Case: American Council of the Blind v. O'Neill

1:02-cv-00864 | U.S. District Court for the District of District of Columbia

Filed Date: May 3, 2002

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Case Summary

In 2002, the American Council of the Blind and two individuals with visual impairments filed this suit in the U.S. District Court for the District of Columbia. The plaintiffs sued the Secretary of the Treasury and the Treasurer of the United States under § 504 of the Rehabilitation Act. Represented by private counsel, the plaintiffs challenged the Treasury Department's failure to make paper banknotes that are independently usable by persons who are blind or visually impaired and sought declaratory and injunctive relief. The plaintiffs alleged that the Treasury knew about the need to make banknotes accessible for blind and visually impaired people, but had failed to take any steps to make any notes accessible in line with a 1995 National Academy of Sciences report the Department had commissioned.

Specifically, the plaintiffs argued that the 1995 NAS report had recommended changes to banknotes, including making bills different sizes based on value, enlarging the value of the bill to at least one-half of the height of the bill, printing in high-contrast ink, and changing the color of the bills based on value. These kinds of features are present in the banknotes of at least 120 countries. Despite the 1995 NAS report, the Treasury redesigned banknotes in the late 1990s in ways that did not address any of the recommended accessibility features. The plaintiffs advocated for changes to the size of bills to help blind people independently use U.S. bills. Color changes, high-contrast ink, and the size of the number on the bill were all supported as changes for people with visual impairments.

On August 30, 2002, the defendants filed a motion for summary judgment. Judge James Robertson denied the motion on March 31, 2003, noting that the court lacked a factual record on which to base a decision so early in the case. The defendants then filed a motion to dismiss, arguing that the relief requested was inappropriate because the Secretary had total discretion over currency design, the currency did not discriminate against visually impaired people, and the plaintiffs had not exhausted administrative remedies. Judge Robertson denied the defendant’s motion on March 31, 2004, but did dismiss the Treasurer as a party. 311 F. Supp. 2d 86. On November 23, 2005, the plaintiffs amended their complaint to only list the Secretary as a defendant and to expand their claims. Under the amended complaint, the lack of each different kind of accessibility feature was an independent violation of the Rehabilitation Act.

On November 28, 2006, the court held that the U.S. Treasury Department had failed to design, produce and issue paper currency that is readily distinguishable to blind and visually impaired people, violating §504 of the Rehabilitation Act. Judge Robertson granted declaratory relief to the plaintiffs, but did not give them the requested injunction. 2006 WL 3423799 (amended on December 1, 2006, 463 F. Supp. 2d 51). The government appealed the declaratory judgment decision, but the U.S. Court of Appeals for the District of Columbia affirmed Judge Robertson's decision and sent the case back to him for a ruling on the request for an injunction. 525 F.3d 1256.

The defendant argued that an injunction was inappropriate because the Department was already planning to make banknotes more accessible and because the design of banknotes is a matter of discretion for the Secretary. On October 3, 2008, Judge Robertson rejected both arguments and ordered the government to come up with a plan to make paper money readily accessible. 581 F. Supp. 2d 1. The judge did not give any specific instructions how to accomplish this, but ordered that appropriate changes in each type of paper bill (except the $1 bill, which is specially protected) must be made before any redesign of that denomination is approved by the Secretary of the Treasury. While Judge Robertson acknowledged the plaintiffs’ concern that the Department would use the broad language of the injunction to just give external bill readers to the visually impaired instead of redesigning currency, he did not foreclose that as an option for the Department to come into compliance with the law. On December 11, 2008, the parties settled on the question of attorneys fees and costs, with the Department agreeing to wire almost $700,000 as a one-time payment of such fees. Articles published about the injunction can be found here and here.

Beginning on February 27, 2009, the defendants began to file a status report every six months. The reports indicated that progress was ongoing as the government developed the technology necessary to create accessible bills that would also be secure against counterfeiting risks. After Judge Robertson’s retirement, the case was randomly reassigned to Judge Beryl A. Howell on March 21, 2012. On August 15, 2012, Judge Howell denied the plaintiff’s first motion to amend the injunction to require a firmer deadline on making banknotes accessible. Judge Howell required the defendant to continue making semiannual reports, but required the defendant to be specific about expected timetables for the redesigns.

The Bureau of Engraving and Printing's (BEP's) description of its accessibility program can be found here. The BEP started testing tactile features in 2015. On April 28, 2016, the National Council on Disability sent a letter to the Secretary, requesting that tactile features be incorporated into banknotes. After reports that rolling out accessible banknotes could be delayed until 2026, the American Council for the Blind sent a letter to Treasury expressing concern about the delays.

On June 6, 2016, the plaintiffs moved to modify the court's 2008 order to adjust the timeframe so that all bills would be made accessible by the end of 2026 and the $10 would be made accessible by the end of 2020. The defendant initially indicated that redesigns of the $5, $10, $20, and $50 bills would be complete by 2018. The defendant then revised the time estimates, saying the redesign of the $10 would take at least until 2026 and not indicating when the other denominations would be done. The Department had also distributed iBill bill readers to visually impaired people, but the plaintiffs argued that these devices should not allow the defendant to delay redesigns. The bill reader required two hands to operate and was too inconvenient to use in public settings because of how long it took to read bills. The court denied the order on Jan. 6, 2017, holding that delays in making accessible bills did not constitute a significant public interest problem to warrant the court imposing a timeframe where it had intentionally avoided one in in 2008. 2017 WL 6271264. Specifically, Judge Howell worried that decoupling anti-counterfeiting design changes from accessibility-improving design changes for the sake of meeting hard deadlines could result in inefficient double-work for the Department.

The plaintiffs appealed this order on Jan. 23, 2017. On December 26, 2017, the D.C. Circuit held that Judge Howell had not based her decision not to amend the injunction to impose hard deadlines on a sufficient factual record. 878 F.3d 360. The lack of sufficient evidence constituted an abuse of discretion, and the case was remanded for Judge Howell to expand the record on the costs of imposing strict deadlines and decide the plaintiff’s motion again. The Court of Appeals rejected the plaintiffs’ argument that it was improper for the court to consider the projected costs of meeting the proposed deadlines at all. But the Court of Appeals also rejected the defendant’s argument that supplying bill readers like the iBill was sufficient to bring the Government into compliance with the Rehabilitation Act. The plaintiffs renewed their motion to modify the injunction on May 4, 2018.

On January 4, 2019, Judge Howell directed the plaintiffs to submit a list of defense witnesses to testify as to the costs of meeting the proposed deadlines and what questions the plaintiffs intended to ask those witnesses. On the same day, the defendant moved to stay the proceedings due to a lapse of appropriations. On January 9, 2019, Judge Howell denied the motion to stay and, instead of requiring witnesses, directed both parties to submit written answers to a combined 28 questions proposed by the court. 2019 WL 503450.

After receiving the parties responses, Judge Howell issued a 77-page order on August 22, 2019, denying the plaintiff’s third motion to modify the injunction. 396 F. Supp. 3d 147. Judge Howell acknowledged that the Department was not in compliance with the injunction and had been significantly delayed, but said that the Department was consistently working to come into compliance. While further acknowledging that circumstances had changed since the injunction was issued in 2008, Judge Howell considered the plaintiffs’ proposed deadlines to be too short and infeasible. The Department was working to incorporate Raised Tactile Features (RTF) into banknotes, but would not be ready to debut the RTF notes by the end of 2026 because of unexpected design problems. Judge Howell found that modifying the injunction as proposed by the plaintiffs would not be in the public interest and that the proposed changes would not resolve the problems the plaintiffs identified.

On October 21, 2019, the plaintiffs appealed Judge Howell’s denial of their third motion to modify the injunction. As of December 5, 2019, the appeal is ongoing and no oral argument has been scheduled.

	Document
1:02-cv-00864	Docket (PACER)	Oct. 25, 2019	Oct. 25, 2019 Docket
1 1:02-cv-00864	Complaint for Declaratory and Injunctive Relief	May 3, 2002	May 3, 2002 Complaint
8-1 1:02-cv-00864	Defendants' Motion for Summary Judgment	Aug. 30, 2002	Aug. 30, 2002 Pleading / Motion / Brief
10 1:02-cv-00864	Reply Memorandum In Opposition to Defendant's Motion for Summary Judgment	Oct. 30, 2002	Oct. 30, 2002 Pleading / Motion / Brief
12 1:02-cv-00864	Reply Memorandum in Support of Defendant's Motion for Summary Judgment	Nov. 12, 2002	Nov. 12, 2002 Pleading / Motion / Brief
14 1:02-cv-00864	Memorandum Order	March 31, 2003	March 31, 2003 Order/Opinion
15 1:02-cv-00864	Defendants' Motion to Dismiss	May 28, 2003	May 28, 2003 Pleading / Motion / Brief
17 1:02-cv-00864	Memorandum in Opposition to Defendant's Motion To Dismiss	Aug. 12, 2003	Aug. 12, 2003 Pleading / Motion / Brief
18 1:02-cv-00864	Reply Memorandum in Support of Defendant's Motion to Dismiss	Sept. 10, 2003	Sept. 10, 2003 Pleading / Motion / Brief
19 1:02-cv-00864	Memorandum Order American Council of the Blind v. Snow	March 31, 2004	March 31, 2004 Order/Opinion 311 F.Supp.2d 86

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT against ROSARIO MARIN, PAUL H. O'NEILL ( Filing fee $150 ). Filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (aet, ) (Entered: 05/06/2002)	May 3, 2002	May 3, 2002 RECAP
2	ORDER establishing procedures for electronic filing. Signed by Judge James Robertson on May 16, 2002. (MT) (Entered: 05/16/2002)	May 16, 2002	May 16, 2002
3	AFFIDAVIT of Service by AMERICAN COUNCIL OF THE BLIND. (Lovitky, Jeffrey) (Entered: 06/13/2002)	June 13, 2002	June 13, 2002
4	NOTICE OF APPEARANCE OF COUNSEL by all defendants (Simpson, W.) (Entered: 06/25/2002)	June 25, 2002	June 25, 2002
5	STIPULATION re 1 REQUEST FOR ORDER TO EXTEND RESPONSE DATE by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 06/27/2002)	June 27, 2002	June 27, 2002
6	STIPULATION re 1 SECOND REQUEST FOR ORDER TO EXTEND RESPONSE DATE by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 08/06/2002)	Aug. 6, 2002	Aug. 6, 2002
7	ENTERED IN ERROR..... MOTION for Summary Judgment by ROSARIO MARIN, PAUL H. O'NEILL. (Attachments: # 1 Declaration of Thomas A. Ferguson# 2 Defendants' Statement of Material Facts)(Simpson, W.) Modified on 8/30/2002 (bcs, ). (Entered: 08/29/2002)	Aug. 29, 2002	Aug. 29, 2002
8	MOTION for Summary Judgment with Memorandum of Points and Authorities and Statement of Material Facts, by ROSARIO MARIN, PAUL H. O'NEILL. (Attachments: # 1 Declaration of Thomas A. Ferguson)(Simpson, W.) (Entered: 08/30/2002) 1 Declaration of Thomas A. Ferguson View on PACER	Aug. 30, 2002	Aug. 30, 2002 RECAP
9	MOTION for Extension of Time to File Response/Reply re 8 by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 09/03/2002)	Sept. 3, 2002	Sept. 3, 2002
10	Memorandum in opposition to motion re 8 filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 10/30/2002)	Oct. 30, 2002	Oct. 30, 2002
11	STIPULATION re 10 AND REQUEST FOR ORDER TO EXTEND REPLY DATE by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 11/04/2002)	Nov. 4, 2002	Nov. 4, 2002
12	REPLY in support of motion re 8 for Summary Judgment filed by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 11/12/2002)	Nov. 12, 2002	Nov. 12, 2002
13	NOTICE of Change of Address by W. Scott Simpson (Simpson, W.) (Entered: 11/26/2002)	Nov. 26, 2002	Nov. 26, 2002
14	ORDER denying defendants' motion for summary judgment 8 . The Clerk is directed to set a status conference. Signed by Judge James Robertson on March 31, 2003. (MT) (Entered: 03/31/2003)	March 31, 2003	March 31, 2003
15	MOTION to Dismiss with Memorandum of Points and Authorities in Support Thereof by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 05/28/2003)	May 28, 2003	May 28, 2003
16	STIPULATION and Request for Extension by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 06/27/2003)	June 27, 2003	June 27, 2003
17	Memorandum in opposition to motion re 15 Motion to Dismiss filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Lovitky, Jeffrey) (Entered: 08/12/2003)	Aug. 12, 2003	Aug. 12, 2003
18	REPLY in support of motion re 15 Motion to Dismiss filed by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 09/10/2003)	Sept. 10, 2003	Sept. 10, 2003
19	MEMORANDUM. Signed by Judge James Robertson on March 31, 2004. (MT) (Entered: 03/31/2004)	March 31, 2004	March 31, 2004
20	ORDER denying defendants' motion to dismiss 15 except that the Treasurer of the United States is dismissed as a defendant. Signed by Judge James Robertson on March 31, 2004. (MT) (Entered: 03/31/2004)	March 31, 2004	March 31, 2004
21	ANSWER to Complaint by ROSARIO MARIN, PAUL H. O'NEILL.(Simpson, W.) (Entered: 06/04/2004)	June 4, 2004	June 4, 2004
22	STATUS REPORT Report of Parties' Conference under Local Rule 16.3 by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 06/08/2004)	June 8, 2004	June 8, 2004
23	Joint MOTION for Order to Cancel Status Conference by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order Order to Cancel Status Conference)(Lovitky, Jeffrey) (Entered: 06/22/2004)	June 22, 2004	June 22, 2004
24	ORDER granting joint motion to cancel ISC set for July 1, 2004. A status conference is set for February 16, 2005 at 4:30 p.m . Signed by Judge James Robertson on June 30, 2004. (MT) (Entered: 06/30/2004)	June 30, 2004	June 30, 2004
25	STIPULATION AND PROTECTIVE ORDER by ROSARIO MARIN, PAUL H. O'NEILL. (Simpson, W.) (Entered: 07/22/2004)	July 22, 2004	July 22, 2004
26	STIPULATION and Request for Order to Change Case Schedule by PAUL H. O'NEILL. (Simpson, W.) (Entered: 10/14/2004)	Oct. 14, 2004	Oct. 14, 2004
27	ORDER granting stipulated request to change case schedule 26 . The Clerk will reset the February 16, 2005 status conference. Signed by Judge James Robertson on October 15, 2004. (MT) (Entered: 10/15/2004)	Oct. 15, 2004	Oct. 15, 2004
28	STIPULATION and Request for Order to Change Case Schedule by PAUL H. O'NEILL. (Simpson, W.) (Entered: 01/18/2005)	Jan. 18, 2005	Jan. 18, 2005
29	STIPULATION Second Stipulation and Protective Order by PAUL H. O'NEILL. (Simpson, W.) Modified on 2/4/2005 (lc, ). (Entered: 02/03/2005)	Feb. 3, 2005	Feb. 3, 2005
30	ORDER re stipulated request for further changes in scheduling 28 . Signed by Judge James Robertson on February 18, 2005. (MT) (Entered: 02/18/2005)	Feb. 18, 2005	Feb. 18, 2005
31	STIPULATION Third Stipulation and Protective Order by PAUL H. O'NEILL. (Simpson, W.) (Entered: 02/25/2005)	Feb. 25, 2005	Feb. 25, 2005
32	NOTICE of Unavailability of Counsel for Defendant by PAUL H. O'NEILL (Simpson, W.) (Entered: 04/14/2005)	April 14, 2005	April 14, 2005
33	MOTION to Dismiss or for Summary Judgment (Renewed) with Memorandum of Points and Authorities and Statement of Material Facts by PAUL H. O'NEILL. (Attachments: # 1 Exhibit Deposition Excerpts of Melanie Brunson# 2 Exhibit Deposition Excerpts of Dr. Otis Stephens# 3 Exhibit Deposition Excerpts of Patrick Sheehan# 4 Affidavit Declaration of Thomas A. Ferguson# 5 Affidavit Declaration of Julia Wilson# 6 Affidavit Supplemental Declaration of Thomas A. Ferguson)(Simpson, W.) (Entered: 08/31/2005) 1 Exhibit Deposition Excerpts of Melanie Brunson View on PACER 2 Exhibit Deposition Excerpts of Dr. Otis Stephens View on PACER 3 Exhibit Deposition Excerpts of Patrick Sheehan View on PACER 4 Affidavit Declaration of Thomas A. Ferguson View on PACER 5 Affidavit Declaration of Julia Wilson View on PACER 6 Affidavit Supplemental Declaration of Thomas A. Ferguson View on PACER	Aug. 31, 2005	Aug. 31, 2005
34	ERRATA by PAUL H. O'NEILL. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 08/31/2005)	Aug. 31, 2005	Aug. 31, 2005
35	MOTION for Summary Judgment by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order # 2 Index of Exhibits# 3 Exhibit P-1, 1983 Study# 4 Exhibit P-2, NAS Study Part I# 5 Exhibit P-2, NAS Study, Part II# 6 Exhibit P-3, Reproduction of $50 and $20 notes# 7 Exhibit P-4, BEP Description of Color - $20# 8 Exhibit P-5, BEP Description of Color - $50# 9 Exhibit P-6, Def. Response to Interrogatories No's 14-22# 10 Exhibit P-7, Def. Response to Interrogatories No's 1-13# 11 Exhibit P-8, Declaration of Patrick Sheehan# 12 Exhibit P-9, Declaration of Lorraine Marchi# 13 Exhibit P-10, BEP Explanation for Use of Green Ink# 14 Exhibit P-11, Declaration of Julia Wilson# 15 Exhibit P-12, Declaration of ourmoneytoo.org# 16 Exhibit P-13, RFQ Specifications# 17 Exhibit P-14, Def. Response to Document productions Request No's 17-28# 18 Exhibit P-15, Letter from Defendant's Counsel dated August 1, 2005# 19 Exhibit P-16, Tactile Feature for the Blind, Part I# 20 Exhibit P-16, Tactile Feature for the Blind, Part II# 21 Exhibit P-16, Tactile Feature for the Blind, Part III# 22 Exhibit P-17, Memorandum from Stone to Ferguson# 23 Exhibt P-18, Report by Deloitte and Touche, Part I# 24 Exhibit P-18, Report Prepared by Deloitte & Touche, Part II# 25 Exhibit P-19, Eurovision, Understanding Euro Notes, Part !# 26 Exhibit P-19, EuroVision Understanding Euro Notes, Part II# 27 Exhibit P-20, Bank of Canada, Accessibility Features# 28 Exhibit P-21, Ferguson Declaration# 29 Exhibit P-22, BEP Description of Intaglio Process# 30 Exhibit P-23, Cost Impact of Enlarged Numeral# 31 Exhibit P-24, Def. Response to Document Production Request No's 10-16# 32 Exhibit P-25, Email from Len Olijar# 33 Exhibit P-26, Cost Impact of Embossing Feature# 34 Exhibit P-27, Cost Impact of Perforation Feature# 35 Exhibit P-28, Cost Impact of Foil Stamp# 36 Exhibit P-29, Cost Impact of Offset Printing Feature# 37 Exhibit P-30, Declaration of Otis Stephens# 38 Exhibit P-31, Reserved# 39 Exhibit P-32, Bank of Japan, Description of Yen Note# 40 Exhibit P-33, Copy of Swiss Bank Note# 41 Exhibit P-34, 2004 CFO Report, Part I# 42 Exhibit P-34, 2004 CFO Report, Part II# 43 Exhibit P-35, Federal Reserve Board FAQ# 44 Exhibit P-36, Declaration of H.H. Holton# 45 Exhibit P-37, NIH Statistics on Visual Impairments)(Lovitky, Jeffrey) (Entered: 08/31/2005)	Aug. 31, 2005	Aug. 31, 2005
36	MOTION for Summary Judgment by PAUL H. O'NEILL (see docket entry #33 for document images). (lc, ) (Entered: 09/01/2005)	Aug. 31, 2005	Aug. 31, 2005
37	MOTION for Leave to File a Memorandum as an Amicus Curiae by NATIONAL AUTOMATIC MERCHANDISING ASSOCIATION. (Attachments: # 1 Exhibit Proposed Amicus Brief)(nmw, ) (Entered: 09/06/2005)	Sept. 2, 2005	Sept. 2, 2005
38	MOTION to Exclude Evidence by PAUL H. O'NEILL. (Attachments: # 1 Plaintiffs' Initial Disclosure Statement# 2 Text of Proposed Order)(Simpson, W.) (Entered: 09/08/2005)	Sept. 8, 2005	Sept. 8, 2005
39	AMICUS BRIEF by NATIONAL AUTOMATIC MERCHANDISING ASSOCIATION. (lc, ) (Entered: 09/09/2005)	Sept. 8, 2005	Sept. 8, 2005
40	Memorandum in opposition to motion re 38 Exclusion of Evidence filed by AMERICAN COUNCIL OF THE BLIND, PATRICK SHEEHAN, OTIS STEPHENS. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Fedex Receipt)(Lovitky, Jeffrey) (Entered: 09/15/2005)	Sept. 15, 2005	Sept. 15, 2005

Case: American Council of the Blind v. O'Neill

1:02-cv-00864 | U.S. District Court for the District of District of Columbia

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