# American Council of the Blind v. O'Neill > District Court, District of Columbia · August 22, 2019 URL: https://www.frixlaw.com/law-library/cases/4432271 ## Case - **Court:** District Court, District of Columbia - **Decided:** August 22, 2019 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Chief Judge Beryl A. Howell - **Nature of suit:** Civil - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4432271 ## Opinion text UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN COUNCIL OF THE BLIND, et al., Plaintiffs, Civil Action No. 02-864 (BAH) v. Chief Judge Beryl A. Howell STEVEN T. MNUCHIN, Secretary of the Treasury, Defendant. MEMORANDUM OPINION 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 1 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 1 The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately. Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system. 2 On remand, the D.C. Circuit directed “the district court to better support its findings supporting its denial of modified injunctive relief,” Am. Council of the Blind v. Mnuchin, 878 F.3d at 363, after concluding that this denial failed to provide “adequate evidentiary support and reasoning,” id. at 371. Given this mandate to “better support [this Court’s] findings,” id. at 363, and in the face of the parties’ denial of any need for an evidentiary hearing on remand, see infra Section I.K, the Court has supplemented the record by ordering the parties to respond to a series of questions focused on Treasury’s progress on compliance with its Rehabilitation Act obligations and the costs, equities and feasibility of adopting the plaintiffs’ proposed modifications to the Injunction Order. See Order Directing the Parties to Answer Questions, ECF No. 175. To ensure the completeness of the evidentiary support for the findings made here, the parties’ responses to those questions are reproduced virtually in full in the footnotes when the evidence or conclusions predicated on those responses are referenced in the text. 3 The plaintiffs note that the parties’ stipulation was never formally adopted in an order. See Pls.’ Answers to Court’s Questions of Jan. 9, 2019 (“Pls.’ Answers”) (Question 3), ECF No. 176. Rather, in response to the stipulation, the Court adopted the parties’ proposed schedule, which anticipated that the plaintiffs would file any renewed motion to modify by May 8, 2018, and any motion to conduct discovery by July 24, 2018. See Min. Order (Mar. 7, 2018). To the extent any further clarification is needed, the plaintiffs’ second motion, ECF No. 142, is denied as moot in light of the plaintiffs’ third motion, ECF No. 160. 4 The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately. Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system. 2 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 5 In response to the Court’s Question 13(a) (“In the event that the plaintiffs’ proposed order is adopted, list, for each U.S. currency denomination, how the schedule for introducing new bills would be affected.”), Treasury responded: “Any effort to pursue affixing a raised tactile feature (RTF) to the legacy $10 bill would divert significant resources from [the Bureau of Engraving and Printing (“BEP”)] efforts to produce a more secure note by 2026. To accommodate the necessary testing (explained further below), it would delay the timeline for more secure notes by at least two years and possibly more. The plan for the new family of notes is to introduce the $10 bill first in 2026, with each additional denomination being introduced every 18 months to two years thereafter. Pushing back the introduction of the first note by two years or more would result in all other denominations being delayed by a similar amount of time.” Def.’s Answers (Question 13(a)). This current “plan” is consistent with information provided by Treasury to this Court in September 2017, during the pendency of the appeal, about the agency’s “working timeline” for currency redesign, which is “driven primarily by security,” including incorporation of RTF in bill denominations, Def.’s Eighteenth Status Rpt. (Sept. 18, 2017), Att. 1, Letter from Leonard R. Olijar, Dir. of Bureau of Engraving & Printing, to Sen. Ron Wyden (Aug. 1, 2017) (“Aug. 2017 Ltr. from BEP”) at 1–2, ECF No. 156-1, which information was acknowledged by the D.C. Circuit, see Am. Council of the Blind v. Mnuchin, 878 F.3d at 366. 3 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 6 Treasury’s motion for summary judgment had earlier been denied because the record lacked factual development, and the agency’s motion to dismiss had been denied, except with respect to dismissing the Treasurer of the United States, because: (1) Treasury’s discretion over the design of currency did not preclude application of the Rehabilitation Act; (2) plaintiffs had stated a claim under the Rehabilitation Act; and (3) exhaustion of administrative remedies would be futile. See Am. Council of the Blind v. Snow, 311 F. Supp. 2d 86, 87–90 (D.D.C. 2004). 4 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 5 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, the parties turned their attention to remedies, and whether Treasury should be held to any particular timeline became a point of contention. On August 29, 2008, Treasury summarized its “process of determining how best to provide . . . meaningful access” and urged that “[i]t is in the interest of all concerned to permit . . . Treasury to gather the necessary data and complete its analysis to ensure that the method employed to provide . . . meaningful access is effective in achieving that objective without undermining the Secretary’s 6 critical efforts to prevent counterfeiting and to ensure that United States currency remains a reliable, durable, and usable medium of exchange for the public.” Def.’s Status Conference Stmt. ¶¶ 2, 9, ECF No. 80. Treasury suggested that its process would “allow the Court to have the benefit of the Secretary’s factual investigation as well as the Department’s experience and expertise in appropriately resolving the competing demands related to currency design.” Id. ¶ 9. The plaintiffs disagreed with Treasury’s proposed process because Treasury “explicitly refused to provide Plaintiffs with any estimated time frames for completion of” its process and “therefore . . . the issue of time frames is [now] appropriate for discussion.” Pls.’ Status Conference Stmt. ¶ 1, ECF No. 81. The plaintiffs, alternatively, proposed that the Court and the plaintiffs be deeply engaged in any process undertaken by Treasury in redesigning U.S. currency. Specifically, the plaintiffs requested that the Court “convene a status conference to discuss the timeframes for completion of [the process],” with Treasury “provid[ing] estimated timeframes so as to permit monitoring by the Court,” with such monitoring to include ongoing status reports if Treasury anticipated missing any deadline. See Pls.’ Proposed Remedial Order ¶¶ 3, 5, 9, ECF No. 81-1. The plaintiffs also sought quarterly progress reports, with the Court required to “accept and consider comments from Plaintiffs” following each report, as well as quarterly meetings between the plaintiffs and Treasury to discuss progress and give the plaintiffs further opportunity to share comments. Id. ¶¶ 10–12. At a status conference convened on September 4, 2008, Min. Entry (Sept. 4, 2008), the plaintiffs’ request for close judicial monitoring of Treasury was rejected, with the Court explaining it “will not, cannot, [and does not] want to micromanage this process; nor do I think, with all deference to the [plaintiffs], that [they] ha[ve] won a seat at the Treasury table that designs the bills.” Transcript of Hearing (Sept. 4, 2008) (“Sept. 2008 H’rg Tr.”) at 13:4–7, ECF 7 No. 113-2. At the same time, the Court expressed concern that Treasury’s preferred proposal appeared “open-ended as to time.” Id. at 3:11–12. Treasury responded that in order to comply with its “statutory mandate . . . to produce currency in the best manner to guard against counterfeiting,” and “because . . . counterfeiters are progressing so quickly in their technology,” “the standard” is to produce new currency designs every seven to ten years, id. at 10:5–12, and that Treasury planned to “fold some anti-counterfeiting changes into . . . changes made in relation to . . . this case,” id. at 10:15–17. This plan prompted the Court to observe that “a reasonable provision of an order going forward that is not a micromanagement order” would be to couple any ongoing security redesign with an accessibility redesign. Id. at 13:15–22. But see id. at 13:15–17 (Court stating that Treasury “requires new currency to be issued every seven to 10 years,” when the statute contains no hard deadlines).7 Based on this understanding—with an added caution from Treasury that the agency “has to have the ability to respond to changes, to developments and technology on the side of the counterfeiters,” id. at 20:11–13—the parties were directed to provide status reports every 180 days and to submit a new proposed order “incorporating what [the Court hopes] can be understood from the conversation [at the Status Conference].” See id. at 16:23–17:2, 22:10–15; Min. Entry (Sept. 4, 2008). Accordingly, Treasury submitted two versions of a proposed order. See Def.’s Mem. Regarding Final Order & Judgment (“Def.’s Mem. on Final Order”) at 2–3, ECF No. 88. In Treasury’s preferred version, the agency proposed that “injunctive relief is neither necessary nor appropriate,” and suggested that only a “report on progress in providing meaningful access to [] currency” should be required. Id. at 2. In the alternative version, Treasury proposed that a 7 The statutory mandate requires that, “[i]n 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 [each denomination].” 12 U.S.C. § 418. 8 meaningful access redesign be required in connection with the next redesign of each denomination of currency. Id. at 7–8. Treasury cautioned that “[t]his does not mean, however, that redesigning the currency will necessarily be chosen as the means to comply with the Court’s declaratory judgment. . . . [because Treasury is] considering all potential methods of providing meaningful access to [] currency.” Id. at 8. Indeed, the plaintiffs’ original injunctive relief request sought, inter alia, development and deployment by Treasury “of an inexpensive portable electronic device which is capable of both accurate and rapid denomination of banknotes.” FAC at 36. The Injunction Order adopted by the Court largely mirrored Treasury’s less preferred, alternative proposal, with only slight revisions. See Injunction Order ¶ 2. Treasury’s proposed language exempting the $1 bill and the upcoming version of the $100 bill from the accessibility redesign requirement, see id. ¶ 3, as well as language requiring Treasury to provide status reports every six months, id. ¶ 4, were also adopted.8 Significantly, no specific deadlines for any redesign were included. Indeed, while the plaintiffs unsuccessfully urged that reference to “scheduled” redesigns, based on Treasury’s history of redesigning currency every seven to ten years, be expressly included in the Injunction Order, see Pls.’ Resp. to Def.’s Mem. on Final Order at 7 n.3, ECF No. 89, they acknowledged the risk that if deadlines were incorporated as they initially requested, Treasury “will use court mandated time frames as a justification for a remedy which is based on external note tellers,” whereas “[r]edesigning the currency may 8 The 2008 Injunction Order did not include the $1 bill because Congress prohibited the Secretary from redesigning the $1 bill. See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sec. 6, div. D, tit. I, § 113. This prohibition remains in effect. See Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, sec. 4, div. D, tit. I, § 116. The $100 bill was not included because a new version was shortly expected to enter circulation. See U.S. DEP’T OF THE TREASURY, BUREAU OF ENGRAVING & PRINTING, U.S. CURRENCY: HISTORY OF THE BEP AND U.S. CURRENCY, https://www.moneyfactory.gov/uscurrency/history.html (last visited August 22, 2019). The most recent redesigns for each denomination are as follows: a new $20 bill began circulating on October 9, 2003; a new $50 bill began circulating on September 28, 2004; a new $10 bill began circulating on March 2, 2006; a new $5 bill began circulating on March 13, 2008; and a new $100 bill began circulating on October 8, 2013. Id. 9 require more time than would the furnishing of external note tellers,” id. at 6. See also Am. Council of the Blind v. Lew, 2017 WL 6271264, at *1 (noting that the language coupling the two redesigns was “based on a draft of a remedial order proposed by [Treasury], but the plaintiffs raised no objection to this particular provision, nor did they suggest a specific timeframe be designated”). The Memorandum Opinion accompanying the order did “not question the Treasury Department’s commitment to achieving compliance,” and also commonsensically noted that “the best-laid plans can be derailed by shifting priorities, limited resources, and the other vagaries of bureaucratic action.” Am. Council of the Blind v. Paulson, 581 F. Supp. 2d 1, 2 (D.D.C. 2008). Acknowledging that the Court “has neither the expertise, nor . . . the power[] to choose among the feasible alternatives, approve any specific design change, or otherwise . . . dictate to the Secretary of the Treasury how he can come into compliance with the law,” the Court maintained “the expertise and the authority to create goals and to hold the government to those goals.” Id. (internal quotation marks and citation omitted). While Treasury had requested the right to delay the issuance of accessible currency if a redesign was “urgently needed to counter a threat or threats of counterfeiting,” Def.’s Mem. on Final Order at 9, this “carte blanche to delay the issuance of accessible currency” was denied in light of the agency’s ability to “file a specific request, properly supported” if Treasury “needs relief from the injunction for that reason (or any reason).” Am. Council of the Blind v. Paulson, 581 F. Supp. 2d at 2. This background to the original Injunction Order illustrates that the plaintiffs were aware at the time of adoption that any redesign of currency was not on any precise schedule. See Pls.’ Resp. to Def.’s Mem. on Final Order at 7 n.3 (“Defendant is correct in stating that major redesigns are not on any ‘precise schedule.’” (emphasis in original)). The plaintiffs 10 intermittently requested that Treasury be held to more specific deadlines, but also recognized both the difficulty and drawbacks of attempting to set a deadline for the complicated goal of achieving meaningful access to currency. Id. at 6. Their request for more specific timeframes was, accordingly, considered but overruled. At its core, the 2008 Injunction Order acknowledged that Treasury was subject to two legal requirements: an obligation to ensure that U.S. currency is meaningfully accessible to the visually impaired, and an over-arching obligation to ensure that U.S. currency is secure. The 2008 Injunction Order instructed Treasury to accomplish both redesigns simultaneously, but recognized that the means of complying with both legal obligations were subject to some degree of uncertainty. This order has remained in place, without modification, for more than a decade—a period marked by constructive attention to the accessibility issue by Treasury as well as adoption of a number of steps to make U.S. currency more accessible to the visually impaired. See Am. Council of the Blind v. Mnuchin, 878 F.3d at 364–65 (recognizing that “[s]ince 2011, the Bureau [of Engraving and Printing] has produced tangible results” and noting “all denominations include large numerals and some denominations . . . include high-contrast numerals. . . . [the Bureau] created and produced free currency readers. . . . [and] also developed free currency-reading applications for mobile phones”). D. Treasury Adopts a Three-Pronged Approach to Providing Meaningful Access to Currency and Submits Regular Status Reports Over the next three and a half years, between October 3, 2008 and June 4, 2012, Treasury submitted eight status reports. Each report detailed the steps Treasury took to gather data about the demographics of visually impaired persons, conduct focus groups, and perform “usability studies” in which “blind and other visually impaired individuals in all age categories . . . used various technologies, including foreign currency with tactile features, currency with large print 11 numerals, different-sized currency, currency with varying color and contrast features, currency readers, and cell phone technology.” See Def.’s First Status Rpt. (Feb. 27, 2009) ¶ 2, ECF No. 102. Following this course of study, Treasury published, in the Federal Register, a three- pronged approach proposed by the Bureau of Engraving and Printing (“BEP”) to provide meaningful access to currency by: (1) adding a raised tactile feature (“RTF”) to bills so that visually impaired individuals could differentiate denominations by touch; (2) continuing to add colors and large, high-contrast numerals to bills; and (3) implementing a supplemental currency- reader distribution program. See Meaningful Access to United States Currency for Blind and Visually Impaired Persons, 75 Fed. Reg. 28331-02 (proposed May 20, 2010); see also Def.’s Fourth Status Rpt. ¶ 1 (Sept. 16, 2010), ECF No. 106.9 On May 31, 2011, following public comment, the Secretary of the Treasury approved this three-pronged approach. See Def.’s Sixth Status Rpt. (Sept. 16, 2011) ¶ 2, ECF No. 108. Treasury noted that “[d]evelopment of the most appropriate tactile feature is expected to require a significant amount of time,” and it “has not yet established a timetable for the next currency redesign.” Id. ¶ 3. Regardless, Treasury indicated that “[d]evelopment of an appropriate tactile feature is a priority project at the BEP, which is currently conducting a number of feasibility studies on multiple technologies.” Def.’s Seventh Status Rpt. (Mar. 16, 2012) ¶ 2, ECF No. 109. On May 21, 2012, Treasury was “directed to file an additional status report, by June 4, 2012, explaining . . . when [it] anticipates that it will be in full compliance with the terms of the 9 Currency readers are external devices that scan and announce (through voice, noise, or vibrations) the denomination of currency; Treasury provides currency readers to visually impaired and blind individuals at no cost. See Def.’s Fourth Status Rpt. (Sept. 16, 2010) ¶ 1; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-14-823, U.S. CURRENCY: READER PROGRAM SHOULD BE EVALUATED WHILE OTHER ACCESSIBILITY FEATURES FOR VISUALLY IMPAIRED PERSONS ARE DEVELOPED (2014) (“2014 GAO Rpt.”) at 13–14; U.S. DEP’T OF THE TREASURY, BUREAU OF ENGRAVING & PRINTING, MEANINGFUL ACCESS PROGRAM: U.S. CURRENCY READER PROGRAM, https://www.moneyfactory.gov/uscurrencyreaderpgm.html (last visited August 22, 2019). 12 [Injunction Order], and whether the obligation to file status reports every six months should be modified in any way.” Min. Order (May 21, 2012).10 Treasury reiterated that its “goal is to redesign each denomination of currency every seven to ten years, primarily in furtherance of the statutory mandate to produce currency ‘in the best manner to guard against counterfeits and fraudulent alterations.’” Def.’s Supp. Status Rpt. (June 4, 2012) ¶ 2, ECF No. 111 (quoting 12 U.S.C. § 418). Noting that, as of 2012, Treasury had “not yet established a timetable for the next currency redesign,” id. ¶ 4, the agency further observed that as it “continues to develop the tactile feature to be used, [Treasury] is unlikely to have much information to report toward that end until development of the specific feature is completed,” id. ¶ 7. Consequently, Treasury recommended that its reporting obligations be reduced to once every twelve months, id. ¶ 9, which recommendation was opposed by plaintiffs, see Pls.’ Resp. to Def.’s Supp. Status Rpt. (June 2012) at 11–12, ECF No. 112, and not adopted by the Court. E. Plaintiffs’ First Motion to Modify the Injunction is Denied Shortly thereafter, on June 14, 2012, in a motion that was identical to, and filed on the same day as, their response to Treasury’s supplemental status report, the plaintiffs filed their first motion to modify the Injunction Order. See Pls.’ First Motion to Modify the Injunction Order (“Pls.’ First Mot.”), ECF No. 113.11 The plaintiffs contended that Treasury’s “failure to advise this court of even an anticipated date by which [it] will come into compliance with the law clearly demonstrates the need for more intrusive judicial supervision,” id. at 6, and that “it is now clear that the assumed contingency [of a seven- to ten-year period for redesigning currency] will not materialize, id. at 8. See also Pls.’ Reply in Supp. of First Mot. at 7, ECF No. 120 (“The 10 On March 21, 2012, following the retirement of Judge James Robertson, this case was reassigned to the undersigned Judge. See Reassignment of Civil Case, ECF No. 110. 11 The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately. Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system. 13 intended result of [the Injunction Order] has been thwarted because the expectation of issuing redesigned currency every [seven to ten] years has not materialized. These changed circumstances warrant modification of the decree.”). As relief, the plaintiffs “request[ed] that this Court mandate that the Secretary, within the next 60 days, furnish a detailed implementation plan setting forth the specific steps which will be required to come into compliance with the law, and the anticipated dates by which each of those steps will be completed” and that Treasury be ordered to “come into compliance with Section 504 by the earlier of the (a) dates set forth in [that] detailed implementation schedule . . . or (b) the date when a redesign of that denomination is next approved by the Secretary of the Treasury.” Pls.’ First Mot. at 11–12 (emphasis in original). In particular, the plaintiffs wanted the 2008 Injunction Order modified to incorporate the three-pronged strategy Treasury adopted in 2011, which specified that Treasury would add an RTF and high-contrast numerals to bills and would distribute currency readers, id. at 12–14; see supra Section I.D, and a further modification requiring “either the Secretary of the Treasury, the Director of the BEP, or one of their principal deputies, on a non-delegable basis,” to report quarterly on the agency’s progress, Pls.’ First Mot. at 15–16. Treasury opposed the plaintiffs’ proposed modifications because the plaintiffs had failed to show that “extraordinary circumstances” justified modifying the injunction, under Federal Rule of Civil Procedure 60(b)(6). Def.’s Opp’n to Pls.’ First Mot. at 6, ECF No. 115.12 First, Treasury noted that “plaintiffs’ motion seeks to relitigate proposed provisions that this Court rejected in entering its [Injunction Order],” id. at 7, including by resubmitting evidence 12 The plaintiffs disputed the applicability of Rule 60(b)(6), arguing that their motion must be analyzed under Rule 60(b)(5) or the Court’s inherent authority to strengthen an injunction. Pls.’ Reply in Supp. of First Mot. to Modify at 4–6. 14 concerning Canadian currency that the “Court was fully aware of . . . before entering the current judgment,” id. at 8. Second, Treasury argued that the “plaintiffs have presented no valid reason to alter the Court’s judgment by disconnecting assistance for the blind and visually impaired from the timing of the next redesign for purposes of counterfeit deterrence.” Id. at 9. Additionally, Treasury posited that “‘a detailed implementation plan with anticipated dates’ would be unworkable and would unduly intrude into the Secretary’s discretion in designing the currency.” Id. at 9–10. Further, Treasury had “encountered significant challenges with the $100 bill. . . . [because] [s]everal new anti-counterfeiting features and other advanced features in the redesigned $100 note subsequently caused significant manufacturing issues that the BEP did not foresee.” Id. at 10–11 (citation omitted). In light of these changes, Treasury argued that “the lapse of the [seven- to ten-] year period since the last redesign does not affect the validity of the [Injunction Order].” Id. at 11 (footnote omitted). In rebutting the plaintiffs’ call for a detailed implementation plan, Treasury highlighted the fact that redesigning the currency, especially to include a tactile feature, is a complex, multi- step process involving many different entities, including the BEP and the Department of the Treasury, the Federal Reserve Board of Governors, the Currency Technology Office of the Federal Reserve System, and the U.S. Secret Service []. Completing this process successfully also requires balancing many considerations, including the needs of blind and other visually impaired persons; the efficiency and economy of the manufacturing process; the needs of the Federal Reserve System as to durability, usability, and consistency; the needs of currency users and the banknote processing community; and the statutory mandate to produce currency in the best manner to guard against counterfeiting []. Id. at 12–13 (internal citations and quotation marks omitted). Thus, Treasury posited that “[i]ncorporating a ‘detailed . . . plan with anticipated dates’ would inevitably lead to judicial micromanagement involving such mundane matters as why a given meeting among the various entities had to be rescheduled.” Id. at 13 (alterations in original). 15 Treasury also vigorously opposed the plaintiffs’ request to incorporate the agency’s 2010 three-pronged plan for coming into compliance with Section 504 into the Injunction Order. Treasury argued that the existence of tactile features on other currencies had been studied but “does not mean that a satisfactory tactile feature can easily be included on U.S. currency,” id. at 12 (emphasis in original), and, further, that “incorporating [the Secretary’s] decision [to adopt the three-pronged plan] into a judgment of this Court would necessarily convert it into the Court’s decision. . . . [so] [t]he Secretary would no longer have discretion regarding the design of currency,” id. at 15 (emphasis in original). Moreover, no Court had ever held “that the Rehabilitation Act requires the Secretary to undertake all three of the methods he has chosen to assist the blind and visually impaired,” yet incorporating the three-pronged approach “would inaccurately connote that all three of the[] [prongs] are required by the Rehabilitation Act.” Id. Finally, Treasury urged rejection of plaintiffs’ “overreaching demand for the Secretary of the Treasury or other high official to sign a report every three months,” particularly since the agency is “proceeding apace to comply with this Court’s judgment.” Id. at 16. The plaintiffs’ first motion to modify the Injunction Order was denied without prejudice on the grounds that “the plaintiffs have not shown any extraordinary circumstances justifying a change in the existing semi-annual report obligation, or any other amendment of Judge Robertson’s [Injunction Order].” Order dated Aug. 15, 2012 at 1, ECF No. 121 (internal citations, alterations, and quotation marks omitted). Treasury was ordered to “continue to file semi-annual reports,” “work diligently and expeditiously to fulfill its obligations under the [Injunction Order],” and “promptly inform the Court of any additional major delays in implementing the next major currency redesign—in supplementary updates to the semi-annual reports if necessary—and be as precise as possible in its semi-annual reports about the timeline 16 for fulfilling its obligations under the [Injunction Order].” Id. at 1–2. F. Treasury Anticipates that RTF Bills will Begin Circulating in 2020, Although RTF Testing is Slightly Delayed Following the denial of the plaintiffs’ first motion to modify the Injunction Order, Treasury continued its efforts to test RTF and to promote currency readers. Over the next three years, between August 15, 2012 and September 16, 2015, Treasury submitted nine status reports and one White Paper and began projecting that RTF bills would begin circulating in 2020. In its ninth status report, Treasury indicated that three different RTF application methods had been tested and one eliminated, Def.’s Ninth Status Rpt. (Mar. 18, 2013) ¶ 2, ECF No. 123, and that the agency continued to make progress in implementing its currency reader program and developing mobile applications for scanning currency, id. ¶¶ 7, 8. Treasury also, in 2013, provided a “White Paper Regarding Meaningful Access to U.S. Currency for Blind and Visually Impaired Individuals” which BEP submitted to the Senate Committee on Appropriations on June 27, 2013. See Def.’s Supp. Status Rpt. (July 3, 2013), ECF No. 124; id., Att. 1, White Paper Regarding Meaningful Access (“2013 White Paper), ECF No. 124-1. This White Paper was the first time Treasury projected that “the first redesigned denomination containing a tactile feature, an improved large, high-contrast numeral, and new security features” would be released for circulation in 2020, with the $10 bill predicted to be the first new note circulated based on a security analysis and specific attributes of that bill. 2013 White Paper at 3–4 (“The $10 note was . . . selected because it is a transactional note used frequently in commerce and it has a low production volume, which will allow for the smoothest transition of a new complex design to manufacturing.”). Treasury cautioned, however, that this projection “depends on much more than just the successful design and integration of a tactile feature. The release date is also dependent on technology/security feature development, production issues, and other 17 unanticipated developments.” Id. at 3. With regards to the RTF method, Treasury discussed efforts to test “for durability and producibility, features using special inks and other materials applied to the surface of the substrate, features embedded into the substrate, features that involve alterations to the substrate, and features using intaglio print techniques,” id. at 6 (footnote omitted), with intaglio defined as “a printing technique in which an image is incised into a surface and the incised lines hold the ink for transfer to the substrate under pressure,” id. at 6 n.4. “BEP chose not to directly adopt tactile features used by other countries given the higher durability requirements for the worldwide circulation of Federal Reserve notes and the extended life of those notes in circulation.” Id. at 6. To assess the needs of visually impaired individuals, Treasury engaged in a number of community outreach and research efforts, including usability and acuity studies, which “involve asking users (blind and other visually impaired persons) to interact with various potential tactile features,” Def.’s Tenth Status Rpt. (Sept. 16, 2013) ¶ 2, ECF No. 125, hosting a forum on incorporation of an RTF, id. ¶ 3, and meeting with “representatives of eighteen domestic and international cash handling equipment manufacturers,” id. ¶ 4. In September 2014, Treasury indicated that “[r]ecent events have affected some of the interim benchmark dates in the development of a tactile feature,” because a subcommittee “declined to approve narrowing the field [of RTF technologies] to the single recommended technology.” Def.’s Twelfth Status Rpt. (Sept. 16, 2014) ¶ 3, ECF No. 127. Shortly after this report, Treasury submitted a copy of the U.S. Government Accountability Office’s report to Congressional Committees on the U.S currency reader program. Def.’s Notice of Filing, Att. 1, 2014 GAO Rpt., ECF No. 129-1. This report found that “BEP’s plans to evaluate the effectiveness of [its] new [currency reader] program are incomplete, and without a complete 18 evaluation, BEP cannot determine the program’s effectiveness.” 2014 GAO Rpt. at “GAO Highlights”. Acknowledging that BEP has “[m]ade limited progress in developing a raised tactile feature,” the GAO report noted that development of an RTF was “over a year behind schedule,” id., “the Federal Reserve has raised concerns about” “the potential cost impact of a tactile feature and whether the extent of technological changes since the [Injunction Order] could provide alternative options to [the three-pronged approach].” Id. at 23. Thus, “there was a discussion of the option to provide access to currency without adding a tactile feature, [although] no decision has been made.” Id. at 23–24. The GAO noted the importance of the currency reader program in serving as “an effective interim step to provide access to currency for visually impaired persons” as “[e]ven when a tactile feature is introduced, notes with a tactile feature will co-circulate with notes that do not have a tactile feature.” Id. at 24. In response to Treasury’s September 2014 Status Report, the plaintiffs requested that additional information be ordered produced by Treasury since the Secretary’s September 2014 Status Report “fail[ed] to adequately explain the impact of the . . . delay in approving the application method to be used in the manufacture of a tactile feature,” and raised concern that Treasury’s “representation . . . that the BEP remains on target for circulating accessible currency by 2020 appears to be both inaccurate and misleading.” Pls.’ Mot. for Order & Mem. in Supp. at 3, ECF No. 128.13 “Indeed, based upon the prior testimony of BEP’s officials, the reengineering process which will be required to provide the Secretary with the capability to manufacture a tactile feature will likely take at least five years from the date of final approval of the application materials and methods to be used.” Id. at 7–8 (citing declarations to this effect). The plaintiffs pointed to the 2013 White Paper, which specified “nine interim steps, with anticipated dates of 13 The plaintiffs’ motion and memorandum are paginated separately, but were not docketed separately. Accordingly, page numbers correspond to those electronically assigned by the CM-ECF system. 19 completion for each step,” and argued that the agency’s incorporation of this White Paper into its July 2013 Status report “necessarily imposes upon the Secretary a concomitant obligation to keep that schedule up to date.” Pls.’ Reply in Supp. of Mot. for Order at 2, ECF No. 131. The plaintiffs also called attention to Treasury’s failure to mention “the highly significant fact that the Federal Reserve has expressed significant reservations pertaining to the inclusion of a tactile feature, or that discussions are ongoing between the Federal Reserve and the BEP which may result in the elimination of that feature.” Id. at 6. Treasury, however, reiterated that “[d]espite the concerns expressed by the Federal Reserve, [Treasury] remains committed to the existing three-pronged plan for complying with [the Injunction Order]. Def.’s Surreply in Opp’n to Pls.’ Mot. for Order at 1, ECF No. 133. The plaintiffs’ motion for an order was denied because “although recent events have affected some of the interim benchmark dates in the development of a tactile feature, [Treasury] does not believe that those events will impact the target date for the ultimate production of redesigned currency with a tactile feature” and although the plaintiffs’ “motion requested additional information regarding the reliability of this statement in light of the recent events, . . . [Treasury] provided such information in the [2014] GAO Report.” Min. Order (Nov. 3, 2014) (internal quotation marks, alterations, and citations omitted). “Nevertheless, the Court remind[ed] [Treasury] of its obligations to ‘be as precise as possible in its semi-annual reports about the timeline for fulfilling its obligations’” including by reporting major delays. Id. (quoting Order dated Aug. 15, 2012). Treasury continued to test various RTF application methods, including by submitting three versions to “high-speed cash machine testing.” Def.’s Fourteenth Status Rpt. (Sept. 16, 2015) ¶ 2, ECF No. 138. As a result of this testing, Treasury eliminated one RTF application method, and began to focus on the two remaining ones: intaglio, which uses engraved plates and 20 a high-pressure printing press to force paper into an engraved plate and create an RTF, and coated-embossed, a process in which a coating is applied to the location of the RTF, then matching dies are pressed together on either side of the note to create the feature. See id.; Def.’s Supp. Status Rpt. (Dec. 20, 2018) ¶ 6, ECF No. 169 (explaining these two processes more fully). Treasury planned to print six samples incorporating each of the two RTF application methods for testing in November 2015, including testing by Banknote Equipment Manufacturers, a group that “produce[s] a variety of devices that process U.S. currency.” Def.’s Fourteenth Status Rpt. (Sept. 16, 2015) ¶ 3. Further large-group acuity testing was scheduled for April 2016, after which point Treasury anticipated that the final RTF application method would be selected. Id. ¶ 4. Based on this schedule, Treasury’s “target date for producing currency with a tactile feature remain[ed] the year 2020.” Id. G. New Counterfeiting Technology Delays Security Redesign As Well As Meaningful Access Redesign Five months later, however, in February 2016, Treasury submitted notice “of developments that have recently occurred in the timing of the next redesign of U.S. currency” and “will necessarily affect when BEP begins producing currency with a tactile feature, for reasons unrelated to the development of such feature.” Def.’s Supp. Status Rpt. (Feb. 22, 2016) ¶ 2. In particular, Treasury had “recently learned of significant developments in counterfeiting technology that bear upon the long-term effectiveness of the security features which were anticipated for the new $10 note.” Id. ¶ 5. Thus, “new, additional security features must be created for the next redesign of the currency.” Id. “The research and development necessary to create these new features will require a significant amount of time, thus delaying the development and production of the next redesign beyond the year 2020.” Id. (emphasis added). Although Treasury predicted that it could provide a new target date “within the next couple of 21 months,” it cautioned that “because this [redesign] effort will require innovation and invention, the target date will reflect significant assumptions.” Id. ¶ 6. At the same time, Treasury “continues to expect that [RTF] will be ready for incorporation into the next redesign.” Id. ¶ 7. Further, currency reader programs and mobile applications “will continue to be offered as the BEP develops the new anti-counterfeiting features that have become necessary to keep the nation’s currency secure.” Id. ¶ 8. In May 2016, Treasury explained that, in light of the redesign delay necessitated by “significant developments in counterfeiting technology,” Def.’s Supp. Status Rpt. (May 12, 2016) ¶ 1, BEP was working closely with the Federal Reserve “to accelerate work on the next family of notes with the aim that they circulate as quickly as possible, consistent with security requirements,” id. ¶ 2. Treasury further advised that BEP “anticipates that the first notes incorporating the new security features will be ready for production no later than 2026,” id., although “[t]his timeline is subject to revision based on a variety of factors, most notably security concerns and the pace of technological advancements,” id. H. Plaintiffs’ Second Motion to Modify the Injunction is Denied Treasury’s announcement that the security and meaningful access redesigns would be delayed prompted the plaintiffs to file their second motion to modify the injunction. As the plaintiffs noted, had the seven- to ten-year “goal” of security redesigns been met, “the $20 note would have been redesigned between 2010–2013, the $50 note between 2011–2014, the $10 note between 2013–2016, and the $5 note between 2015–2018. The Secretary has now furnished a new estimated date of 2026 to redesign the $10 note, and has not provided any estimated dates for redesign of the remaining denominations.” Pls.’ Second Mot. at 3. “The magnitude of the delays in this case,” according to the plaintiffs, “clearly constitutes a changed circumstance 22 warranting modification of the [Injunction Order]” because its “intended result . . . has been thwarted.” Id. at 14. Specifically, the plaintiffs now sought to “set a deadline of December 31, 2020” to provide meaningful access to the $10 bill, and to order Treasury “to make the remaining denominations [not including the $1 bill] of currency accessible to the blind and visually impaired not later than December 31, 2026.” See id. at 4–5 & n.1. The 2020 deadline for meaningful access to the $10 bill urged by the plaintiffs corresponded to the target date Treasury set in its 2013 White Paper. See id. at 7. As support for modifying the 2008 Injunction Order by altering its core principle of improving access in tandem with redesigns to combat counterfeiting, the plaintiffs highlighted that the redesign date “was postponed until 2026 for reasons that are unrelated to the production of [RTF]” and that Treasury “has not indicated any impediments to adding a tactile feature by 2020.” Id. at 16–17. Although acknowledging that the BEP Director had stated, in a July 17, 2012 declaration, that “disconnecting the timing of the counterfeiting and accessibility redesigns would add considerable complexity and additional expense,” the plaintiffs discounted this concern as “mooted” because “[a]n accessibility redesign in 2020 would be six years apart from a security redesign in 2026.” Id. at 20–21 (internal quotation marks, citation, and emphasis omitted) (quoting Second Supp. Decl. of Larry R. Felix, Director of BEP ¶ 3, ECF No. 119-1). Moreover, the plaintiffs discounted Treasury’s “argument pertaining to the additional cost and complexity of conducting two separate redesigns [as] undocumented,” id. at 21, and emphasized that, in their view, “[a]n external device cannot serve as a substitute for a system through which a visually impaired person can independently denominate banknotes using his or her own senses,” id. at 23. Although “[t]he intent underlying th[e] [Injunction Order] was to prod the Secretary into making [U.S.] currency accessible to the blind and visually impaired,” id. at 37, the 23 plaintiffs expressed concern that Treasury “is now using the [Injunction Order] as a justification for delaying a meaningful access redesign,” id. Speculating that Treasury might seek “permission to conduct an urgent counterfeiting redesign even in the absence of an accessibility redesign,” id., the plaintiffs posited that “if this Court would amend the order to allow the government to undertake an urgent counterfeiting redesign, it should be no less willing to amend the order to mandate meaningful access by a specific deadline,” id. at 38. In opposing the plaintiffs’ motion, Treasury argued that “[i]n entering its [Injunction Order], the Court recognized the efficiency of allowing BEP to incorporate any changes to the currency and next round of security features into one redesign. Plaintiffs’ modification would eliminate that efficiency.” Def.’s Opp’n to Pls.’ Second Mot. at 17, ECF No. 148; id. at 21 (same). Modification was unnecessary, Treasury reasoned, because the agency “has every incentive to produce a redesign as quickly as possible, because of the ever-growing threat of counterfeiting.” Id. at 1; see also id. at 15 (“This Court chose to link providing meaningful access with changing the currency to guard against counterfeiting not simply as a matter of convenience, but in recognition of the many factors the Secretary must consider in designing currency, including the statutory command to guard against counterfeiting.”). As the “Court and the parties understood, at the time of the [Injunction Order],” id., the “timing of . . . redesigns and the intervals between them depend, in large measure, on changes in counterfeiting technology and emerging counterfeiting threats. . . . [which] require BEP to work carefully but quickly in producing redesigns, so that . . . currency is not left vulnerable to counterfeiting,” id. at 2. As for RTF methods, Treasury highlighted that “the development of an appropriate tactile feature was always expected to require a significant amount of time,” especially where raised 24 features used by other countries “either are too low to be usable even when new, or wear down so much in circulation as to become unusable fairly quickly.” Id. at 6–7 (internal quotation marks and citation omitted). Considering Treasury’s “strong and ongoing commitment to adding a[n] [RTF] to the nation’s currency,” “none of the considerations that supported linking the completion of that effort to the redesign of each denomination ha[s] changed.” Id. at 12.14 In arguing that decoupling the two redesigns would not serve the public interest, Treasury explained that currency changes “impose significant costs on private businesses” and “[r]equiring the Secretary to redesign each denomination twice in the near future, . . . once to incorporate a tactile feature . . . and again to update the anti-counterfeiting features[,] would both substantially increase private-sector costs and create a very real risk of confusion for businesses and the broader public.” Id. at 20. Successful completion of any redesign “process . . . requires balancing many considerations, including the needs of blind and other visually impaired persons; the efficiency and economy of the manufacturing process; the needs of the Federal Reserve System as to durability, usability, and consistency; the needs of currency users and the banknote processing community; and the statutory mandate to produce currency in the ‘best manner’ to guard against counterfeiting.” Id. at 24. (citation omitted) (quoting 12 U.S.C. § 418). The plaintiffs’ motion was denied.15 This Court noted that the original Injunction Order “did not set a specific deadline for compliance with Section 504,” but instead “paired the 14 Treasury also argued that “the measures already implemented . . . now enable the visually impaired to independently identify the denomination of paper currency,” id. at 12 (internal quotation marks, citation, and alteration omitted), and indicated that, “[a]t an appropriate time,” Treasury “may file a motion to vacate the [Injunction Order], although [Treasury] still intends to add a tactile feature to the currency,” id. at 13 n.3. 15 The plaintiffs’ motion was analyzed under both Rule 60(b)(5) and Rule 60(b)(6), rather than the Court’s inherent equitable authority, because “whichever standard applies, the D.C. Circuit has explained that as a practical matter, it makes little difference whether the district court resolves a motion to modify a consent order under Rule 60 or under its equitable authority as the standard for each is substantially the same. Am. Council of the Blind v. Lew, 2017 WL 6271264, at *1 n.1 (internal quotation marks, alterations, and citations omitted) (citing Pigford v. Johanns, 416 F.3d 12, 16 (D.C. Cir. 2005); Cook v. Billington, No. Civ.A 82-0400(GK), 2003 WL 24868169, at *2– 3 (D.D.C. Sept. 8, 2003); New York v. Microsoft Corp., 531 F. Supp. 2d 141, 169 (D.D.C. 2008)). 25 development of features to improve meaningful access to currency with the ongoing, and statutorily required, redesigns of currency to combat counterfeiting.” Am. Council of the Blind v. Lew, 2017 WL 6271264, at *2. Despite the delays in implementing “some features that will improve access to currency,” the Court declined to “upset the balance struck in the [Injunction Order].” Id. The delays neither rendered the Injunction Order “detrimental to the public interest” under Rule 60(b)(5) nor were they “‘extraordinary circumstances’ that would justify a modification under the higher standard of Rule 60(b)(6).” Id. (internal quotation marks and citation omitted). Moreover, since the 2008 Injunction Order “substantial progress has been made in improving access to currency for the blind and visually impaired,” id., including progress in designing an RTF, in “adding large, high-contrast numerals and different colors to each denomination,” id. (internal quotation marks and citation omitted), and in implementing “a currency reader distribution program,” id.; see also Def.’s Opp’n to Pls.’ Second Mot. at 19 (“BEP has secured and analyzed a comprehensive contractor study; conducted numerous instances of feasibility testing, usability testing, acuity testing, and manufacturing trials; . . . helped prepare manufacturers of cash handling equipment for the incorporation of a tactile feature; and sought to address concerns expressed by other federal government stakeholders.”); id. at 6 (“BEP has been working diligently to implement these measures, including the development of a usable and durable tactile feature for the currency. Since 2008, BEP has added high-contrast numerals to the $5, $10, $20, $50, and $100 notes, including different colors [added] to both the $5 and $100 notes. BEP will add colors to all future redesigns. BEP has also made free currency readers available to every individual who requests them. . . . [and] has monitored and deployed technologies that have emerged since the [Injunction Order].”); id. at 10 (discussing the full nationwide distribution of the “iBill,” a free currency reader, and Treasury’s 26 efforts to publicize it). While “recogniz[ing] that this progress is not as significant as a released redesigned note,” “decoupling improvements for the blind and visually impaired . . . from the continuing efforts by BEP to redesign currency to combat counterfeiting[] could create unnecessarily duplicative work and potentially increase costs for both the government and the private sector.” Am. Council of the Blind v. Lew, 2017 WL 6271264, at *2 (citing Def.’s Opp’n to Pls.’ Second Mot., Att. 1, Decl. of Michael Wash (“2016 Wash Decl.”) ¶ 15, ECF No. 148-1 (explaining that redesigning “each denomination twice in the near future . . . once to incorporate [tactile features] and again to incorporate new visual designs and enhanced security features to continue to minimize counterfeiting—would both substantially increase private sector costs and create a very real risk of confusion for both businesses and the broader public”)). In other words, “plaintiffs’ proposed modification might turn out to be more detrimental to the public interest than the current order in effect.” Id. (emphasis in original). I. D.C. Circuit Remands for “[B]etter [S]upport” of Court’s “[F]indings [S]upporting [D]enial [O]f [M]odified [I]njunctive [R]elief” The plaintiffs appealed the denial of their second motion to modify the injunction. Analyzing the motion under Federal Rule of Civil Procedure 60(b)(5), the D.C. Circuit reversed and remanded to obtain “[a] more concrete estimate of the financial burden of incorporating a raised tactile feature,” which the Circuit described as “necessary,” even though Treasury had told the Circuit “we don’t know exactly what the costs are.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 369 (internal quotation marks omitted) (quoting Treasury Secretary’s counsel at oral argument before D.C. Circuit, Transcript of Oral Argument, Am. Council of the Blind v. Mnuchin, D.C. Cir. No. 17-5013 (Oct. 19, 2017) at 20:55–21:05). The D.C. Circuit found that, in denying plaintiffs’ proposed modification of “forcing an earlier redesign of currency separate 27 from the planned anti-counterfeiting redesign,” id. at 367, this Court “did not abuse its discretion by considering the costs to the government” or “private sector costs,” id. at 367–68, and further that the “added financial burden of decoupling the timelines may very well render the Secretary’s ongoing violation of the Rehabilitation Act—which the parties reasonably expected to be cured in one decade but under the Secretary’s current timeline will stretch into a second decade, and most likely a third—equitable,” id. at 368. Nevertheless, the D.C. Circuit deemed “without adequate evidentiary support,” “insufficient,” “hardly precise,” not “concrete,” “unclear,” and “guesstimates” projections that private sector costs to upgrade equipment could be $3 to $4 million, and that the “investment required to prepare” Treasury to produce banknotes with an RTF would be $5 million to $66 million and that “annual maintenance costs” would be up to $12 million, id. at 368–70. The Circuit opined that “the investment costs . . . specific to producing a raised tactile feature” will be “incurred whenever it is put to use without regard to coupling/decoupling,” id. at 369, and “we do not have any data on the difference” to the private sector between two redesigns compared to a “single coupled change,” id. at 370. The Circuit recognized that “decoupling the timelines and producing banknotes with a raised tactile feature sooner than 2026 (at the earliest) may lead to more annual maintenance costs and therefore more total costs,” id. at 369, would require Treasury “to change printing plates twice rather than once if a raised tactile feature is introduced before the next planned currency redesign,” id., which “may well be more inefficient,” id., and that “[t]he costs of two redesigns will presumably [] be higher than the cost of one redesign,” id. Yet, the Circuit sought more concrete evidence of this “difference in costs between the two timelines,” id., stating that this “financial difference is crucial to weighing the equities of the plaintiffs’ requested modification,” id. At the same time as concluding “the district court needs 28 more concrete estimates of the costs that matter,” id. at 371, the Circuit was aware not only that Treasury was unable to provide such concrete costs since no RTF technology had been selected, id. at 365 n.6, 368–70, but also that “even banking industry representatives say that the industry cannot make reasonable estimates until the [BEP] announces the specific height and application method of the tactile feature,” id. at 370 (internal quotation marks and citation omitted). On remand, the parties were directed to propose a schedule for further proceedings and to appear for a status conference on March 14, 2018. See Min. Order (Feb. 23, 2018). In response, the parties agreed that the plaintiffs would file a renewed motion to modify, mooting their second motion, see Mar. 2018 JSR ¶ 1, and the plaintiffs indicated that they might seek discovery, id. ¶ 4, although no such discovery motion ever materialized. The parties disclaimed the necessity of any status conference, id. ¶ 6, and thus the scheduled status conference was cancelled, Min. Order (Mar. 7, 2018). During the pendency of the appeal to the D.C. Circuit, Treasury had continued testing on RTF technologies. Specifically, Treasury “recruit[ed] . . . approximately fifty-five focus group participants” for testing to “rectify the accuracy and durability concerns that have so far been associated with tactile features.” Def.’s Seventeenth Status Rpt. (Mar. 16, 2017) ¶ 2, ECF No. 155. This “testing showed significant variation in the accuracy rates among participants.” Def.’s Eighteenth Status Rpt. (Sept. 18, 2017) ¶ 3, ECF No. 156. Treasury subsequently provided notice that it had “settled on a four-position rectangle shape for the [RTF], . . . but ha[d] not yet chosen between the two remaining methods of application (Intaglio or Coated-embossed).” Def.’s Nineteenth Status Rpt. (Mar. 16, 2018) ¶ 2, ECF No. 159. To inform this RTF selection, Treasury anticipated holding durability testing on the different RTF methods from February to April 2018, focus groups in March and April 2018, bank equipment testing from March through 29 May 2018, critical manufacturing testing from April through August 2018, and further large- scale testing with visually impaired individuals in July and August 2018. Id. ¶ 3. Treasury also planned to analyze how the RTF would interact with the rest of the note in 2019, enabling it to make a final decision as to which RTF application method to select by late 2019. Id. Finally, Treasury updated the sequence of redesigns “[b]ased on an assessment of . . . emerging counterfeiting threats,” although the $10 note was still expected to be redesigned first, and to be “ready for production no later than 2026.” Id. ¶ 4. J. Plaintiffs File Third Motion to Modify the Injunction Two months after the mandate issued, the plaintiffs filed the pending motion to modify the injunction with the identical relief as their second motion. Once again, the plaintiffs request that Treasury be ordered to provide meaningful access to the $10 bill by December 31, 2020, and to the remaining denominations of currency, aside from the $1 bill, by December 31, 2026. Pls.’ Third Mot. at 4 & n.1. Treasury objects that, inter alia, (1) redesign of the currency for counterfeit deterrence is “not on any precise schedule,” Def.’s Opp’n to Pls.’ Third Mot. at 16, ECF No. 164 (internal quotation marks and citation omitted); (2) measures implemented already enable identification of currency for the visually impaired, id.; and (3) given the costs of testing, implementation, and publicity necessary to implement and educate users on redesigned currency, decoupling the redesign of currency to provide meaningful access from the redesign to improve security would not be in the public interest, id. at 16, 21, essentially the same conclusions reached by the Court in 2008 and in denying the plaintiffs’ first and second motions to modify the injunction. Although the arguments regarding this pending motion are similar to those raised in conjunction with the plaintiffs’ second motion, the record has changed and expanded 30 substantially. The plaintiffs’ second motion to modify the injunction was supported by a single declaration and six exhibits that generally concentrated on (1) a 2009 report studying methods of providing meaningful access to the visually impaired,16 (2) Treasury’s plans to add Harriet Tubman to the $20 bill,17 and (3) perceived deficiencies with the iBill currency reader.18 By contrast, as support for their third motion, the plaintiffs incorporated the studies and declarations previously submitted, see, e.g., Pls.’ Third Mot. at 12, 20 n.9, 21–22, supplemented by: (1) nine new declarations from persons with visual impairment attesting to how the lack of meaningful access to currency prevents them from engaging in everyday retail transactions or employment or volunteer opportunities, and why they find currency readers and mobile applications to be an insufficient solution;19 (2) a 2016 report from the U.S. Bureau of Labor Statistics indicating that retail salespersons and cashiers were the occupations with the highest employment in May 2015, in order to demonstrate that “the design of currency . . . creates significant obstacles to employment opportunities requiring the handling of cash,” leaving persons with visual impairment “largely shut out from the second largest occupation in the United States,” id. at 12–13;20 (3) information on federal supplemental security income (“SSI”) 16 See Pls.’ Second Mot., Ex. 1, ARINC, Final Report: Study to Address Options for Enabling the Blind and Visually Impaired Community to Denominate U.S. Currency (July 2009) (“ARINC 2009 Study”), ECF No. 142-2. 17 See Pls.’ Second Mot., Ex. 2, Nick Timiraos, Q&A: Jacob Lew Explains His Currency Redesign Plan, The WALL ST. J. (Apr. 21, 2016, 10:29 AM), ECF No. 142-3 (discussing interview with Jacob Lew regarding “his long- awaited plan for a sweeping currency redesign that will put Harriet Tubman on the $20 bill”); id., Ex. 3, An Open Letter from Secretary Lew (Apr. 20, 2016), ECF No. 142-4 (discussing decision to put Harriet Tubman on the $20 bill). 18 See Pls.’ Second Mot., Ex. 4, Decl. of Eric Bridges (“Bridges Decl.”) ¶ 4, ECF No. 142-5 (detailing why the iBill currency reader “is of little use in a public setting”); id. Ex. 5, iBill Talking Banknote Identifier, ECF No. 142-6 (on file in Chambers); id., Ex. 6, Orbit Research, iBill Users Manual (2014), ECF No. 142-7; id., Ex. 7, BEP Solicitation/Contract/Order for Commercial Items, ECF No. 142-8. 19 See Pls.’ Third Mot., Ex. 1, Decl. of Rev. Helen Jo Taliaferro (“Taliaferro Decl.”), ECF No. 160-2; id., Ex. 2, Decl. of Mark Richert (“Richert Decl.”), ECF No. 160-3; id., Ex. 3, Decl. of Jeff Thom (“Thom Decl.”), ECF No. 160-4 id., Ex. 4, Decl. of Kim Charlson (“Charlson Decl.”), ECF No. 160-5; id., Ex. 7, Decl. of Paul Mims (“Mims Decl.”), ECF No. 160-8; id., Ex. 8, Decl. of Ernie Udo (“Udo Decl.”), ECF No. 160-9; id., Ex. 15, Decl. of Mark Adreon (“Adreon Decl.”), ECF No. 160-16; id., Ex. 16, Decl. of Linda Schneider (“Schneider Decl.”), ECF No. 160-17; id., Ex. 17, Decl. of Hannah Fairbairn (“Fairbairn Decl.”), ECF No. 160-18. 20 See Pls.’ Third Mot., Ex. 5, U.S. Bureau of Labor Rpt. on Retail Salespersons (Mar. 2016), ECF No. 160-6. 31 payments to support the claim that “SSI payments would be reduced if the blind and visually impaired were able to obtain employment in occupations involving the use of currency,” id. at 13;21 (4) five reports or press releases from the Federal Reserve and the U.S. banking industry showing “astronomical” resources, such that the “impact on the government and the private sector of modifying the injunctive decree [would be] relatively mute,” id. at 13–14;22 (5) the transcript from the oral argument in this case before the D.C. Circuit in October 2017 as evidence that Treasury “[k]eeps [s]witching [p]ositions” on whether currency readers already provide meaningful access to U.S. currency, id. at 16;23 and (6) the BEP’s performance plan for Fiscal Year 2018 which reflects that “demand for these devices has been well below expectations,” id. at 28, and a report from the Federal Reserve on access to mobile financial services which the plaintiffs cite for the proposition that “smartphone applications are likely to be of little benefit to large numbers of elderly blind and visually impaired persons,” id. at 31.24 Likewise, Treasury submitted substantially more information in opposing the third motion than the second. In connection with the plaintiffs’ second motion, Treasury submitted: (1) two declarations from Treasury officials describing the RTF testing process, the currency reader program, and the development of mobile applications;25 and (2) an excerpt from a 2004 deposition of plaintiff Patrick Sheehan, who has limited vision, regarding how larger, high- 21 See Pls.’ Third Mot., Ex. 6, U.S. Social Security Administration, Federal Benefit Rates, ECF No. 160-7. 22 See Pls.’ Third Mot., Ex. 9, Federal Reserve Board, Annual Report 2016, ECF No. 160-10; id., Ex. 10, Federal Reserve Board, 2018 Currency Budget, ECF No. 160-11; id., Ex. 11, Press Release, Federal Reserve Board, Federal Reserve Board announces Reserve Bank income and expense data and transfers to the Treasury for 2017 (Jan. 10, 2018), ECF No. 160-12; id., Ex. 12, Federal Reserve Bank of New York, Quarterly Trends for Consolidated U.S. Banking Organizations: Third Quarter 2017, ECF No. 160-13; id., Ex. 13, Net Income of FDIC- Insured Commercial Banks, ECF No. 160-14. 23 See Pls.’ Third Mot., Ex. 14, Transcript of Oral Argument, Am. Council of the Blind v. Mnuchin, D.C. Cir. No. 17-5013 (Oct. 19, 2017), ECF No. 160-15. 24 See Pls.’ Third Mot., Ex. 18, U.S. Dep’t of Treasury, Bureau of Engraving & Printing, Congressional Justification for Appropriations FY 2018, ECF No. 160-19; id., Ex. 19, Federal Reserve Board, Consumers and Mobile Financial Services 2016, ECF No. 160-20. 25 See 2016 Wash Decl.; Def.’s Opp’n to Pls.’ Second Mot., Att. 2, Decl. of Teresa Fynes (“First Fynes Decl.”), ECF No. 148-2. 32 contrast numerals change his ability to denominate currency and exploring his use of a closed circuit television to count money in his role as Treasurer for his chapter of the American Council of the Blind.26 By contrast, in opposing the plaintiffs’ third motion, Treasury submitted: (1) four declarations from Treasury officials, which collectively described the RTF testing process, currency reader program, and drawbacks of various RTF methods;27 (2) two declarations, one from the Federal Reserve and one from the U.S. banking industry, describing the testing necessary to ensure that RTF is compatible with high-speed currency-processing machines and 26 See Def.’s Opp’n to Pls.’ Second Mot., Att. 3, Excerpts from Dep. of Patrick M. Sheehan, ECF No. 148-3. 27 See Def.’s Opp’n to Pls.’ Third Mot., Att. 1, 2016 Wash Decl., ECF No. 164-1; id., Att. 2, Second. Decl. of Teresa Fynes (“Second Fynes Decl.”), ECF No. 164-2; id., Att. 3, Decl. of Leonard R. Olijar (“First Olijar Decl.”), ECF No. 164-3; id., Att. 4, Decl. of Michael Johnston (“First Johnston Decl.”), ECF No. 165-1. The 2016 Wash Declaration was resubmitted, with no updates, despite the D.C. Circuit’s conclusion that this declaration “tell[s] us nothing about the difference in costs between the two timelines. . . . [which] financial difference is crucial to weighing the equities of the plaintiffs’ requested modification.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 369. Consequently, Treasury was directed to explain why this declaration should not be stricken from the record. Order Directing the Parties to Answer Questions (Question 15). Treasury explained that “additional declarations and responses to the Court’s questions [could] be read in conjunction with the Wash declaration and complete the record in this matter.” Def.’s Answers (Question 15). Indeed, Treasury updated these declarations when responding to the Court’s questions. See, e.g., Def.’s Answers, Att. 1, Second Decl. of Leonard R. Olijar (“Second Olijar Decl.”), ECF No. 179-1; id., Att. 2, Third Decl. of Teresa Fynes (“Third Fynes Decl.”), ECF No. 179-2; id., Att. 3, Second Decl. of Michael Johnston (“Second Johnston Decl.”), ECF No. 179-3; id., Att. 4, Second Decl. of Michael J. Lambert (“Second Lambert Decl.”), ECF No. 179-4. Treasury also pointed out that the Wash Declaration “provides several components of an extremely complicated picture, including important background information on the development of an RTF and the testing process. For example: [1] Paragraph 3 of the declaration explains the RTF testing process as conducted through August 2016. It notes the various types of RTFs that were tested and describes the accuracy rates and ‘ease of use’ ratings for the tested RTFs. [2] Paragraph 4 describes requirements for an RTF and the potential damage a tactile feature could cause to national commerce absent sufficient testing. [3] Paragraph 5 describes additional requirements for an RTF and the significant challenge of balancing durability with manufacturability and usability. [4] Paragraph 6 provides detailed information about the testing process and the observations made in the first stages of that process. In particular, it sheds significant light on the question of whether any RTF can ever be practical for one-handed use. [5] Paragraph 7 further describes the testing process and provides the specific results of a year’s worth of testing. It also identifies the many blind organizations, including [American Council of the Blind], which participated in the testing. [6] Paragraph 8 describes the challenges other countries have encountered when attempting to incorporate an RTF into their currency. [7] Paragraph 9 describes some costs that BEP may incur in applying an RTF to United States currency. The estimates are tentative and incomplete because those costs are dependent on a number of factors, most notably which RTF and application method is eventually selected. [8] Paragraph 10 provides some general information regarding private sector costs that may be incurred by incorporating an RTF into the currency. Again, the estimates are tentative and incomplete because of many unknown factors. [9] Paragraphs 11 and 12 describe BEP’s testing and planning process. They also note that more definitive cost estimates will depend on further testing and collaboration with private parties later in the process. [10] Paragraph 13 describes the testing requirement and how it would relate to legacy notes. [11] Paragraphs 14 and 15 describe BEP’s planning and the schedule for development of the next family of notes, as well as certain aspects of cost. They underscore that security is the driving factor.” Def.’s Answers (Question 15). 33 ATMs;28 and (3) two excerpts from depositions from two individuals with visual impairment, one of which was the same Sheehan deposition submitted in conjunction with the second motion, and one of which described how Melanie Brunson, who is legally blind, folds money in a particular way prior to making purchases.29 Shortly after briefing on this motion was complete, Treasury filed a Supplemental Status Report, Def.’s Supp. Status Rpt. (Dec. 20, 2018), sharing a recent study of RTF methods conducted by the MITRE Corporation, see id., Att. 1, Raised Tactile Feature Implementation Performance Study: Final Report (2018) (“MITRE 2018 Study”), ECF No. 169-1. Based on the MITRE study, which consisted of a series of tests with 239 blind participants at five locations, Treasury shared “concerns regarding its ability to create a tactile feature for U.S. currency with an accuracy rate that will make it suitable for reliable use in commerce.” Def.’s Supp. Status Rpt. (Dec. 20, 2018) ¶¶ 4, 11. Specifically, Treasury anticipated “that a large and growing segment of blind and visually impaired persons . . . will be unable to use a tactile feature,” id. ¶ 12, for example, because they suffer from “neuropathy or other issues affecting tactile sensitivity,” id., or because, unlike many of the MITRE study participants, they are not experienced Braille readers, id. ¶ 11. Treasury’s own research and the MITRE study now caused Treasury to believe[] many of the assumptions [BEP] made in 2010 [when it recommended the three-pronged strategy for providing meaningful access] are no longer valid. Due to its inherent inaccuracy, [BEP] is concerned that a tactile feature is unlikely to allow blind and visually impaired persons to denominate currency effectively. Conversely, since 2010, advances in technology have made electronic currency readers far more effective than previously imagined. Similarly, the introduction of free smartphone applications that denominate currency with essentially perfect accuracy provides blind and visually impaired 28 See Def.’s Opp’n to Pls.’ Third Mot., Att. 5, Decl. of Michael J. Lambert (“First Lambert Decl.”), ECF No. 164-5; id., Att. 6, Decl. of David Tente, ECF No. 164-6. 29 See Def.’s Opp’n to Pls.’ Third Mot., Att. 7, Excerpts from Dep. of Patrick Sheehan, ECF No. 164-7; id., Att. 8, Excerpts from Dep. of Melanie Brunson, ECF No. 164-8. 34 persons with options not contemplated in 2010. Id. ¶ 13 (citation and footnote omitted). The plaintiffs responded to Treasury’s reevaluation of the validity of its 2010 strategy for incorporating RTF, and the effectiveness of RTF generally for accurate usage by visually impaired persons, with criticisms of the study and Treasury’s conclusions. See Pls.’ Resp. to Def.’s 2018 Supp. Status Rpt., ECF No. 173. First, the plaintiffs noted that the RTF tested by MITRE measured 90 microns in height, even though RTF measuring 140 microns in height had been shown, in previous tests, to be more perceptible and durable and is the height of the RTF used on Canadian banknotes. Id. at 2. Citing to an exhibit to the plaintiffs’ second motion to modify the injunction, see id. at 2 (citing ARINC 2009 Study at 30) and to comments submitted in response to Treasury’s 2010 Notice of its three-pronged strategy for providing meaningful access, some of which concerned Canadian banknotes and some of which only discussed RTF “in concept,” the plaintiffs declared that “[t]here was no basis for the BEP to limit the height of the RTF . . . to 90 microns.” Pls.’ Resp. to Def.’s 2018 Supp. Status Rpt. at 2, 3. These criticisms, however, failed to address the fact that Treasury had previously studied the RTF on Canadian banknotes and that the same study cited by the plaintiffs concluded that the feature wears out so frequently that “blind persons can accurately identify it on widely circulated notes only 49% of the time,” Def.’s Opp’n to Pls.’ Third Mot. at 8 (citing ARINC 2009 Study at 70), and that RTFs at that height “failed functionality testing because [they] proved to be unsuitable for use in the high-speed machine processing and handling equipment that is the standard in the industry.” Def.’s Answers (Question 19).30 30 In response to the Court’s Question 19 (“Is the best accuracy rate for an RTF in testing environments 80 percent or 90 percent? Compare [First Olijar Decl.] ¶ 10, with [2016 Wash Decl.] ¶ 3”), Treasury responded: “The best accuracy rate achieved for any proposed feature that has not been eliminated from consideration for other reasons is approximately 80%. The two declarations cited in this question were referring to different tests, before 35 The plaintiffs also downplayed the MITRE study’s concerns with accuracy, stating that any such concerns “can be resolved by more frequent replacement of currency,” while recognizing that “[r]eplacement of banknotes at more frequent intervals would undoubtedly result in higher costs in terms of production equipment, facilities, transportation, and other expenses.” Pls.’ Resp. to Def.’s 2018 Supp. Status Rpt. at 4. Finally, the plaintiffs suggested that “[t]he reason that Braille users performed better was . . . a function of greater tactile experience,” such that “the utility of the RTF is not dependent upon knowledge of Braille, but is rather a function of regular usage of the RTF.” Id. at 5. K. Plaintiffs Decline to Call Witnesses and Urge Resolution of Pending Motion Without a Hearing To focus the parties on the factors necessary to resolve the pending motion, and address the evidentiary gap that the D.C. Circuit directed should be considered on remand, a motions hearing for January 25, 2019 was scheduled, for which hearing the plaintiffs were instructed to identify witnesses to testify. See Min. Order (Jan. 4, 2019). Due to a partial government shutdown, Treasury sought to stay proceedings in light of a lapse of appropriations. See Def.’s Mot. to Stay ¶¶ 1–3, ECF No. 170. Opposing a stay, the plaintiffs “rest[ed] their case on the basis of their existing briefs plus the attachments,” Pls.’ Opp’n to Def.’s Mot. to Stay at 1, ECF different test groups, using different prototype RTFs. In referring to an accuracy rate as high as 90%, Mr. Wash was describing initial test results using small focus groups and a 140-micron Coated-Embossing feature. As stated in the Wash declaration, however, it was ‘unclear how those results would translate with larger scale testing.’ Moreover, that type of feature later failed functionality testing because it proved to be unsuitable for use in the high-speed machine processing and handling equipment that is the standard in the industry. Therefore, the recent MITRE study tested RTFs of 90 microns in height, which BEP considers more likely to be usable in machine processing and handling equipment. The results of testing at that height are as follows: • Intaglio (90 microns/max height)—2017 Focus Group—78% • Coated-embossing (90 microns)—2018 Acuity Study—65% • Intaglio (90 microns/max height)—2018 Acuity Study—82% The above refutes plaintiffs’ criticism of the MITRE study on the basis that the study failed to use a test feature of 140-160 microns in height. See [Pls.’ Resp. to Def.’s Supp. Status Rpt.] at 4. Although there had previously been an assumption or belief that a feature of that height might be workable for U.S. currency, functionality testing has shown otherwise.” Def.’s Answers (Question 19) (alterations omitted). 36 No. 172, and disclaimed any need for an evidentiary hearing, id. At the same time, ironically, the plaintiffs demanded more clarity as to three key issues: (1) Treasury’s position on the feasibility of an RTF, see Pls.’ Reply in Supp. of Third Mot. (“Pls.’ Reply”) at 8, ECF No. 168; (2) Treasury’s cost estimates, see Pls.’ Opp’n to Def.’s Mot. to Stay at 1; Pls.’ Reply at 1–3; and (3) relatedly, Treasury’s timeline for deployment of currency changes, Pls.’ Third Mot. at 3. In lieu of an evidentiary hearing to help resolve the disputed factual issues between the parties—an opportunity that apparently interested only this Court—the evidentiary hearing was vacated and the parties were directed to respond to questions posed by the Court, with twelve questions directed to the plaintiffs and sixteen questions directed to Treasury. See Order Directing the Parties to Answer Questions at 1; Pls.’ Answers, as amended by Pls.’ Unopposed Mot. to Amend, ECF No. 177; Def.’s Answers; Pls.’ Resp. to Def.’s Answers, ECF No. 180. The response to these questions laid bare multiple disagreements between the two sides, with the plaintiffs questioning whether Treasury was acting in good faith, Pls.’ Answers (Question 12),31 31 In response to the Court’s Question 12 (“If the defendant insists, based on internal and independent evaluations of available RTF and other technologies presented to this Court, that meeting the timelines in the plaintiffs’ proposed order would be infeasible or impossible, must the plaintiffs’ pending motion be denied?”), the plaintiffs responded: “Plaintiffs believe that instead of denying the motion, the Court should tailor its remedial order to impose a feasible schedule for compliance. . . . That being said, the Court should view with considerable skepticism any assertion of infeasibility. Any such assertion would be inconsistent with the Secretary’s prior representations to this Court that the delays in the next currency redesign were necessitated not by challenges in making the currency accessible, but rather by the additional time required to combat new counterfeiting technologies. See [Def.’s Supp. Status Rpt. ¶ 5 (Feb. 22, 2016)]. . . . Additionally, the Secretary has not acted in good faith and with reasonable diligence in providing meaningful access to currency. This is illustrated by the Secretary’s most recent status report, which states that the Secretary may abandon the RTF approach due to lack of efficacy. [Def.’s Supp. Status Rpt. (Dec. 20, 2018) ¶ 13]. This finding was based on a study conducted by [MITRE], which tested a 90 micron RTF feature, instead of a 145-160 micron feature which the [ARINC 2009 Study] found could be easily integrated with existing cash handling equipment. According to the [MITRE] study, the 90-micron feature was used in order to hold ‘the height to a lower limit for stack height (which increase due to the addition of the RTF), [Banking Equipment Manufacturing] use, and Intaglio capability.’). [citing MITRE 2018 Study at 7–8]. The Secretary was well aware of these ‘lower limits’ in 2010, when he first proposed using the RTF. 75 Fed. Reg. 28331 (May 20, 2010). Amazingly, the Secretary waited for nearly nine years before conducting a test on the 90-micron feature to determine its effectiveness. The Secretary can point to no reason why he could not have performed the same study in 2010. Essentially, the Secretary wasted the past nine years in pursuing an approach that he knew or should have known would not be effective. This points to the obvious conclusion that the Secretary will spare no effort to delay implementation of meaningful access. This approach will not change unless this Court makes clear that it expects the Secretary to provide meaningful access by a hard deadline, and it is prepared to use 37 Treasury suggesting that meaningful access to currency, even if RTF is never successfully incorporated, was already being provided to satisfy Rehabilitation Act requirements, see Def.’s Answers (Question 16),32 and the parties unable to agree even on the number of people who would be helped by RTF methods, cf. id. (estimating 340,547 blind persons in the United States its enforcement powers to compel compliance with its order. The effective use of currency is critical to full participation in modern society. As noted by the Court of Appeals, the accessibility of currency is endowed with ‘special importance’ given its centrality as a mechanism of commerce. Am. Council of the Blind v. Paulson, [525 F.3d at 1269]. Plaintiffs respectfully request that the Court modify the injunctive order so that millions of blind and visually impaired individuals can enjoy meaningful access to currency without being required to wait for several more decades.” Pls.’ Answers (Question 12) (emphases in original) (citations and two footnotes omitted). 32 In response to the Court’s Question 16 (“The defendant suggests that external currency readers and mobile apps available to the blind or visually impaired already provide meaningful access to currency. . . . Given that the usage rate of currency readers and mobile apps has not changed significantly in the past year, why is the defendant’s argument that meaningful access is already being provided not foreclosed by the D.C. Circuit’s opinion in American Council of the Blind v. Mnuchin, 878 F.3d 360, which included several statements indicating that the D.C. Circuit did not believe that currency readers and mobile apps fulfill the defendant’s obligation to provide meaningful access? [citations omitted]), Treasury responded: “Defendant submits that the D.C. Circuit opinion, American Council of the Blind v. Mnuchin, 878 F.3d 360 (D.C. Cir. 2017), does not foreclose the argument that blind and visually impaired persons already have meaningful access to the currency through external currency readers and mobile device applications. First, plaintiffs’ filing of a renewed motion to modify mooted the Court of Appeals’ decision, which thus no longer governs these proceedings as a matter of law (although it provides some insight into questions the court may have if this matter appears before it again). Second, the question of whether currency readers and mobile applications already provide meaningful access was not before the court, such that the statements referred to above should be seen as merely assumptions or shorthand references to the fact that this is a Rehabilitation Act case. Third and relatedly, the record before the Court of Appeals was far from complete regarding the efficacy of currency readers and mobile applications or the question [of] whether blind and visually impaired persons now have meaningful access to U.S. currency. . . . Defendant’s efforts to provide meaningful access to the currency for blind and visually impaired persons should be assessed in terms of the reasonable accommodations offered, not those accepted. Defendant has offered meaningful access to 100% of the blind community. . . . Similarly, one factor that may impact the number of mobile applications downloaded is the availability of competing applications. For example, Microsoft produces Seeing AI, an award-winning, free application, that can denominate both United States and foreign currency, as well as perform numerous other tasks. See Seeing AI, https://microsoft.com/en-us/seeing-ai (last visited Feb. 7, 2019). Indeed in July 2018, the American Council of the Blind gave Microsoft and Seeing AI its ‘James R. Olsen Distinguished Service Award’ for ‘important contributions which have advanced opportunities for the blind community.’ See Microsoft Receives ACB’s James. R. Olsen Distinguished Service Award, https://www.acb.org/james-olsen-award-microsoft (last visited Feb. 7, 2019). In making the award, [American Council of the Blind or ‘ACB’] stated that the Seeing AI application had ‘significantly enhanced the independence and quality of life for Americans who are blind or visually impaired.’ Id. ACB further noted, ‘Due to its no-cost and multi-use capabilities, the application has been downloaded over 150,000 times and completed over 5 million tasks for users.’ Id. Presumably, many blind individuals who are accessing currency using Microsoft’s application have decided not to seek the government-provided applications or readers. . . . Despite the above factors that would tend to reduce the number of blind individuals who choose to access currency through government-provided readers or applications, defendant will continue to make good-faith efforts to publicize and distribute those options. To date, BEP’s Office of External Relations (‘OEX’) has attended more than 90 conferences as part of its meaningful access initiative, and dozens of organizations and government entities continue to actively support the currency reader distribution efforts. . . .” Def.’s Answers (Question 16); see also id. n.2 (“Defendant recognizes that these [folding] methods of accessing currency, while fully effective for some of the blind population, do not provide meaningful access for all, since they depend on a trusted friend or relative to denominate currency initially. That is why BEP offers free currency readers and mobile device applications.”). 38 in 2020); Pls.’ Resp. to Def.’s Answers at 15 (estimating that in 2008, 1.5 million blind persons were in the United States and that “[t]hat number has certainly increased substantially in recent years due to the aging of the American population”). Indeed, the only point on which the parties agree is that Treasury has failed to provide concrete estimates of the cost of decoupling the timeline for incorporating RTF from the timeline for redesigning currency to meet security threats. See, e.g., Def.’s Opp’n to Pls.’ Third Mot. at 2; Pls.’ Reply at 1–3. On the one hand, Treasury says that such costs cannot be provided until an RTF method is chosen, essentially rendering the D.C. Circuit’s remand to gather and evaluate cost estimates an impossible task that simply cannot be fulfilled given the current state of the agency’s evaluation of RTF technology. See Def.’s Opp’n to Pls.’ Third Mot. at 2 (stating “the exact costs cannot be known until the Secretary identifies the best technological method for adding a tactile feature to the currency”); id. at 15 (private sector testing associated with redesigned currency “cannot begin, and its cost cannot be determined, until BEP chooses the precise tactile feature for the currency”); Def.’s Answers (Question 23).33 33 In response to the Court’s Question 23 (“The D.C. Circuit repeatedly emphasized that, to determine whether to modify the injunction, this Court needs ‘concrete estimates of the costs that matter,’ Am. Council of the Blind v. Mnuchin, 878 F.3d at 371, that is, the difference between a timeline coupled to other security measures and one that is decoupled from any other redesign. Yet the defendant continues to state that the costs of ‘decoupling the provision of meaningful access from the next redesign . . . cannot be known until the Secretary identifies the best technological method for adding a tactile feature to the currency.’ [Def.’s Opp’n to Pls.’ Third Mot. at 2]. Has the defendant (a) determined the best technological method for adding a tactile feature to currency?; (b) calculated more concrete estimates comparing the cost of adding an RTF, decoupled from any other redesign requirement, to the costs of combining RTF with the security redesign?; and (c) if the response to both (a) and (b) is no, estimated when answers may be provided to these questions?”), Treasury responded: “(a) BEP has not determined the best application method for any potential RTF, nor has any RTF passed all of the vigorous and extensive manufacturability and circulation testing required before it could be recommended for use on currency. Two methods are still under consideration: Intaglio and Coated-Embossing. (b) Since BEP has not yet determined the best method for adding an RTF, the agency cannot provide concrete cost estimates for any effort to add an RTF to the legacy $10. As noted previously, it is impossible to predict how well any feature would do in testing. This adds a great deal of additional uncertainty to any cost estimates. Further cost considerations, as far as they are currently known, are described in response to Question 13 []. (c) BEP anticipates completing manufacturing testing for the RTF by September 2019 and selecting the RTF application method by December 2019. Once the application method is selected, BEP would be able to provide more concrete estimates comparing the cost of adding an RTF, decoupled from any other redesign requirement, to the costs of combining the RTF with the overall security redesign.” Def.’s Answers (Question 23). 39 On the other side, the plaintiffs, without disputing Treasury’s position, apparently read the D.C. Circuit’s decision remanding this case as compelling the granting of their motion if Treasury is unable to provide “concrete estimates of the costs that matter.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 371. Indeed, the plaintiffs declare that “the Secretary has failed to meet his burden of providing ‘concrete estimates’ of the costs of decoupling the accessibility from the security redesign,” Pls.’ Reply at 8 (quoting Am. Council of the Blind v. Mnuchin, 878 F.3d at 369) (emphasis omitted)), and also assert that “[a]ny costs other than the additional costs of decoupling the two redesigns are irrelevant for purposes of this motion,” id. at 2. Even if the plaintiffs’ reading of the D.C. Circuit’s decision were reasonable, given the current state of Treasury’s efforts to implement RTF and the testing needed before bills incorporating RTF could be placed into circulation, Treasury unequivocally states that “[i]t would not be feasible or possible to produce a $10 note with an RTF by December 31, 2020, or to produce all denominations with an RTF by December 31, 2026,” and thus that it would be infeasible and impossible to comply with the timelines demanded in the plaintiffs’ third motion. See Def.’s Answers (Question 27).34 34 In response to the Court’s Question 27 (“Does the defendant contend that introduction of a $10 bill with RTF by December 31, 2020, or of other denominations of bills (aside from the $1 bill) with RTF by December 31, 2026 would be infeasible or impossible? If so, please detail the specific reasons supporting this contention, with citation to any up-to-date declarations or other evidence provided by the defendant to support each reason.”), Treasury responded: “It would not be feasible or possible to produce a $10 note with an RTF by December 31, 2020, or to produce all denominations with an RTF by December 31, 2026. At this point, BEP has not determined the application method for any potential RTF, nor has any RTF passed all of the extensive manufacturability and circulation testing required before BEP could recommend it for use on currency. See [Second Olijar Decl.] ¶ 5. Both government agencies and private industry need to conduct extensive testing on each denomination when it is redesigned for security purposes. Similarly, once an RTF is incorporated into each new denomination design, both public and private bodies would have to conduct similar extensive testing on each denomination. There is no way to predict the results of this testing, and if notes containing any feature fail the testing, there is no way to predict how much additional development and testing would be required. See [Second Johnston Decl. ¶¶ 4, 5; Second Lambert Decl. ¶¶ 19, 21; Second Olijar Decl. ¶ 9]. If BEP were ordered to affix an RTF on the legacy $10 note, regardless of potential effectiveness, it would still need to go through extensive testing to ensure that it is manufacturable at high volumes; will be fully functional in banking equipment, high-speed counting machines, ATMs, and other machines; and will not interfere with either the overt or covert security features on the existing $10 note. This testing would likely take a minimum of three years. However, the process could be longer, particularly if the RTF adversely impacts currency’s use in commerce or the high-speed processing (inspection and authentication) machines at the 40 L. Matter is Stayed While Parties Negotiate Amidst these multiple areas of disagreement was a faint glimmer of hope that the parties might be able to reach a solution on their own. Treasury indicated, in its answers to the Court’s questions, that the plaintiffs had been invited to meet in September 2018 for a “frank discussion about the progress the agency had made and the limitations of any RTF,” which invitation the plaintiffs then declined. Id. at 2.35 The plaintiffs indicated, however, that they “would likely have” accepted the invitation, “had the Secretary’s counsel provided some indication that new proposals would be forthcoming . . . that could resolve this matter.” See Pls.’ Resp. to Def.’s Answers at 17. Accordingly, the Court ordered the parties to meet and discuss proposals from both sides that could resolve the plaintiffs’ pending motion “in light of the defendant’s representations supplementing the record as to why the provision of more concrete cost estimates, as required by the D.C. Circuit’s opinion . . . are impossible to provide and why it would not be feasible to meet the deadlines proposed by the plaintiffs.” Min. Order (Feb. 25, 2019). The parties met on March 11, 2019 and requested a stay of proceedings to give the Federal Reserve Banks. Any problem would then need to be diagnosed and an appropriate remedy identified and implemented. A new round of testing would be required to ensure that the implemented remedy was effective. See [Second Olijar Decl. ¶¶ 5, 6; Second Lambert Decl. ¶¶ 17–21]. Banknote equipment manufacturers [“BEMs”] have asked to receive the final RTF design (on test coupons) for testing of their transport systems at least two years before the issuance of currency bearing the RTF. Every BEM, from a company that makes bill acceptors to a company that makes ATMs and even those that make high-speed casino and central bank machines, will need to complete extensive testing. See [Second Lambert Decl. ¶ 21; Second Johnston Decl. ¶ 6]. Production of secure currency notes in the volume required that function seamlessly in commerce is an extremely complicated, multi-step industrial process, and unexpected problems can arise at any point. For this reason, it would be extremely risky to truncate or suspend this extensive testing. See [Second Olijar Decl. ¶ 7].” Def.’s Answers (Question 27). 35 Treasury provided details of this invitation in the introduction to its answers to the Court’s questions, stating, “[i]n light of the results of the MITRE study, the defendant, through his counsel, proposed to meet with the American Council of the Blind [] and its counsel in September 2018, to discuss the efforts of the [BEP] to meet the needs of the blind and visually impaired and to develop an acceptable tactile feature. BEP offered to provide appropriate tactile feature samples for examination during that meeting. At such a meeting, defendant’s representatives would have answered questions from the plaintiffs, provided accurate information, and dispelled any misconceptions the plaintiffs may have had. Defendant believed that a frank discussion about the progress the agency had made and the limitations of any RTF may have resolved plaintiffs’ renewed motion to modify. The plaintiffs, however, declined defendant’s invitation to hold a meeting.” Def.’s Answers at 2 (citation to copies of email correspondence omitted). 41 parties more time to negotiate potential solutions. See Jt. Status Rpt. (Mar. 14, 2019) ¶¶ 1, 2, ECF No. 182; Min. Order (Mar. 14, 2019) (staying case until Apr. 15, 2019); Unopposed Mot. to Stay, ECF No. 185; Min. Order (Apr. 9, 2019) (continuing the stay until June 10, 2019). M. When Stay Is Lifted, Parties Agree that Plaintiffs’ Pending Third Motion Should be Decided Based on the Existing Record, as Expanded by Answers to the Court’s Questions When the stay was lifted on June 10, 2019, Treasury urged that the plaintiffs’ pending motion be decided “based on the extensive record before” the Court. Jt. Status Rpt. (June 10, 2019) at 1, 3, ECF No. 187. The plaintiffs, despite having never moved for discovery and having declined the Court’s prior invitation for an evidentiary hearing in January 2019, “disagree[d] with the Secretary that the pending motion . . . should be decided on the basis of the existing record.” Id. at 3. The plaintiffs now recommended that an evidentiary hearing or supplemental briefing “may be required” to determine the feasibility of redesigning any denominations by December 31, 2026, especially when, as Treasury conceded, its claim of infeasibility was only directly raised in supplemental briefing responding to the Court’s questions. Id. at 2–4. The plaintiffs also requested “an opportunity to obtain discovery as to the factual basis for the Secretary’s claim of infeasibility[] prior to the filing of further briefs on [this] issue.” Id. at 4. Once again, the Court sought clarification regarding the status of this matter, ordering the plaintiffs to show cause why their pending motion for modification of the Injunction Order, on which briefing was complete, should not be denied without prejudice in light of the plaintiffs’ assertion that this motion should not be decided on the current record. See Min. Order (June 14, 2019). The plaintiffs clarified that they only wanted discovery if their motion was going to be denied, suggesting that the “Court may have misunderstood the thrust of [their] position,” which was intended to “state that the Court should not decide the pending motion . . . on the basis of the existing record[] if the Court’s decision was to be based on a finding that the relief sought by 42 [plaintiffs] was infeasible.” Pls.’ Resp. to Show Cause Order at 1, ECF No. 188 (emphasis added). The plaintiffs’ newly clarified position was “that they should first be given an opportunity to conduct discovery on the feasibility issue, as well as additional briefing after such discovery is concluded, if the Court were inclined to deny the pending motion on the basis of [Treasury’s infeasibility defense],” id., with the proposed discovery intended to clarify the “scope” of such defense, and whether infeasibility “applies to only one denomination, all denominations, or something in between.” Id. at 2. At the same time, “if the Court does address the feasibility issue without discovery and/or additional briefing,” their motion should be granted, as “the declarations filed by [Treasury] present no factual basis for the infeasibility defense.” Id. at 1. Further, because “several design features other than an RTF could be employed to achieve accessible currency,” the plaintiffs argue their motion should be granted “even if the RTF is infeasible.” Id. at 2 (citing Pls.’ Resp. to Def.’s Answers at 9–11). Thus, the plaintiffs “assert[ed] that the Court should without further delay decide the pending motion on the basis of the issue” at hand, which they suggest is solely “whether the Secretary has provided concrete estimates of the additional costs of decoupling the accessibility redesign from the security redesign.” Id. at 2. With both parties in agreement that the pending motion should be decided on the basis of the current record, that motion is denied. II. LEGAL STANDARD Rule 60(b)(5) of the Federal Rules of Civil Procedure circumscribes a court’s ability to modify a final judgment unless “applying [the order] prospectively is no longer equitable.” FED. R. CIV. P. 60(b)(5). The party seeking modification “bears the burden of establishing that a significant change in circumstances warrants [its] revision,” Rufo v. Inmates of Suffolk Cty. Jail, 43 502 U.S. 367, 383 (1992), and this initial burden may be met by showing “a significant change either in factual conditions or in law,” that renders continued enforcement “detrimental to the public interest,” see id. at 384; accord Horne v. Flores, 557 U.S. 433, 447 (2009). A party’s request to modify an injunction must be viewed through a “broad and flexible” analysis as to whether the “changed circumstances warrant[] relief,” Horne, 557 U.S. at 456, and “the public interest is a particularly significant reason for applying a flexible modification standard” because the injunction “reach[es] beyond the parties involved directly in the suit,” Rufo, 502 U.S. at 381 (internal quotation marks and citation omitted). Here, the party benefitting from the Injunction Order moves for modification, whereas “the overwhelming majority of motions to modify the terms of a[n] [injunction] are filed by the enjoined party seeking ‘relief from’ the court’s judgment.” Salazar ex rel. Salazar v. District of Columbia, 896 F.3d 489, 498 (D.C. Cir. 2018) (emphasis in original). Regardless, a motion to modify can also “be filed by the plaintiff seeking to enforce the terms of the injunction.” Id. “[A] court’s ‘broad and flexible’ equitable powers, which Rule 60(b) codifies, may allow a district court to ‘tighten a decree’ as well.’” Id. (alterations omitted) (quoting United States v. W. Elec. Co., Inc., 46 F.3d 1198, 1202 (D.C. Cir. 1995)). “Although . . . a district court should exercise flexibility in considering requests for modification . . . , it does not follow that a modification will be warranted in all circumstances.” Rufo, 502 U.S. at 383. Rather, modification must be in the public interest and be suitably tailored to the changed circumstances. See Gov’t of Province of Manitoba v. Zinke, 849 F.3d 1111, 1122 (D.C. Cir. 2017) (identifying these two prongs of the Rule 60(b)(5) inquiry). At the same time, once a party establishes that a significant change in circumstances warrants revision, the court should, “[a]t the very least . . . consider whether the proposed modification is suitably 44 tailored to the changed circumstance.” Id. at 1117 (internal quotation marks omitted) (quoting Rufo, 502 U.S. at 383). In analyzing the public interest, “courts sitting in equity are obliged to consider the interests of all those affected by a decree.” Twelve John Does v. District of Columbia, 861 F.2d 295, 298 (D.C. Cir. 1998) (emphasis added). The D.C. Circuit previously concluded that, in this case, the public interest includes the interests of “private third parties,” such as banking machine manufacturers, who “will unquestionably be affected by the currency redesign.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 368. As for the suitably tailored prong, three factors inform this consideration. First, “a modification must not create or perpetuate a constitutional violation.” Rufo, 502 U.S. at 391. Second, a “proposed modification should not strive to rewrite [the order]. . . . the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances.” Id.; see also Salazar, 896 F.3d at 498 (“Any adjustment of the order . . . ‘should do no more’ than is necessary to ‘resolve the problems created by the change in circumstances.’” (quoting Rufo, 502 U.S. at 391)). Third, the court must “defer to . . . government administrators, who have the ‘primary responsibility for elucidating, assessing, and solving’ the . . . intricacies of implementing a decree modification.” Rufo, 502 U.S. at 392 (quoting Brown v. Bd. of Educ., 349 U.S. 294, 299 (1955)); id. at 392 n.14 (“[S]imple common sense require[s] the court to give significant weight to the views of the [] government officials who must implement any modification.”). While Rufo concerned institutional reform directed at state and local governments that were seeking relief from an injunction, similar deference is owed to assessments by a federal agency with particular expertise and knowledge in understanding relevant resource constraints in the context of the agency’s overall mission in 45 service of the public interest. This analysis under Rule 60(b)(5), particularly when the beneficiary of an injunction seeks a modification that would hold an agency to strict deadlines, is not far afield from the D.C. Circuit’s guidance on the equitable factors to consider when an “agency’s delay is so egregious as to warrant mandamus.” See Am. Hosp. Ass’n v. Burwell (“AHA I”), 812 F.3d 183, 189 (D.C. Cir. 2016) (internal quotation marks and citation omitted). In such a case, the D.C. Circuit first held that “in order for law—man-made or otherwise—to command the performance of an act, that act must be possible to perform.” Am. Hosp. Ass’n v. Price (“AHA II”), 867 F.3d 160, 161 (D.C. Cir. 2017). Thus, the district court must “seriously grapple” with an agency’s “assertion that lawful compliance” with proposed timelines “would be impossible.” Id. at 162 (emphasis in original). When fashioning a mandamus order, a number of factors may be relevant and depend on the case, including the real impact on human health and welfare, id. at 164, the defendant’s discretion over the program at issue, id., the “risk of infringing on the authority and discretion of the executive branch,” id. (alteration, internal quotation marks, and citation omitted), the “legislative branch’s awareness of the problem and its capacity to furnish a comprehensive solution,” id., the defendant’s “incipient but good-faith efforts” to resolve the issue, id., and the “availability of some, albeit incomplete,” alternative form of relief, id. Each of these factors tempers a district court’s equitable discretion when fashioning a mandamus order, and each of these factors is relevant to considering the proposed modification here. III. DISCUSSION At the outset, any argument that Treasury is already complying with its obligation to provide meaningful access to currency is squarely foreclosed by the D.C. Circuit’s most recent opinion in this case. Treasury’s assurance that its currency readers and mobile applications 46 “provide essentially universal meaningful access to the entire blind community,” Def.’s Opp’n to Pls.’ Third Mot. at 31, was rejected by the D.C. Circuit on a record, which although now expanded on some issues, was virtually indistinguishable from the current record on the availability of such devices. The D.C. Circuit observed that “[u]nder the injunction’s current terms, millions of visually impaired Americans who could have expected meaningful access to currency by 2018 must now wait until 2026 and beyond. In the meantime, only a fraction of them are helped by the other measures put in place by the Secretary.” Am. Council of the Blind v. Mnuchin, 878 F.3d at 367. Thus, in no uncertain terms, the D.C. Circuit concluded that Treasury’s new timeline for redesigns meant that it “will be in violation of federal law for eight to twenty more years than it would have been had it met its expected timeline for currency redesigns when the injunction issued.” Id. at 366; see also id. at 368 (referring to Treasury’s “ongoing violation of the Rehabilitation Act”). Indeed, notwithstanding Treasury’s fleeting arguments about already complying with the Rehabilitation Act, the agency never moved to terminate the injunction, or sought reconsideration of the D.C. Circuit’s conclusions on this issue, and even concedes here that a “fuller record” would be needed prior to consideration of any such motion. See Def.’s Answers (Question 16), supra n.32. Accordingly, the question of whether Treasury is already in compliance with the Rehabilitation Act has already been answered with a blunt, and binding, “no.” The question now pending is the efficacy and equities of the decade-old Injunction Order. Despite disagreement on a number of grounds in this case, neither party denies that the Injunction Order is dated, and that the assumptions upon which that relief was based—namely, that a security redesign of U.S. currency would likely occur between 2013 and 2018, and that, in light of the experience of other countries, feasible and durable features could be incorporated into U.S. currency within that 47 timeframe—have not come to pass. Notwithstanding the plaintiffs’ insinuations to the contrary, Treasury has been working in good faith to meet its obligations under the Rehabilitation Act while concurrently meeting its obligations to design currency to guard against counterfeiting under 12 U.S.C. § 418, see supra Sections I.D, I.F, I.G. Yet, due to the complexities of designing and incorporating RTF that meets the standards for U.S. currency and to the need to address new and evolving counterfeiting security threats, the Injunction Order has been insufficient to bring Treasury into full compliance with its obligations under the Rehabilitation Act. In short, circumstances have changed. Notably, however, the passage of time has also demonstrated the prudence of coupling the accessibility redesign to the ongoing security redesign, as the 2008 Injunction Order provided. Directing Treasury to work on both redesigns simultaneously reflects the reality that these redesigns cannot be independent of each other: any accessibility feature, whether that be RTF or any other method, must work in tandem with the security features of the banknote. See, e.g., Def.’s Answ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4432271. Public record. Not legal advice.