Am. Council of the Blind v. Mnuchin

396 F.Supp.3d 147

AMERICAN COUNCIL OF the BLIND, et al., Plaintiffs,

v.Steven T. MNUCHIN, Secretary of the Treasury, Defendant.

Civil Action No. 02-864 (BAH)

United States District Court, District of Columbia.

Signed August 22, 2019

Jeffrey A. Lovitky, Jeffrey A. Lovitky, Attorney at Law, Washington, DC, for Plaintiffs.

Justin Michael Sandberg, U.S. Department of Justice, Washington, DC, W. Scott Simpson, Department of Justice, Springfield, IL, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiffs have, for the third time, moved to modify the injunction originally entered in this case in 2008, as relief for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by the defendant, the Secretary of the Treasury ("Treasury"). See Pls.' Renewed Mot. & Mem. to Modify Injunction ("Pls.' Third Mot."), ECF No. 160. The original injunction ordered Treasury to "take such steps as may be required to provide meaningful access to United States currency for blind and other visually impaired persons, which steps shall be completed, in connection with each denomination of currency, not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury." Injunction Order, October 3, 2008 ("Injunction Order") ¶ 2, ECF No. 96. In 2016, citing Treasury's delays in redesigning currency in order to accommodate "significant developments in counterfeiting technology," see Def.'s Supp. Status Rpt. (Feb. 22, 2016) ¶ 5, ECF No. 139; Def.'s Supp. Status Rpt. (May 12, 2016) ¶ 1, ECF No. 141, the plaintiffs moved to modify the injunction to require Treasury to provide meaningful access to the $10 bill by December 31, 2020, and to other denominations that can be legally redesigned by December 31, 2026. See Pls.' Second Mot. & Mem. to Modify Injunction ("Pls.' Second Mot.") at 4–5 & n.1, ECF No. 142.¹ This Court denied that motion, Am. Council of the Blind v. Lew , No. 02-CV-00864 (BAH), 2017 WL 6271264, at *2 (D.D.C. Jan. 6, 2017), but the D.C. Circuit reversed and remanded, Am. Council of the Blind v. Mnuchin , 878 F.3d 360, 371 (D.C. Cir. 2017).² In lieu of pursuing their second motion to modify the injunction on the limited issue requiring inquiry on remand, the plaintiffs filed a renewed motion to modify the injunction, mooting their second motion. See Jt. Status Rpt. & Stipulation dated Mar. 7, 2018 ("Mar. 2018 JSR") ¶ 1, ECF No. 158 ("Upon the filing of plaintiffs' renewed motion to modify, plaintiffs' motion of June 6, 2016 [Pls.' Second Mot.] shall be deemed denied as moot.").³ The plaintiffs' third motion seeks identical relief to their second motion: an order requiring meaningful access by the visually impaired to the $10 bill by December 31, 2020 and to other denominations that can be legally redesigned by December 31, 2026. Pls.' Third Mot. at 4 & n. 1.⁴ For the reasons explained below, that motion is denied.

I. BACKGROUND

In 2002, the plaintiffs filed a lawsuit claiming that Treasury was violating the Rehabilitation Act because U.S. currency was not meaningfully accessible to individuals with visual disabilities. See Compl. ¶ 1, ECF No. 1. This Court agreed, and the D.C. Circuit affirmed. See Am. Council of the Blind v. Paulson , 463 F. Supp. 2d 51, 62 (D.D.C. 2006), aff'd , 525 F.3d 1256 (D.C. Cir. 2008). As noted, the 2008 Injunction Order required Treasury to "provide meaningful access to United States currency for blind and other visually impaired persons" within a time frame of "not later than the date when a redesign of that denomination is next approved by the Secretary of the Treasury after the entry of this order and judgment." Injunction Order ¶ 2. At the time the Injunction Order was entered, the parties anticipated that the next redesign would occur between 2013 and 2018. Treasury now anticipates that a new $10 bill will not begin circulating until 2026, with subsequent denominations following at intervals of eighteen months to two years. Def.'s Answers to Court's Questions of Jan. 9, 2019 ("Def.'s Answers") (Question 13(a)), ECF No. 179.⁵ This delay, which was necessitated by "significant developments in counterfeiting technology," Def.'s Supp. Status Rpt. (Feb. 22, 2016) ¶ 5, also reflects the complexity of designing currency with a tactile or other feature that is distinct to each denomination, durable, and accurately distinguishable over time by persons with visual impairments. The following sections detail the history of this case, including the negotiations leading to the original Injunction Order, status reports memorializing Treasury's progress in complying with the Injunction Order, the arguments associated with and outcomes of the plaintiffs' two prior motions to modify the Injunction Order, and the manner in which the record related to the plaintiffs' third motion to modify the Injunction Order has developed.

A. Claims Resulting in Declaratory Judgment that Treasury is Violating the Rehabilitation Act

In 2002, the American Council of the Blind and two individual plaintiffs sued Treasury, alleging that the design of United States paper currency violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and seeking declaratory and injunctive relief. See Compl. ¶ 1. The plaintiffs alleged that individuals with visual impairments lacked meaningful access to currency because "U.S. banknotes are all identical in size and color, and virtually identical in design," id. at 1, and that, "[a]s a result, individuals with visual disabilities suffer needless impediments in purchasing groceries, transportation, and a multitude of other goods and services," id. In 2006, the then-presiding Judge entered declaratory judgment for the plaintiffs, holding that Treasury violated Section 504 by "fail[ing] to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals." Am. Council of the Blind v. Paulson , 463 F. Supp. 2d at 62.⁶

The Court paused, however, at fashioning the appropriate remedy. The plaintiffs sought three types of injunctive relief in their First Amended Complaint, which relief was discussed by the Court in its Memorandum Opinion, see id. : (1) "a permanent injunction prohibiting [Treasury] from continuing to manufacture banknotes in the present manner, the effect of which is to preclude millions of Americans from participating in the essential functions of everyday life;" (2) "a permanent injunction requiring that banknotes be designed to incorporate features which will make them accessible to people with blindness and other vision impairments; and in conjunction therewith order that [Treasury] provide for the approval of the Court a detailed corrective action plan as to the features which it will incorporate into the design of U.S. banknotes to accomplish such purpose," which corrective action plan must include a "schedule" for adding design features to assist individuals with visual disabilities other than total blindness, and "projected implementation dates, with appropriate milestones" for the incorporation of features designed to assist persons who are totally blind; and (3) "a permanent injunction mandating that [Treasury] diligently pursue the development of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes." First Am. Compl. ("FAC") at 35–36, ECF No. 53. The Court declined to grant any of these requested forms of injunctive relief, stating that "[t]his Court has neither the expertise, nor, I believe, the power, to choose among the feasible alternatives, approve any specific design change, or otherwise to dictate to the Secretary of the Treasury how he can come into compliance with the law." Am. Council of the Blind v. Paulson , 463 F. Supp. 2d at 62. Rather, the Court chose to "set a status conference for the purpose of discussing remedy," unless Treasury filed an interlocutory appeal. Id. To that end, the Court certified that its order "involves a controlling question of law as to which there is substantial ground for difference of opinion," such that "an immediate appeal ... may materially advance the ultimate termination of this litigation." Id. at 62–63.

B. D.C. Circuit Affirms that Treasury is Violating the Rehabilitation Act But Declines to Address Appropriate Remedy

Accepting review of Treasury's interlocutory appeal, a divided panel of the D.C. Circuit affirmed that the failure to design and issue paper currency that is readily distinguishable to the visually impaired violates Section 504 of the Rehabilitation Act but remanded "for the district court to address the [plaintiffs'] request for injunctive relief." Am. Council of the Blind v. Paulson , 525 F.3d at 1259, 1265, 1274. Agreeing that Treasury "has discretion to choose from a range of accommodations" to provide meaningful access to paper currency, the Court also declined to direct the implementation of the injunctive relief sought by the plaintiffs. Id. at 1271. Instead, the Court concluded that Treasury's "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." Id. The dissenting panel member opined that the interlocutory appeal was premature because a material fact remained disputed as to whether an "effective accommodation [existed that] the government could implement without imposing an ‘undue burden’ on itself or the private sector." Id. at 1275–76 (Randolph, J., dissenting) (emphasis in original) (footnote omitted) (observing that the majority does "not know what if anything should be implemented as an accommodation and neither does the American Council of the Blind, the Treasury, the district court, or the National Federation of the Blind (who supports Treasury)" (footnote omitted)).

C. 2008 Injunction Order Couples Security Redesign and Meaningful Access Redesign Without Any Deadlines

On remand to this Court,...