American Council of the Blind v. Paulson

• Decision Date: 20 May 2008
• Docket Number: No. 07-5063.,07-5063.
• Citation: 525 F.3d 1256
• Parties: The AMERICAN COUNCIL OF THE BLIND, et al., Appellees v. Henry M. PAULSON, Jr., Secretary of the Treasury, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

525 F.3d 1256

The AMERICAN COUNCIL OF THE BLIND, et al., Appellees v. Henry M. PAULSON, Jr., Secretary of the Treasury, Appellant.

No. 07-5063.

United States Court of Appeals, District of Columbia Circuit.

Argued November 19, 2007.

Decided May 20, 2008.

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 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 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 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.

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, 105 S.Ct. 712; see also Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412-13, 99 S.Ct. 2361, 60 L.Ed.2d 980 (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, 105 S.Ct. 712 (quoting Davis, 442 U.S. at 413, 99 S.Ct. 2361).² However, "[a]ny interpretation of § 504 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, 105 S.Ct. 712.

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 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 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...