.A. 714.
>Finally, the 2007 Canadian study, see supra n. 20 & accompanying
>text, was not before the district court.
>33
>We hold that the Council has demonstrated both the denial
>of meaningful access and the availability of facially reasonable
>accommodations that are feasible and efficacious, and that the
>Secretary has not demonstrated that implementation of every
>such accommodation would involve an undue burden.
>Accordingly, we affirm the grant of partial summary judgment
>on the Secretary's liability under section 504, and we remand
>the case for the district court to address the Council's request for
>injunctive relief.
>RANDOLPH, Circuit Judge, dissenting: We should have
>dismissed this interlocutory appeal. The case arrived here after
>the district court, on its own motion, certified that an otherwise
>unappealable order "involves a controlling question of law as to
>which there is substantial ground for difference of opinion and
>that an immediate appeal from the order may materially advance
>the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
>Another panel directed the parties to brief the question whether
>we should exercise our discretion to accept the appeal. See
>Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). The
>plaintiff - the American Council of the Blind - opposed the
>appeal, rightly in my view, on the grounds that the "district court
>was notably silent as to what remedy it would ultimately order,"
>that the issue of undue burden is "purely hypothetical" at this
>stage, that future proceedings might render the issue moot, and
>that nothing this court could say on the issue would advance the
>termination of the litigation. Br. for Appellee at 60-61 (citing
>Control Data Corp. v. International Business Machines Corp.,
>421 F.2d 323, 325 (8th Cir. 1970)). The Secretary agrees that
>"the question whether specific changes to the currency are
>unduly burdensome is 'hypothetical' because the district court
>has not yet ordered any particular changes." Reply Br. for
>Appellant at 19. As a result, "the question whether [a tactile]
>feature would be unduly burdensome is not properly before this
>Court on interlocutory appeal." Id. Yet the majority plunges
>ahead to decide issues neither party thinks are before us.
>The product of this ill-conceived appeal is proof positive
>that it should never have been allowed. According to the
>majority opinion, the Secretary loses because he failed to carry
>his burden of proving that every possible adjustment - every
>accommodation - would amount to an "undue burden." Maj.
>Op. at 16. This formulation, and others like it in the opinion,
>display a fundamental misconception. The Secretary had no
>burden of the sort the majority describes. To decide on
>summary judgment that the Secretary violated the Act, there had
>to be an effective accommodation the government could
>2
>implement without imposing an "undue burden" on itself or the
>private sector.1 And the effectiveness of the accommodation
>had to be established as an undisputed material fact. Yet with
>one exception, the district court never specified which of
>plaintiff's proposals would be effective and neither have my
>colleagues. The one exception is changing the size of bills
>according to their denomination.2 While this might be effective
>(and might require an Act of Congress),3 material facts were in
>dispute regarding the burden of implementing such a system.
>The government put forth evidence indicating that it would cost
>1 Failure to implement an ineffective accommodation is not a
>violation of the Rehabilitation Act. See Se. Cmty. Coll. v. Davis, 442
>U.S.
>397, 409-10 (1979).
>2 Plaintiff also sought "a permanent injunction mandating that
>[the Secretary] diligently pursue the development of an inexpensive
>portable electronic device which is capable of both accurate and rapid
>denomination of banknotes." First Amended Complaint for
>Declaratory and Injunctive Relief 36 (Nov. 23, 2005). Such a device
>might be effective, but there is no evidence that it could be produced
>at an affordable price.
>3 Congress has prohibited the Treasury from redesigning the $1
>bill, which is why the Council does not seek to change its size.
>Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sec. 6,
>div. D, tit. I, § 113, 121 Stat. 1844, 1978 (2007). If euro banknotes are
>any guide, progressively increasing the size of American currency
>from the $1 bill on up would lead to huge bills in the higher
>denominations. The largest euro banknote (?500) is 40 millimeters
>longer and 20 millimeters taller than the smallest (?5), yet the $1 bill
>is already 36 millimeters longer and 4 millimeters taller than the ?5
>banknote. ECB: Banknotes, http://www.ecb.int/bc/euro/banknotes/
>html/index.en.html (last visited May 8, 2008).
>3
>billions of dollars to alter private vending machines4 and ATMs
>and that rendering current wallets and purses obsolete would
>impose additional costs. A member of the plaintiff's Advocacy
>Services Committee admitted that varying the size of the
>currency "really does pose an undue burden on business."
>Defendant's Renewed Motion to Dismiss or for Summary
>Judgment 29 (Aug. 31, 2005). The Rehabilitation Act is not
>violated if the proposed accommodation imposes an "undue
>burden," see Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993),
>and billions of dollars may well constitute such a burden, even
>though a good portion of the amount would fall on the private
>sector. See Am. Pub. Transit Ass'n v. Lewis, 655 F.2d 1272,
>1278 (D.C. Cir. 1981) (holding that the Rehabilitation Act
>cannot justify federal regulations that "impose extremely heavy
>financial burdens on local transit authorities").
>I do not understand my colleagues' double negative that
>"[t]he Secretary did not argue, either in the district court or on
>appeal, . . . that tactile features would not enable the visually
>impaired to denominate bills." Maj. Op. at 31. In his opening
>brief, the Secretary cited a study by the National Academy of
>Sciences for the proposition that "banknote size that differs with
>denomination is the only [alteration] applicable to the needs of
>blind people." Br. for Appellant at 8. The Secretary went on to
>argue that embossed dot patterns have "insufficient durability to
>approximate the average length of time required for notes to
>remain in circulation." Id. at 9. He also noted that a study of
>microperforation by the Bureau of Engraving and Printing found
>that "individuals with disabilities could not identify the
>perforation patterns with sufficient accuracy for currency
>4 There are approximately 7,000,000 food and beverage vending
>machines in the United States; by one estimate, it would cost $3.5
>billion to retool or replace these machines if the size of different bills
>were progressively increased.
>4
>denomination, and analysis also showed that this feature was
>unlikely to be effective or durable because the perforation pattern
>could be altered or simulated easily." Id. at 9-10 (emphasis
>added). And the Secretary's reply brief reproduced a study
>showing that blind testers could not identify 33.8% of Canadian
>banknotes that had circulated for a year. Reply Br. for
>Appellant at 21. The same study found a general problem with
>tactile features: "Diabetes is one of the leading causes of vision
>loss and is often accompanied by a loss of sensitivity in the
>fingertips." Addendum to Reply Br. for Appellant at 5.5 The
>Secretary made these arguments before the district court as
>well.6 In addition, the Secretary offered evidence to the district
>court that the ink of an embossed numeral would rapidly rub off
>during circulation, making this feature useless to the blind.
>Defendant's Statement of Material Facts as to Which There Is
>No Genuine Issue ¶ 63 (Aug. 31, 2005).
>In short, my colleagues have not identified a single
>accommodation that is undisputedly "reasonable, effective, and
>feasible," Maj. Op. at 15, and for which there is no material
>issue about an undue burden. They do not know what if
>anything should be implemented as an accommodation and
>neither does the American Council of the Blind, the Treasury,
>5 Even if the Secretary had not disputed on appeal the
>effectiveness of various measures, it is absurd to suggest - as the
>majority does - that the parties' arguments on the merits somehow
>constrain our discretion whether to hear the appeal at all.
>6 E.g., Defendant's Responses to Plaintiffs' Third and Fourth Sets
>of Interrogatories and First Request for Admissions 1-2 (Aug. 31,
>2005). The effectiveness of a foil feature also is uncertain. The 5, 10,
>and 20 euro banknotes have a foil feature that differs in shape and
>position from the feature on the 50, 100, 200, and 500 euro banknotes.
>But no evidence showed that such a feature would enable the blind to
>distinguish each denomination of American currency.
>5
>the district court, or the National Federation of the Blind (who
>supports Treasury).7 Yet my colleagues affirm the grant of
>summary judgment against the Secretary. In doing so they state
>that because the Secretary did not show that every possible
>measure would impose an undue burden, he is barred on remand
>from showing that any particular measure would have this
>effect. Maj. Op. at 29-30, 33. This cannot possibly be correct.
>The district court did not believe its ruling meant any such thing
>and neither did the plaintiff, as its statements quoted earlier
>demonstrate. Further evidentiary proceedings necessarily must
>be held before this case can be brought to an end. The case is
>therefore not even close to being in the proper shape for
>reasoned appellate decision-making. When faced with "a
>question of law which turns on a thorough examination of the
>facts," we should be "reluctant to rely on what may turn out to
>be an incomplete record to clarify legal doctrine for the district
>court's guidance." Koehler v. Bank of Bermuda Ltd., 101 F.3d
>863, 866 (2d Cir. 1996).
>7 During discovery, the Council's complaint explicitly sought
>only two tactile changes to the currency: "denomination numerals
>indicated by Braille symbols and raised printing on the banknote
>itself" and "varying the length [and] height . . . of banknotes."
>Complaint for Declaratory and Injunctive Relief 17 (May 3, 2002).
>The complaint said nothing about microperforation, foil, electronic
>currency readers, or raised intaglio printing. Although the parties may
>have mentioned these possible changes during discovery, the Council
>did not add them to the complaint until three and a half years into the
>case, after discovery closed. First Amended Complaint for
>Declaratory and Injunctive Relief ¶ 124 (Nov. 23, 2005).
>
>
>Scott C. LaBarre, Esq.
>
>LaBarre Law Offices P.C.
>1660 South Albion Street, Ste. 918
>Denver, Colorado 80222
>303 504-5979 (voice)
>303 757-3640 (fax)
>slabarre at labarrelaw.com (e-mail)
>www.labarrelaw.com (website)
>
>CONFIDENTIALITY NOTICE: This message may contain 
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David Andrews and white cane Harry.
-------------- next part --------------
[NOT YET SCHEDULED FOR ORAL ARGUMENT]
No. 07-5063
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
AMERICAN COUNCIL OF THE BLIND, et al, Plaintiffs-Appellees,
v.
HENRY M. PAULSON, JR., SECRETARY OF THE TREASURY,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF OF AMICUS CURIAE
NATIONAL FEDERATION OF THE BLIND
IN SUPPORT OF APPELLANT
Scott C. LaBarre (Admission Pending) LaBARRE LAW OFFICES, P.C.
1660 S. Albion, Suite 918 Denver, Colorado 80222 (303) 504-5979
Joseph B. Espo
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
(410) 962-1030
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 07-5063
AMERICAN COUNCIL OF THE BLIND, et al.,
Plaintiffs-Appellees, v.
HENRY M. PAULSON, JR., SECRETARY OF THE TREASURY,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. R. P. 26.1, Counsel of Record for the
National Federation of the Blind Inc., a District of Columbia Corporation since 1949, hereby
certifies that it is a 501C(3) non-profit organization. It has no parent organization, and no other
corporation, public or otherwise, owns any interest in it.
Dated: August 1,2007 c
Scott C. LaBarre (Admission Pending) LaBARRE LAW OFFICES, P.C.
1660 S. Albion, Suite 918 Denver, Colorado 80222 (303) 504-5979
Joseph B. Espo
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
(410) 962-1030

TABLE OF CONTENTS
				Page
CORPORATE DISCLOSURE STATEMENT   i
TABLE OF CONTENTS    ii  
TABLE OF AUTHORITIES iii
I. INTRODUCTION AND STATEMENT OF IDENTITY AND INTEREST
OF THE NATIONAL FEDERATION OF THE BLIND 1
II. SUMMARY OF ARGUMENT 3
III. ARGUMENT 5
A. History, experience, and case law suggest that the blind have labored long and hard to achieve basic rights and that equality for the blind does not mean that the blind access society's programs and benefits in
an identical manner to sighted individuals ...5
B. The blind have "meaningful access" to this nation's currency 8
C. Congress is the place to redesign currency and incorporate features, which provide greater accessibility to it 14
IV. CONCLUSION 15
CERTIFICATE OF WORD COUNT 17
CERTIFICATE OF SERVICE 17

TABLE OF AUTHORITIES

Cases Page
Alexander v.Choate, 469 U.S. 287,299(1985) 8,9
Campisi v. Acme Markets, Inc., 915 A.2d 117, 121 (Pa. Super. Ct. 2006) 7
FloridaCent. &P.R. Co. v. Williams, 20 So. 558, 562 (Fla. 1896) 7
Massachusetts v. E*Trade Access, Inc.,464 F.Supp.2d 52, 55 (D. Mass 2006) 13

Statutes
29 U.S.C. § 794(a) 8
12U.S.C. §418 14
42 U.S.C. §1382c(a)(2) 5
20 C.F.R. § 404.1581 5

Other Sources
The Right to Live in the World: the Disabled in the Law of Torts,
54 Cal.L. Rev. 841,842(1966) ...6
Memorandum of Points and Authorities in Support of Plaintiff s Motion for
Summary Judgment, 2002 WL 32894284 (2002) 12


IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 07-5063
AMERICAN COUNCIL OF THE BLIND, et al,
Plaintiffs-Appellees, v.
HENRY M. PAULSON, JR., SECRETARY OF THE TREASURY,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF OF AMICUS CURIAE
NATIONAL FEDERATION OF THE BLIND
IN SUPPORT OF APPELLANT
I. INTRODUCTION AND STATEMENT OF IDENTITY AND INTEREST OF THE NATIONAL FEDERATION OF THE BLIND
Although this case addresses the specific issue of whether the blind have "meaningful
access" to U.S. currency, it actually raises the more general and often debated question of what
equal participation for the blind means in our society.   More specifically, this case turns on what
level of participation the law mandates for the blind. The National Federation of the Blind, our
nation's largest and oldest organization of the blind, has a unique ability to provide a perspective
on the significance of the District Court's ruling that the blind do not have "meaningful access"
to this country's currency.
1

The National Federation of the Blind (NFB) is the oldest and largest organization of the
blind in America. Dr. Jacobus tenBroek, a blind lawyer and professor, founded the Federation in
1940, and its president today is Dr. Marc Maurer, also a blind lawyer.   The Federation has
grown to include over 50,000 members organized into affiliates in all fifty states plus Puerto
Rico and the District of Columbia and more than seven hundred local chapters located in cities of
every size. The Federation also has approximately thirty divisions, one of which is the National
Association of Blind Merchants Inc., Kevan Worley, President. Approximately three thousand
blind merchants who are members of the NFB will be significantly and specifically affected by
the outcome of this litigation.
The purpose of the National Federation of the Blind is the complete integration of the
blind into society on a basis of equality. This objective involves the removal of legal, economic,
and social discrimination; the education of the public to new concepts concerning blindness; and
the achievement by all blind people of the right to exercise to the fullest their individual talents
and capacities. It means the right of the blind to work along with their sighted neighbors in the
professions, common callings, skilled trades, and regular occupations.
It is estimated that more than one million persons in the U.S. are blind and each year
50,000 more will become blind. Studies show that only AIDS and cancer are feared more than
blindness. However, blindness need not be the tragedy which it is generally thought to be.
NFB is a consumer organization of blind people working together to improve
opportunities for the blind and the understanding of blindness by the general public. NFB acts as
a vehicle for collective self-expression by the blind. Since its beginning, the NFB has been
working toward the goal of helping blind persons achieve self-confidence and self-respect, and
the complete integration of the blind into society on a basis of equality. The National Federation
2

of the Blind is doing this by providing public education about blindness, information and referral
services, scholarships, literature and publications about blindness, aids and appliances and other
adaptive equipment for the blind, advocacy services and protection of civil rights, employment
assistance and support services, development and evaluation of technology, and support for blind
persons and their families. NFB says, "The real problem of blindness is not the loss of eyesight,
but the misunderstanding and lack of information which exist. If a blind person has proper
training and opportunity, blindness can be reduced to the level of a physical nuisance,"
Although this case has gained a great deal of attention and public discussion, the National
Federation of the Blind submits that there are many other, far more important, issues that warrant
judicial intervention. Because the blind use U.S. currency successfully and do not encounter
significant barriers participating in this nation's commerce posed by the existing U.S. currency,
the National Federation of the Blind does not believe that the District Court's ruling should
stand. First, under existing legal precedent, the blind cannot say that they lack "meaningful
access" to currency. Second, and perhaps most significant, the design and management of this
nation's currency is the province of Congress.
II. SUMMARY OF ARGUMENT
The blind of this nation have been on a long journey from involuntary confinement in
care facilities to an ever growing, rightful place as fully participating citizens. Just a few
generations ago, the law classified the blind as grossly negligent for traveling alone through
public crossings. However, with the advent of civil rights legislation and greater public
awareness, that trend has been changing to the point where it is no long deemed unreasonable for
the blind to be about in the world and to be there on their own accord. While the concept of
equality for the blind is still emerging and achievement of equality by the blind is not yet fully
3

accomplished, equality for the blind cannot mean that they are treated exactly the same as the
sighted. After all, operation and enforcement of the law cannot give the blind sight. What the
law must guaranty, however, is an equal opportunity to participate in the programs, activities,
and benefits of society. In other words, the blind must have "meaningful access."
As it pertains to U.S. currency, the National Federation of the Blind believes that the
blind presently possess "meaningful access" to this nation's currency. The blind have developed
strategies which allow them to keep track of and effectively manage their paper money. The
Federation believes that radical redesign of U.S. currency is not warranted because the blind
already have "meaningful access" to U.S. currency allowing them to participate successfully in
our nation's commerce. Rapidly emerging technology will soon obviate the need to redesign
paper currency.
The Federation also believes that the Courts are not the appropriate place to change the
way U.S. currency is printed. Although the District Court may declare that the U.S. Treasury is
violating Section 504 of the Rehabilitation Act, ultimately Congress and the Executive will have
to fashion and fund any alteration to the currency. It appears that Treasury is making significant
efforts to furnish more convenient access to paper money by the blind. Therefore, the Courts
should not interfere with a process that is well under way.
For these reasons, the National Federation of the Blind urges this Court to reverse the
District Court's declaratory judgment. The blind of this nation have "meaningful access" to U.S.
currency as currently structured, and the United States Treasury is not presently violating Section
504. Although the Federation does not categorically oppose alterations to U.S. currency, the
legislative and administrative process must be allowed to proceed.
4

III. ARGUMENT
A.        History, experience, and case law suggest that the blind have labored long and hard to achieve basic rights and that equality for the blind does not mean that the blind access society's programs and benefits in an identical manner to sighted individuals.
Ultimately, issues like those presented in this case go to meaning of equality. For a blind
person, does true equality mean that his/her interaction with the world must be precisely
comparable to that of the sighted? If the answer to this question is yes, then a blind person can
never achieve the desired result. Operation and enforcement of the law cannot give a blind
person sight.   Because this is true, the law must operate to give the blind an opportunity to
participate meaningfully and an opportunity to access the resources necessary to live a complete
and Ml life.1
Although no one argues that the blind have achieved true equality in our society, the
blind and people with disabilities generally are closer than ever to securing equality and first
class citizenship. That this case can be brought and argued without summary dismissal
represents true progress. Only a few generations have passed since a time when the blind had to
advocate for the most basic of legal rights. As Dr. Jacobus tenBroek, the Federation's founder
and first president, stated:
The actual physical limitations resulting from the disability more often than not play little role in determining whether the physically disabled are allowed to move about and be in public places. Rather, that judgment for the most part results from a variety of considerations related to public attitudes, attitudes which not infrequently are quite erroneous and misconceived. These include public imaginings about what the inherent physical limitations must be; public solicitude about the safety to be achieved by keeping the disabled out of harm's way; public feelings of protective care and custodial security; public doubts about why the disabled should want
1 This brief uses the term blind to include those individuals with no sight as well as those who have limited vision making them "legally blind" as defined by 42 U.S.C. § 1382c(a)(2) and 20 C.F.R. §404.1581.
5

to be abroad anyway; and public aversion to the sight of them and the conspicuous reminder of their plight. For our purposes, there is no reason to judge these attitudes as to whether they do credit or discredit to the human head and heart. Our concern is with their existence and their consequences.
To what extent do the legal right, the public approval, and the physical capacity coincide? Does the law assure the physically disabled, to the degree that they are physically able to take advantage of it, the right to leave their institutions, asylums, and the houses of their relatives? Once they emerge, must they remain on the front porch, or do they have the right to be in public places, to go about in the streets, sidewalks, roads and highways, to ride upon trains, buses, airplanes, and taxi cabs, and to enter and to receive goods and services in hotels, restaurants, and other places of public accommodation?
The Right to Live in the World: the Disabled in the Law of Torts, 54 Cal. L. Rev. 841, 842 (1966).
It is no wonder that Dr. tenBroek felt compelled to ask these basic questions. Even
though the National Federation proposed that the Civil Rights Act of 1964 extend its protections
to individuals with disabilities, the Act did not extend any protection to the disabled leaving Dr.
tenBroek to hope that Courts would extend the Act's protections to the disabled. Id. at 853.
Consequently, Dr. tenBroek had to turn to the common law and state statutes to advance the
rights of the disabled. The long-standing law of the land in 1966 still questioned the basic legal
right of the blind to travel alone and assume the same risks as the non-disabled. In a case where
a blind man sustained injuries while traveling through a public railroad crossing, the Florida
Supreme Court said:
The blind man appreciates, better than any one else, the misfortune of the disability under which he labors, and the extra hazards to which that misfortune subjects him, and that 'prudence' (a synonym for 'due care') with him, at all times, dictates that, when alone, he shall avoid all known places of danger where the gift of sight is necessary to. perfect safety. What would be an entirely safe path for the man with perfect sight would be a death-dealing pitfall for the blind man. Prudence dictates to the one that he can tread it safely; to the other that it leads to his destruction. It is gross negligence in a blind man to
6

expose himself alone in any situation where he knows that the faculty of sight is absolutely necessary to the safety of life and limb.
Florida Cent. & P.R. Co. v. Williams, 20 So. 558, 562 (Fla. 1896).
Today, at least, it is presumed that the blind have the right to be about in the land and that
it is not gross negligence for a blind person to participate in the most basic of daily activities.
Recently, the Pennsylvania Superior Court addressed a case where a grocery store patron tripped
over the cane of a blind employee of the store and sustained injuries. The patron alleged that it
was negligence for the store not to post warnings about the presence of a blind employee, in
effect alleging that the blind employee was a harmful condition. In holding that it was not
negligence, as a matter of law, not to post such warnings, the Court said,
Reasonable persons realize that blind people, or people with
canes, are capable of working in many occupations. Grocery
stores attract a wide variety of customers with various handicaps, including
blindness; thus, a grocery store customer should be well
aware that, at any given moment, there is a reasonable likelihood
he will encounter a disabled person.
Campisi v. Acme Markets, Inc., 915 A.2d 117, 121 (Pa. Super. Ct 2006).
Now that the right to participate in society is clear, the questions become what obligation
does society have to modify existing programs to allow a person with a disability to participate
by eliminating barriers posed by a disability? This is the question of how far and to what extent
accommodations must be made. Although the law mandates that significant accommodations
must be made, especially by those who have substantial resources like the federal government,
the law does not mandate that all accommodations be made. This concept recognizes implicitly
that individuals with disabilities themselves have some obligation to make their own
accommodations and develop strategies to address the world as it is. Put another way, this
concept calls for a partnership between society and the disabled to affect solutions so that the
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people with disabilities have the opportunity to succeed. Put yet another way, the blind and
disabled must have at least "meaningful access" to societal programs, privileges, and benefits to
gain the opportunity to succeed.
B.        The blind have "meaningful access" to this nation's currency.
As the blind journey from a complete inability to participate in society, the issue becomes
how specific programs and societal benefits should be altered to allow the blind "meaningful
access." The key question in this case is whether the blind have meaningful access to the
currency printed by the Department of Treasury, more specifically the Bureau of Engraving and
Printing. The concept of "meaningful access" comes broadly from the interpretation of Section
504's mandate that no federal program or activity may discriminate on the basis of disability.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability.
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 or by the United States Postal Service.
29U.S.C. §794(a).
As the Supreme Court has explained, Section 504 reflects "two powerful but
countervailing considerations - the need to give effect to the statutory objectives [of assisting the
handicapped] and the desire to keep § 504 within manageable bounds." Alexander v. Choate, 469
U.S. 287, 299 (1985). In striking a balance between these competing considerations, the Court
has emphasized that "Section 504 seeks to assure evenhanded treatment for handicapped
individuals" but that it does not guarantee "equal results" in the enjoyment of benefits from
various programs or activities. Id. at 304. In Alexander, the Court provided guidance as to the
type of harm actionable under Section 504, concluding that a State's decision to reduce the
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number of inpatient hospital days reimbursed under Medicaid (from 20 to 14), did not deny
disabled individuals "meaningful access" to Medicaid benefits. Id. at 301. The Court "assume[d]
without deciding that § 504 reaches at least some conduct that has an unjustifiable disparate
impact on the handicapped/' id. at 299, but emphasized that not "all action disparately affecting
the handicapped" is actionable. Id. at 298.
The Court explained, moreover, that the State had not contravened the mandate of
Section 504 even though the impact of the limitation on Medicaid payments would fall more
heavily on disabled individuals than the population at large. The proper inquiry, the Court
stressed, was whether plaintiffs would have "meaningful access" to the Medicaid benefits the
State actually elected to provide. Id. at 302. The Court concluded that, having defined a limited
benefit, the State was not required "to alter this definition of the benefit being offered simply to
meet the reality that the handicapped have greater medical needs." Id. at 303.
As it applies to this case, does our federal government have the obligation to make
currency accessible in a non-visual manner at any cost? How exactly should the currency be
redesigned? Whose right and responsibility is it to determine exactly how this should occur?
Can a District Court declare that the blind do not have meaningful access to currency unless that
currency is usable by the blind without any inconvenience? Does meaningful access for the
blind in this context mean that the blind must use currency in an identical manner to the sighted?
The National Federation of the Blind submits that the minor trouble blind people encounter in
using currency does not, under existing law, constitute a lack of meaningful access.
As the Government points out in its brief, the Plaintiffs to this action admit that they
mostly use currency without great inconvenience or significant trouble. They cannot identify a
significant frequency of occurrences where they are defrauded. They cannot identify a
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substantial inability to participate in our nation's commerce with the existing form of currency.
Appellant's Brief at 24-27.
The NFB believes that this is so because the blind spend their cash just as easily as the
average sighted person. Because the blind have won the right to participate in the basic activities
of our nation, the blind can get their paper money from a bank or ever growing number of
accessible ATM's, use that currency to board a bus, and then spend that money on brats and beer
at the ballpark. When some issue arises, the blind bring to bear the alternative techniques they
have developed that allow them an ability to participate meaningfully in our nation's commerce.
Each blind person develops a different system to keep track of his or her paper currency. If a
blind person believes they may be in a situation where someone is likely to defraud them, the
blind person can pay with smaller bills to mitigate the extent to which insufficient change can be
returned. A blind person can ask a bystander to confirm a certain note or make the return of
change very public by announcing in a loud voice something like "this is a ten, right? If a blind
person is particularly concerned about a certain merchant, a credit card or debit card can be
employed to take paper currency completely out of the equation. In today's society, it is
extremely rare to find a merchant who does not accept some sort of credit. In fact, the numbers
of places that refuse to handle cash likely exceed those who will only accept cash. The old
saying of "cash is king" no longer rings as true as it once did.
These alternative techniques do not even take into consideration the advent and future of
assistive technology for the blind. Presently, there are several devices which can be used to
verify independently the denomination of a particular paper bill. There is, for example, the
currency identifier mentioned in the Government's Brief. Appellant's Brief at 10. The National
Federation of the Blind has developed the Kurzweil NFB reader, a hand held device which can
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quickly scan and read all manner of printed documents including currency. The number of these
devices is rapidly growing and the expense is rapidly shrinking.
There are many issues of great concern to the blind. However, redesigned currency is not
chief among them. The National Federation of the Blind sets policy through the adoption of
convention resolutions. In the last fifteen years, the Federation has adopted 298 resolutions.
Only two of them have addressed this currency matter. Resolution 94-07 expresses the interest
of the blind in the modernization of U.S. currency and expresses the blind's determination to
educate the public to the fact that blind persons can and do handle their own money, no matter
how it looks or feels.
RESOLUTION 94-07
WHEREAS, the United States Department of the Treasury is examining alternatives to the present currency for the purposes of making counterfeiting more difficult and for making currency more compatible with modern technology; and
WHEREAS, revisions to the present currency may include variations
in color, raised markings, bar coding, or other electronically readable formats; and
WHEREAS, it is a widespread misconception that blind people cannot handle their own money because they cannot see it; and
WHEREAS, it is beyond dispute that blind people can. in fact handle their own money; however, bills which can be identified by other than conventional print could be more convenient for everyone, may be a necessity to safeguard against counterfeiting, and may be desirable to take the best advantage of evolving technology: Now, therefore,
BE IT RESOLVED by the National Federation of the Blind in Convention assembled this seventh day of July, 1994, in the City of Detroit, Michigan, that this organization express the interest of blind people in the discussion of a modernized form of currency so that any changes which may eventually be made will include methods of identifying money by other than strictly visual means; and
BE IT FURTHER RESOLVED that this Federation, notwithstanding its expressed interest in the ultimate decisions on currency changes, do all in its
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power correctly to inform the public that blind people can and do successfully handle money in its present form.
The Braille Monitor, Vol. 37, No. 8 August/September 1994; see also www.nfb.org and clicking
"publications" and further clicking "Braille Monitor."
In 2002, the NFB adopted another resolution on the topic. Resolution 02-25 specifically
addressed this legal action. It called upon the organization to "take steps to counter the adverse
effects of the harmful publicity arising from this lawsuit and renew efforts to educate the public
that the blind can participate in commerce." Braille Monitor, Vol. 45, No. 7 August/September,
2002; see also www.nfb.org and click "publications" and then click "Braille Monitor."
As the 1994 resolution states, the National Federation of the Blind does not necessarily
oppose ongoing efforts to devise methods to make currency more accessible. However, the
Federation is concerned about the negative perception of blind people that might be created by
over-emphasizing the issues faced by the blind while manipulating paper money. The
Federation's concern is confirmed by one of the pleadings of Appellee in this case, which said:
These burdens are significant for millions of Americans. They are
borne on a daily basis by the most vulnerable individuals in our society. The
current design of U.S. currency constitutes a major impediment to disabled
individuals in independently engaging in daily life activities, (emphasis
supplied).
Memorandum of Points and Authorities in Support of Plaintiff s Motion for Summary Judgment,
2002 WL 32894284 (2002) at p. 28.
This is not the experience of the tens of thousands of members of the National Federation
of the Blind. The blind, as a class, are not the most vulnerable individuals in our society, and
experience of the blind dictates that manipulation of our nation's currency does not constitute a
major barrier or impediment.
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The kinds of cases where a major or significant barrier arises are those where the blind
are entirely shut out from employment, goods, or services. Examples of such abound, but the
recent case of Massachusetts v. E*Trade Access, Inc. ,464 F.Supp.2d 52, 55 (D. Mass 2006),
serves as an excellent example. In this case, the largest deployer of ATM's in the world refused
to provide non-visual access to their equipment. As such, the blind had no way of accessing an
ATM without significant intervention of a sighted individual. This is not so as to the
independent manipulation of currency by the blind. Because of the alternative techniques
developed, the blind very rarely need the intervention of sighted individuals to manage
effectively their currency.
Another example is the series of cases where those selling goods and services through the
internet refuse to design their website in a manner that allows the blind to use assistive
technology to access the items for sale. When a website is not compatible with assistive
technology for the blind, the blind are shut out from use of that website. All that needs to happen
is a slight redesign in the underlying computer code of the site so that the various graphical tags
are labeled in such a way so that the screen reading software used by the blind will verbalize
what the graphical tag represents.
Even in such cases the blind are not advocating for access identical to that of the sighted,
because same would be impossible. First, the blind understand that there often are many pictures
and other fancy graphics that will never get adequately described or represented. Additionally,
the blind further understand that they must bring their own accommodations to bear on the
situation. In other words, the blind must already find ways to acquire the assistive technology to
access the websites and otherwise navigate the internet. The blind do not demand that the
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designers and owners of these websites provide every potential blind user with the assistive
technology necessary to verbalize the visual messages being sent to the screen.
In the overall spectrum of barriers faced by the blind, access and management of this
nation's currency is not a significant issue. As demonstrated by the record before the District
Court, the blind face little difficulty in accessing use of currency. It cannot be said that the blind
are unable to participate in our nation's commerce because our currency has not been
significantly redesigned.
The National Federation of the Blind once again wishes to make it clear that it does not
oppose an effort to make currency more usable on a non-visual basis. As referenced supra,
Federation Resolution 94-07 calls for additional features to be incorporated in our currency to
permit greater non-visual access. However, the Federation firmly believes that the Courts are not
the place to implement such changes to the currency.
C.        Congress is the place to redesign currency and incorporate features, which provide greater accessibility to it.
Congress has made it clear that the design and management of U.S. currency falls
squarely upon the shoulders of the United States Department of the Treasury. 12 U.S.C. § 418.
Nothing in the District Court's ruling effectively changes this fact. Although the Court declares
that Section 504 has been violated, such a declaration does not change the status quo. The
District Court admits that it does not have the expertise nor the power to mandate a specific
alteration to a potential redesign of U.S. currency. If the lower Court's decision is allowed to
stand, lawyers, the Judge, and interested individuals sitting around a conference table may agree
upon some manner in which to redesign U.S. currency. Ultimately, however, the Bureau of
Engraving and Printing, with Congress's blessing through appropriations and otherwise, will
have to implement the agreed upon plan. Other than declaring that the current design of
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currency violates Section 504, the Court cannot affect any change without the expressed
approval of Congress and the Executive.
Furthermore, there is nothing in the record or otherwise to indicate that the United States
government is not taking these concerns seriously. Treasury appears to be making a serious
effort to develop long-term solutions to this problem. Appellant's Brief at 4-11.
Ultimately, technology will obviate the need to redesign radically the U.S. currency.
Scanning technology for the blind will be lodged in a common cell phone. That technology will
allow a blind person to scan a particular bill and know within a few seconds what the particular
denomination is.
Because of the discretion afforded under law and the impracticality of a Court
redesigning U.S. currency, ultimately, the blind of this nation must turn to Congress and the
Executive to fashion a permanent solution to the relatively minor problem of how the blind can
better manipulate U.S. currency. Until that solution is secured, however, there is no significant
evidence that the blind face substantial barriers to participating in the largest economy in the
world because of an inability to manipulate U.S. "green backs."
IV. CONCLUSION
As stated in several places in this Amicus Brief, the National Federation of the Blind does
not categorically oppose an alteration to U.S. currency. The Federation believes that a solution
can be found and implemented within existing processes. It is the Federation's firm belief that
the United States Courts are not the place to redesign U.S. currency to fix a problem that is not
significant compared to the other issues faced by the blind. Judicial intervention and national
resources should be focused on and be brought to bear on those activities, programs, and
practices that have the affect of shutting out and denying basic opportunity to the blind. For the
15

reasons herein, the National Federation of the Blind respectfully urges that this Court reverse the
District Court's declaration that the blind lack meaningful access to this nation's currency and
that the Department of Treasury is correspondingly violating Section 504 of the Rehabilitation Act.
Respectfully Submitted,
Scott C. LaBarre (Admission Pending) LaBARRE LAW OFFICES, P.C.
1660 S.Albion, Suite 918 Denver, Colorado 80222 (303) 504-5979
Joseph B. Espo
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
(410)962-1030
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CERTIFICATE OF WORD COUNT
I hereby certify that the foregoing brief satisfies the requirements of Fed. R. App. P.
32(a)(7) and D.C. Cir. Rule 32(a) as follows: the brief was prepared in 12-point Times New
Roman font and contains 4,802 words, according to the computer word count supplied by
Microsoft Word.
Joseph B.Espo
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 1st day of August, 2007, that copies of the foregoing Brief
of Amicus Curiae National Federation of the Blind in Support of Appellant were mailed, first
class mail, postage prepaid, to:
Jeffrey A. Lovitky
1776 K Street, N.W. Suite 200 Washington, D.C. 20006
and
Marleigh D. Dover
Mark B. Stern
Charles Wylie Scarborough
U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Joseph B. Espo
17