The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
Plaintiffs, blind and visually impaired individuals and the American
Council for the Blind, an organization that advocates for the blind and
visually impaired, allege in this suit that the Department of Treasury's
failure to design and issue paper currency that is readily
distinguishable to blind and visually impaired individuals violates
section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs seek a
declaratory judgment and an order requiring the defendants to implement
specific design changes to the currency. I denied an early defense motion
for summary judgment because the record lacked factual development.
Defendants now move to dismiss, on the grounds: (1) that the design of
U.S. currency is entrusted by statute to the discretion of the Department
of the Treasury and not subject to the Rehabilitation Act; (2) that
existing currency does not discriminate against the visually impaired;
and (3) that plaintiffs' have not exhausted their administrative
remedies. In the alternative, defendants argue (a) that the agency should retain discretion over any redesign of the currency; (b) that redesign of
the one-dollar bill is expressly prohibited by Congress; and (c) that the
Treasurer of the United States should be dismissed as a defendant.
1. The Secretary's discretion does not preclude application of the
Defendants assert that the Rehabilitation Act cannot be applied to the
design of U.S. currency because the form of the currency is committed to
the sole discretion of the Secretary of the Treasury (the Secretary). The
Federal Reserve Act 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 (emphasis added). Defendants argue, essentially, that
this specific provision trumps the more general language of Section 504
of the Rehabilitation Act, which provides that: No otherwise qualified individual with a disability in
the United States, as defined in section 705(20) of
this title, shall, solely by reason of her or his
disability, be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency or by the
United States Postal Service.
To determine whether the specific provisions of the Federal Reserve Act
preclude application of section 504, I must first determine whether the
statutes are in conflict with one another. Edmunds v. United States,
520 U.S. 651, 659 (1997) ("Ordinarily, where a specific provision
conflicts with a general one, the specific governs."). The cases
defendants offer to support their argument all involve specific
provisions that actually conflict with more general statutes. See, e.g.,
Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982); Farmer v.
Employment Sec. Comm'n of N.C., 4 F.3d 1274, 1284 (4th Cir. 1993);
Knutzen v. Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343 (10th Cir.
1987). But, of course, there is no obvious conflict between the
Secretary's duty to design the currency "in the best manner to guard
against counterfeits and fraudulent alterations" and his obligations
under the Rehabilitation Act. In fact, plaintiffs advance a persuasive
argument to the contrary. They suggest that creating bills in varying
sizes would eliminate the counterfeiting practice of bleaching the ink off smaller denomination
bills and printing higher denomination markings onto the currency paper.
This, however, is a matter to be heard and decided on the merits.
2. Plaintiffs have stated a claim under the Rehabilitation Act.
To state a claim under section 504, a plaintiff must (1) be an
individual with a disability (2) who is "otherwise qualified" for
participation in a program or activity (3) of an Executive agency, and
who is (4) "denied the benefits of" or "subjected to discrimination
under" that program or activity. 29 U.S.C. § 794. The Secretary's
motion, addressing only the fourth element, asserts that the form of the
existing currency neither denies plaintiffs the benefit of currency-based
transactions nor subjects them to discrimination.
Whether the form of U.S. currency denies plaintiffs the benefits of
currency-based transactions or subjects them to discrimination within the
meaning of section 504 turns on whether plaintiffs have been afforded
"meaningful access" to currency-based transactions.*fn1 Alexander v.
Choate, 469 U.S. 287, 301 (1985). When applying this standard, I must
balance "the need to give effect to the statutory objectives and the
desire to keep [section] 504 within manageable bounds." Id. at 299.
Although an agency must provide meaningful access to its programs, id. at 301, it is
not required to fundamentally alter the nature of the programs in order
to do so, Southeastern Community College v. Davis, 442 U.S. 397, 410
(1979)(section 504 did not require nursing school to make major
adjustments to program to accommodate prospective student with severe
Defendants assert that the plaintiffs already benefit from "meaningful
access" to currency-based transactions and that the "optimal access" or
"specially-designed access" sought by plaintiffs is not mandated by the
Rehabilitation Act. It is true that section 504 does not guarantee equal
Section 504 seeks to assure evenhanded treatment and
the opportunity for handicapped individuals to
participate in and benefit from programs receiving
federal assistance. The Act does not, however,
guarantee the handicapped equal results from the
provision of state Medicaid, even assuming some
measure of equality of health could be constructed.
Choate, 469 U.S. at 304. It is equally clear that the Rehabilitation Act
was not meant to address certain types of claims. For example, section
504 is not a mandate that benefits be allocated equally among different
groups of handicapped individuals. See Traynor v. Turnage, 485 U.S. 535
549 (1988)("There is nothing in the Rehabilitation Act that requires that
any benefit extended to one category of handicapped persons must be
extended to all other categories of handicapped persons."; Modderno v.
King, 82 F.3d 1059, 1060-61 (D.C. Cir. 1996) (federal agency did not violate section 504 when it provided employees
with health insurance that afforded greater benefits to those with
physical illnesses than those with mental illnesses). Similarly,
plaintiffs may not demand modifications that would plainly be at odds with
the purpose of a program. See, e.g., Baker v. N.Y. Dep't of Env'tl
Conservation, 634 F. Supp. 1460 (N.D.N.Y. 1986) (plaintiffs's request for
special permission to use motorized vehicles to access wilderness areas of
park would be "inimical to the nature of these areas" and would "destroy
the very benefit sought by the plaintiffs."). But, apart from these
extremes, the "meaningful access" standard does not have precise
boundaries, as the Supreme Court has acknowledged:
We do not suggest that the line between a lawful
refusal to extend affirmative action and illegal
discrimination against handicapped persons always
will be clear.
Davis, 442 U.S. at 412.
The complaint alleges that there are approximately 200,000 individuals
in the United States who are blind and several million more who are
visually impaired; that people who are blind are unable without
assistance to identify banknote denominations; that people with low
vision have difficulty with U.S. currency, especially under certain
lighting conditions (e.g., in a taxi at night). Compl., at ¶¶ 23-32.
Plaintiffs acknowledge that portable electronic devices do exist to
assist with banknote differentiation but maintains that they are expensive,
relatively slow, and not always reliable. Compl., at ¶ 33. Here,
assuming as I must the truth of plaintiff's allegations and construing
them in favor of the plaintiffs, I cannot conclude that "it appears
beyond doubt that the plaintiff[s] can prove no set of facts in support
of his claim which would entitle [them] to relief." Empagran S.A. v. F.
Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46 (1957)). I am satisfied that plaintiffs
have properly alleged that they are disproportionately burdened by the
current form of the currency and that this burden may constitute denial
of meaningful access. The inquiry beyond this point is necessarily
fact-specific and demands an examination of the relative burdens of the
handicapped and the entity administering the program. See, e.g., Crowder
v. Kitagawa, 81 F.3d 1480, 1485-86 (9th Cir. 1996) (under Rehabilitation
Act precedent "the determination of what constitutes reasonable
modification is highly fact-specific, requiring case-by-case inquiry").
Defendants do not assert, nor could they appropriately assert on a motion
to dismiss, that redesign of the currency would impose undue financial or
administrative burdens. The place for that argument would be a motion for
summary judgment. 3. Exhaustion of administrative remedies would be futile.
The question of whether exhaustion is required for a claim brought
under section 504 is a somewhat vexing one. Plaintiff notes, correctly,
that the plain language of the statute does not require exhaustion,*fn2
but defendants insist that exhaustion should be required. There is some
support for both positions. The Third Circuit has recently found that
"every court of appeals to have addressed this question" has held that
plaintiffs suing private recipients of federal funds under section 504
need not exhaust Title VI administrative remedies, see Freed v.
Consolidated Rail Corp., 201 F.3d 188, 192 (2000), but that is because
the only administrative remedy Title VI offers is termination of federal funding to programs that violate Title
VI, with neither injunctive relief nor damages to aggrieved individuals.
Id. Defendants insist that exhaustion should nevertheless be required in
a suit like this one. The Fifth Circuit has indeed read an exhaustion
requirement into section 504 in a case brought against the U.S. Postal
Services. Prewitt v. United States, 662 F.2d 292, 304 (1981).
I need not decide whether exhaustion is required, however, because,
even if it were, exhaustion by these plaintiffs would be futile. See
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