American Council of the Blind v. Paulson

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).