District Court Did Not Violate Mandate Rule by Taking Agency’s Resource Constraints into Account on Remand, D.C. Circuit Holds

In American Council of the Blind v. Mnuchin, No. 19-5284 (D.C. Cir. Oct. 9, 2020), the D.C. Circuit holds that the nearly two-decade-old struggle to make our paper currency readable for the visually impaired must continue while the Treasury Department struggles to meet both accessibility and security goals.

The plaintiff, in a 2002 lawsuit, challenged the “design of U.S. paper currency [as] violat[ing] the Rehabilitation Act, 29 U.S.C. § 794, by denying a reasonable accommodation to the visually impaired.” Unlike other national currencies, USA bills are the same size and shape regardless of denomination, and so – unlike coins – cannot easily be distinguished by touch. The district court sided with the plaintiff in 2006 and directed the Treasury Secretary to make paper bills readable to the visually impaired. The D.C. Circuit affirmed this decision in ACBI, 525 F.3d 1256 (D.C. Cir. 2008).

In 2010, the Treasury issued regulations to produce notes with a raised tactile feature (RTF), but in practice it reportedly proved difficult to come up with one that met all four of the agency’s benchmarks (accuracy, manufacturability, durability and processability). Treasury’s most recent timeline contemplates that the “required accessibility redesigns may not be completed until the 2030s—some three decades after the district court first found that Treasury was in violation of federal law.”

The plaintiff filed a Fed. R. Civ. P. 60(b) motion in 2016 to impose a 2020 deadline for action by the Treasury. The district court denied the motion, but the D.C. Circuit vacated that order (ACB II, 878 F.3d 360 (D.C. Cir. 2017)), holding as follows:

“If the district court is to properly conclude that withholding meaningful access to paper currency from millions of visually impaired individuals for eight to twenty years longer than expected . . . remains equitable because of the potential financial burden resulting from granting the plaintiffs’ modification, the district court needs more concrete estimates of the costs that matter.” (Emphasis added.)

On remand, in 2019, the district court once again denied the motion to amend the injunction, finding that (1) “decoupling the accessibility and security redesign ‘would divert Treasury resources and attention from pressing anticounterfeiting measures’”; and (2) it was infeasible to “require Treasury to begin immediately incorporating RTFs into U.S. currency” because “no suitable RTF is currently available.”

The D.C. Circuit affirms. The Council’s principal argument on appeal was that the district court violated the 2017 mandate that Treasury be required to produce “concrete estimates of the costs” to support a delay. The panel holds that Treasury’s actual objection was less the financial burden than resource management, potentially affecting the security of American currency:

“The phrase ‘financial burden’ means something specific to most speakers and audiences. Although any obstacle short of pure impossibility can be framed as a financial obstacle, a financial burden usually refers to costs within a fixed budgetary framework rather than quality or timeline obstacles that might theoretically be solved with an unlimited budget. The district court found that a short-term prioritization of the accessibility redesign by itself could impair the Secretary’s ability to execute a timely security redesign . . . .  The district court’s security rationale is a management consideration, not a budgetary one.”

The panel also holds that the district court’s feasibility finding is consistent with the 2017 mandate. “ACB II should not be read to encompass any policy tradeoff that could be theoretically improved with infinite resources. The Secretary’s decision to pursue an RTF that meets all four of its benchmarks is nothing if not a policy decision. We therefore reject the Council’s suggestion that the district court’s feasibility rationale can be boiled down to financial burden.”

After deciding that the district court’s order did not violate the 2017 mandate, it goes on to hold that the lower court did not abuse its discretion in declining to set a deadline:

“[A]dding the RTF to the $10 note by the [proposed 2020 deadline] would likely push back the security redesign of each denomination by at least two years—possibly more . . . . Granted, we do not know much about how the Secretary derived his estimate of a two-year delay in the security redesign. The estimate is ‘concrete’ but it may fail to fully live up to the ‘show your work’ spirit that animated ACB II. Nonetheless, the Secretary’s estimate is a predictive judgment that ‘involves deductions based on the expert knowledge of the agency’ and therefore does not—if, indeed, it can—require ‘complete factual support in the record.’”

Moreover, the panel decides that forcing a solution from the bench “strikes at the heart of our institutional role,” because the executive – not the judiciary – mints money. “Nothing in federal law gives us the authority to require that U.S. currency take a particular form . . . . It would be odd if this court, while eschewing the intention to require any specific design, imposed a timetable that necessarily compelled a particular design or forced the Bureau to abandon plans for its preferred design.”

The panel concludes by acknowledging “the Council’s frustration on behalf of those it has so faithfully represented. As the Council said in its initial complaint over 18 years ago, ‘individuals with visual disabilities suffer needless impediments in purchasing groceries, transportation, and a multitude of other goods and services’ and are at ‘heightened risk of fraud and deceit’ . . . . Nevertheless, the same equitable power that permitted the district court to craft the 2008 injunction gave it considerable discretion in determining whether to modify it.”

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