Frame, et al v. City of Arlington

Filing

08-10631

Frame, et al v. City of Arlington

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 23, 2010 N o . 08-10630 Lyle W. Cayce Clerk

R I C H A R D FRAME; WENDELL DECKER; SCOTT UPDIKE; J N, a minor, by h is next friend and mother Gabriela Castro; MARK HAMMAN; JOEY SALAS P la in t iffs - Appellants v. C I T Y OF ARLINGTON, A Municipal Corporation D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Northern District of Texas

B e fo r e JOLLY, PRADO, and SOUTHWICK, Circuit Judges. E . GRADY JOLLY, Circuit Judge: T h e petition for rehearing is GRANTED. We withdraw our prior opinion, F r a m e v. City of Arlington, 575 F.3d 432 (5th Cir. 2009), and substitute the fo llo w in g , which reflects substantial changes from the earlier opinion.1
This footnote gives the reader a glimpse of the differences between this opinion on rehearing and our first opinion. The district court initially dismissed the plaintiffs' complaint on statute of limitations grounds. On appeal, we vacated in part and remanded. We agreed that the plaintiffs' claims accrued upon completion or alteration of the noncompliant sidewalk, curb, or parking lot, but found that the City had the burden to prove expiration of the two-year limitations period. In so deciding, we accepted the plaintiffs' argument that violations of the regulations were actionable because sidewalks, curbs, and parking lots were "services" provided by the City. Judge Prado dissented, arguing that the statute of limitations was triggered by the plaintiffs' encounters with, not the City's completion of, noncompliant sidewalks, curbs, or parking lots. On petition for rehearing, the City argues we erred in
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O P IN I O N ON REHEARING T h e plaintiffs are persons with disabilities who depend on motorized w h e e lc h a ir s for mobility. They allege that the City of Arlington, by failing to m a k e the City's curbs, sidewalks, and certain parking lots ADA-compliant, has v io la t e d the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court dismissed their complaint on the basis that their claims were b a r r e d by the applicable two-year statute of limitations. This appeal raises more t h a n one issue of first impression--at least for this court. Initially, we must d e c id e whether Title II of the ADA authorizes the plaintiffs' claims. To the e x t e n t we find Title II authorizes the plaintiffs' claims, we must also consider w h e t h e r those claims are subject to a statute of limitations and, if so, when the c la im s accrued. W e hold that Title II mandates the modification of physical infrastructures t h a t "effectively deny" access to a public entity's services, programs, or activities. Within this framework, sidewalks, curbs, and parking lots are "facilities," not " s e r v ic e s , programs, or activities." Consequently, plaintiffs only have a private r ig h t of action to enforce compliance with the implementing regulations to the e x t e n t that the failure to make a sidewalk, curb, or parking lot compliant denies p la in t iffs access to actual services, programs, or activities. Where the plaintiffs e s t a b lis h a private cause of action, we further hold that the plaintiffs' claims are

concluding that sidewalks, curbs, and parking lots constitute "services" within the meaning of Title II. The plaintiffs argue that we erred in concluding that the statute of limitations is triggered by completion of a noncompliant sidewalk, curb, or parking lot. The plaintiffs contend that the statute of limitations is triggered by a handicapped person's most recent encounter with that sidewalk, curb, or parking lot. On rehearing, we hold that sidewalks, curbs, and parking lots are not Title II services, programs, or activities; thus, the plaintiffs lack a private right of action to enforce the regulations unless noncompliance has denied access to a service, program, or activity. Where a cause of action is established, the statute of limitations is triggered when the plaintiff knew or should have known that he or she was excluded from a city service, program, or activity.

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No. 08-10630 s u b je c t to a two-year statute of limitations, and that the claims accrued when t h e plaintiffs were excluded from the desired program, service, or activity. We fu r t h e r conclude, however, that it was the City's burden to prove accrual and e x p ir a t io n of any limitations period. Because the district court erred in

r e q u ir in g the plaintiffs to prove that their claims had not expired, we remand for fu r t h e r proceedings. I. T h is appeal comes to us from the grant of a motion to dismiss under F e d e r a l Rule of Civil Procedure 12(b)(6). We therefore accept the factual

a lle g a t io n s of the plaintiffs' complaint as true. See, e.g., Lane v. Halliburton, 529 F .3 d 548, 557 (5th Cir. 2008). The plaintiffs filed their complaint in the district c o u r t on July 22, 2005, and amended it three times. Accordingly, for facts we r e fe r to the plaintiffs' final amended complaint. T h e plaintiffs are individuals who reside in Arlington who have mobility im p a ir m e n t s that require that they use motorized wheelchairs. They point to m ore than one hundred curbs and poorly maintained sidewalks in Arlington that t h e y allege make their travel impossible or unsafe. They also point to at least t h r e e public facilities lacking adequate handicap parking. Count 1 of the

p la in t iffs ' complaint alleges violations of Title II of the ADA. See Title II of the A D A , 42 U.S.C. §§ 12131 et seq. (prohibiting public entities from discriminating o n the basis of disability).2 Count 2 of the plaintiffs' complaint alleges violations

Count 1 also alleges that the City has violated 28 C.F.R. § 35.150 by failing to implement a plan to transition its curbs, sidewalks, and parking lots to ADA compliance. 28 C.F.R. § 35.150 is a regulation promulgated by the Attorney General that requires public entities to develop transition plans to achieve compliance with Title II. See ADA Accessibility Guidelines, 28 C.F.R. § 35.150(d)(1) (requiring public entities to draft transition plans). Citing Alexander v. Sandoval, 532 U.S. 275 (2001), the district court dismissed the plaintiffs' claims under 28 C.F.R. § 35.150 because it concluded the plaintiffs had no private cause of action to enforce that regulation. See 532 U.S. at 291 (implementing regulation, on its own, cannot create private right of action); see also Iverson v. City of Sandusky, 452 F.3d 94, 99-100 (1st Cir. 2006) (no private right of action to enforce 28 C.F.R. § 35.150); Ability Ctr. of Greater

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No. 08-10630 o f Section 504 of the Rehabilitation Act, which prohibits recipients of federal f u n d in g from discriminating against persons on the basis of disability. See S e c tio n 504 of the Rehabilitation Act, 29 U.S.C. § 794. The plaintiffs do not seek m o n e ta r y damages; they only ask for an injunction requiring the City to bring it s curbs, sidewalks, and parking lots into ADA compliance. T h e City of Arlington moved to dismiss the complaint, and the district c o u r t granted the City's motion on the ground that the plaintiffs' claims were b a r r e d by the applicable two-year statute of limitations. The district court held t h a t the plaintiffs' claims accrued, and the two-year limitations period began to r u n , on the date the City completed the construction or alteration of any n o n c o m p lia n t curb, sidewalk, or parking lot. Because the plaintiffs' complaint d id not point to dates of noncompliant construction or alteration within the two y e a r s preceding its filing date, July 22, 2005, the district court dismissed the p la in t iffs ' claims. O n appeal, the plaintiffs argue that their claims accrued on the date in d iv id u a l plaintiffs actually encountered a noncompliant barrier--not on the d a t e the City completed a noncompliant construction or alteration. In the

a lt e r n a t iv e , the plaintiffs argue that statutes of limitation do not apply to claims fo r injunctive relief; that the noncompliant curbs, sidewalks, and parking lots a r e continuing violations of the ADA that relieve them of the limitations bar; and t h a t dismissal was improper because the City, and not the plaintiffs, had the b u r d e n to establish when the plaintiffs' claims accrued and the limitations p e r io d expired. W e consider each of the plaintiffs' arguments separately. II.

Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004) (same). The plaintiffs do not appeal that ruling.

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No. 08-10630 W e review a Rule 12(b)(6) dismissal de novo. See, e.g., Lindquist v. City o f Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2007). "The complaint must be lib e r a lly construed, with all reasonable inferences drawn in the light most fa v o r a b le to the plaintiff." Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (c it in g Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir. 1998)). The interpretation of a statute is a question of law we also review de novo. See, e.g., Motient Corp. v. D o n d e r o , 529 F.3d 532, 535 (5th Cir. 2008). A. T h e immediate question is whether the plaintiffs have stated a cognizable c la im under Title II of the ADA; that is, whether the plaintiffs have a private r ig h t of action, in connection with their statutory right of access, to force a city t o maintain its curbs, sidewalks, and parking lots in compliance with the im p le m e n t i n g regulations. If they have no claim, then we need not reach the s t a t u t e of limitations issues. For reasons we explain, we decide that, to the e x t e n t noncompliant sidewalks, curbs, or parking lots effectively deny plaintiffs a c c e s s to a city "service, program, or activity," plaintiffs have a private right of a c t io n to enforce the regulations; to the extent the noncompliant sidewalks, c u r b s , or parking lots do not effectively deny plaintiffs access to a "service, p r o g r a m , or activity," plaintiffs do not have a private right of action to enforce t h e regulations.3 T h e ADA was passed "[t]o provide a clear and comprehensive national m a n d a t e for the elimination of discrimination against individuals with d is a b ilit ie s ." 42 U.S.C. § 12101(b)(1). Title II applies to public entities. It p r o v id e s that "no qualified individual with a disability shall, by reason of such d is a b ilit y , be excluded from participation in or be denied the benefits of the s e r v ic e s , programs, or activities of a public entity, or be subjected to
In some cases, whether a burden effectively denies access can be determined by an objective standard; in other cases, it will be a question of mixed law and fact, or even pure fact.
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No. 08-10630 d i s c r i m in a t io n by any such entity." 42 U.S.C. § 12132.4 We have held that to m a k e a prima facie case under Title II a plaintiff must show: (1) that he has a q u a lify in g disability; (2) that he is being denied the benefits of services, p r o g r a m s , or activities for which the public entity is responsible, or is otherwise d is c r im in a t e d against by the public entity; and (3) that such discrimination is b y reason of his disability. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 6 7 1 -7 2 (5th Cir. 2004). There is no dispute that the City is a public entity, or t h a t the plaintiffs here have qualifying disabilities.5 P la in t iffs have assembled a range of arguments as to how Arlington's n e w ly constructed, newly maintained, and pre-ADA 6 sidewalks, curbs, and p a r k in g lots are in violation of Title II. Some of the violations pointed to by the p la in t iffs are alleged to deny access to public services; other violations are not s im ila r ly tied to the deprivation of access to public services. In some instances, t h e alleged violation excludes plaintiffs from public benefits; in other instances, p la in t iffs can access the services but only with difficulty. G iv e n the breadth of the plaintiffs' attack on Arlington's sidewalk, curb, a n d parking lot system, we must identify with some precision the degree to
The ADA was modeled after the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of their disability. See 29 U.S.C. § 794 ("No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance."). The ADA expressly provides that the remedies, procedures, and rights available under the Rehabilitation Act also apply to the ADA, and thus jurisprudence interpreting either statute is applicable to both. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.), cert. denied, 531 U.S. 959 (2000). Thus, even though the plaintiffs have brought claims under both statutes, for simplicity's sake we refer only to the ADA claim. A public entity is "any [s]tate or local government" or "any department, agency, special purpose district, or other instrumentality of a [s]tate or [s]tates or local government." 42 U.S.C. § 12131. A "disability" under the ADA is "a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(1). For the purpose of clarity, we use the term pre-ADA for sidewalks, curbs, and parking lots that were built prior to the ADA and have not undergone qualifying alterations.
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No. 08-10630 w h ic h they are entitled to force compliance with the implementing regulations. In so doing, we move in three steps. First, we briefly review our jurisprudence c o n c e r n in g private causes of action to enforce implementing regulations. Second, w e analyze the statutory text. Third, because we conclude that the statutory t e x t is in part ambiguous, we turn to the implementing regulations for guidance. 1. " [P ]r iv a t e rights of action to enforce federal law" are creatures of c o n g r e s s io n a l intent. Sandoval, 523 U.S. at 286. The Supreme Court has r e c o g n iz e d that Title II's anti-discrimination provision, 42 U.S.C. § 12132, is e n fo r c e a b le through a private right of action. Barnes v. Gorman, 536 U.S. 181, 1 8 4 -8 5 (2002). When deciding whether a general private right of action

r e c o g n iz e d under the statutory language carries over to the specifics of the im p le m e n tin g regulations, we ask whether the regulation "effectuates a m a n d a t e " of the statute. Ability Center of Greater Toledo v. City of Sandusky, 3 8 5 F.3d 901, 906-07 (6th Cir. 2004); see Alexander v. Sandoval, 532 U.S. 275, 2 8 5 (2001) (explaining that only if a regulation "simply appl[ies]" the statutory o b lig a t io n s does a right of action to enforce the statute carry over to im p le m e n tin g regulations). Thus, to the extent that the regulations implement a mandate of Title II, plaintiffs would be able to sue to enforce the regulations. 2. B e fo r e turning to the statute, we briefly explain the manner in which we i n t e r p r e t a statute administered by an executive agency. If, using the

t r a d it io n a l tools of statutory construction, we conclude the statute is clear as to t h e precise question at issue, "we must give effect to the unambiguously e x p r e s s e d intent of Congress." Chevron, U.S.A. v. Natural Resources Defense C o u n c il, Inc., 467 U.S. 837, 842-43 (1984). If, however, the statute is ambiguous, w e then defer to the agency's interpretation, if it is reasonable. Id. Where the a g e n c y has promulgated regulations addressing the question, we look first to 7

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No. 08-10630 t h o s e regulations. If the regulations are "ambigu[ous] with respect to the

s p e c ific question considered," Moore v. Hannon Food Serv., 317 F.3d 489, 495 (5 t h Cir.2003); Christensen v. Harris County, 529 U.S. 576, 588 (2000) (finding A u e r deference appropriate "only when the language of the regulation is a m b ig u o u s " ), we defer to the agency's interpretation of its own regulation "unless p la in ly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 4 5 2 , 461 (1997); Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006). Were we a u t o m a t ic a lly to defer to an agency interpretation of an unambiguous regulation, w e would in effect "permit the agency, under the guise of interpreting a r e g u la tio n , to create de facto a new regulation." Christensen, 529 U.S. at 588. With this in mind, we are prepared to undertake an analysis of Title II. i. T it le II provides that no individual with a qualifying disability shall, "by r e a s o n of such disability, be excluded from participation in or denied the benefits o f" state or city provided "services, programs, or activities." 42 U.S.C. § 12132. In Tennessee v. Lane, the Supreme Court recognized that this language prohibits n o t just the discriminatory provision of benefits,7 but also the failure to take r e a s o n a b le measures to make these benefits accessible to persons with d is a b ilitie s . 541 U.S. 509, 531-32 (2004) (citing 42 U.S.C. § 12131(2) and

e x p la in in g that because "[a] failure to accommodate . . . will often have the same p r a c t ic a l effect as outright exclusion, Congress required the States to take reaso n a b le measures to remove architectural and other barriers to

a c c e s s i b i lit y " ). Accordingly, we have stated, in the context of access to public e d u c a t io n , that Title II of the ADA "mandat[es] physical accessibility and the

Intentional discrimination in the provision of otherwise accessible services, programs, or activities, though also clearly prohibited by Title II, is not at issue in this case and need not be considered.

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No. 08-10630 r e m o v a l and amelioration of architectural barriers." Pace v. Bogalusa City S c h o o l Bd., 403 F.3d 272, 291 (5th Cir. 2005). L a t e r cases have made clear that, at least with respect to the R e h a b ilita t io n Act, this obligation extends beyond cases of actual exclusion to c a s e s of constructive exclusion--i.e., a plaintiff need not show it is impossible to a c c e s s the benefits, but only that, considering all of the circumstances, there is a n unreasonable level of difficulty in accessing the benefits. See Alexander v. C h o a te , 469 U.S. 287, 301 (1985) (stating in the context of the Rehabilitation Act t h a t a benefit cannot be offered in a way that "effectively denies" otherwise q u a lifie d handicapped individuals "meaningful access" to which they are e n tit le d ); see also Brennan v. Stewart, 834 F.2d 1248, 1261 (5th Cir. 1988). Other circuits have applied this "meaningful access" standard to ADA claims. See, e.g., Jones v. City of Monroe, Mich., 341 F.3d 474, 479-80 (6th Cir. 2003); Lee v . City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001). We specifically reserved ju d g m e n t on this issue in Melton, 391 F.3d at 672 n.2, but we now conclude that u n d e r the ADA, which was intended to be coextensive with the Rehabilitation A c t , a plaintiff must show that a benefit is being administered in a way that " e ffe c tiv e ly denies" individuals with qualifying disabilities "meaningful access" t o the benefits for which they are qualified.8 W e thus conclude that the statute unambiguously mandates the m o d ific a t io n of certain new, altered, and pre-ADA physical infrastructures to the e x t e n t they "effectively deny" individuals with disabilities from "meaningful a c c e s s " to city services, programs, and activities. Melton, 391 F.3d at 672 n.2. Thus, to the extent the plaintiffs claim that noncompliance with the regulations

"Effective denial" of a benefit is a less demanding requirement for a plaintiff than "exclusion" from a benefit. "Effective denial," however, still requires courts to consider all circumstances, including the degree of hardship on the plaintiff and the reasonableness of the modification given its cost and the availability of substitute services.

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No. 08-10630 e it h e r outright excludes them from or effectively denies them meaningful access t o a service, program, or activity, they have a private cause of action to enforce c o m p lia n c e with the regulations. M a n y of the plaintiffs' allegations meet this standard. The plaintiffs allege t h a t certain of the City's physical infrastructure--sidewalks, curbs, and parking lo t s -- h in d e r them from accessing the City's services, programs, or activities--for e x a m p le , parks, public schools, and polling stations. The district court on

r e m a n d will be able to determine precisely which of the plaintiffs' alleged v io la t io n s are tied to the denial of a service, program, or activity.9 I n some instances, however, the plaintiffs seek the correction of a n o n c o m p lia n t sidewalk, curb, or parking lot without correlating the violation w it h a deprivation of a service, program, or activity. In these cases, the

p la in t iffs argue that a private right of action nevertheless exists because s id e w a lk s , curbs, and parking lots are themselves services, programs, or a c t iv it ie s , access to which they are deprived via noncompliant curb cuts or poorly m a in t a in e d walks. This claim presents an issue of first impression in this circuit a n d we turn to it now. ii. T h e plaintiffs urge that Congress intended Title II to be broad, and they a s k us to recognize sidewalks, curbs, and parking lots, not just in their capacity t o give access to other services, programs, or activities, but as services t h e m s e lv e s .1 0 The plaintiffs argue that sidewalks and parking lots are simply

In making this determination, there should be no set proximity limitation of the sidewalk to the benefit; the requested modification need only be reasonable in the light of all the circumstances, including its costs and whether required to ensure the plaintiff meaningful access to a service, program, or activity. Such matters are properly within the sound discretion of the district court. Other circuits that have considered the issue have, without thorough analysis, interpreted "services, programs, or activities" broadly and have allowed private claims to force cities to update their systems of pedestrian walkways in compliance with Department of
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No. 08-10630 o n e of the panoply of services provided by the City to its citizens. Thus, they s e e m to argue, they have a private cause of action under Title II in any instance, a t any place in the City, to require the City to modify noncompliant sidewalks o r parking lots that are unusable to individuals with disabilities; that is to say, a c c e s s to other services, programs, or activities is an irrelevant consideration. The City disagrees, arguing that sidewalks and parking lots constitute in fr a s t r u c t u r e , which may provide access to, but are not themselves, "services, p r o g r a m s , or activities." We agree with the City, and for the reasons that follow, w e conclude that sidewalks, curbs, and parking lots are not "services, programs, o r activities" within the meaning of Title II. T it le II provides that no individual with a qualifying disability shall "be d e n ie d the benefits of the services, programs, or activities of a public entity . . . ." 42 U.S.C. § 12132. "[S]ervices, programs, or activities" is not defined in the s t a t u t e . We are certain in our own minds, however, that "services, programs, or
Justice regulations. For example, the Ninth Circuit reasoned that "services, programs, or activities" can be construed as "anything a public entity does." Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (internal quotations omitted). Because a sidewalk can be characterized as "a normal function of a government entity," public sidewalks fall within the scope of Title II. Id. (quotation marks and citation omitted). The Sixth Circuit has held that "the phrase `services, programs, or activities' encompasses virtually everything that a public entity does." Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998). On the strength of this interpretation, it has recognized a private right of action to enforce 28 C.F.R. § 35.151, a regulation that establishes accessibility standards for new and altered curbs and sidewalks. Ability Ctr. of Greater Toledo, 385 F.3d at 906-07. Under the Supreme Court's holding in Sandoval, the Sixth Circuit could only decide in this way by finding that 28 C.F.R. § 35.151 "simply appl[ies]" the obligations of Title II, in other words, by finding that new and altered sidewalks and curbs are a "service, program, or activity." The Second and Third Circuits have also read "services, programs, or activities" broadly. The Second Circuit has called the language "a catch-all phrase that prohibits all discrimination by a public entity, regardless of context," and has counseled against "hair-splitting arguments" over what falls within its reach. Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997). The Third Circuit has similarly held the language "is intended to apply to anything a public entity does." Yeskey v. Com. of Pa. Dep't of Corrections, 118 F.3d 168, 171 (3d Cir. 1997) (quotation marks and citation omitted).

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No. 08-10630 a c t iv it ie s " is not "anything a public entity does," as the Ninth Circuit has said in Barden, 292 F.3d at 1076; the statute's definition for "qualified individual w it h a disability" indicates as much. A "qualified individual with a disability" is one who "with or without . . . the removal of . . . transportation barriers . . . m e e t s the essential eligibility requirements for the receipt of services or the p a r tic ip a t io n in programs or activities provided by a public entity." 42 U.S.C. § 1 2 1 3 1 (2 ) (emphasis added). Thus, we think it is clear that Congress

c o n t e m p la t e d that some physical infrastructures constitute a different category fr o m the "services" to which they provide access. A b s e n t a statutory definition or definitive statutory clue, a word "must be g iv e n its ordinary, `everyday meaning.'" See United States v. Hildenbrand, 527 F .3 d 466, 476 (5th Cir. 2008) (quoting Watson v. United States, 552 U.S. 74, 79 (2 0 0 7 )). The definitions for "service"1 1 include "[t]he duties, work, or business p e r fo r m e d or discharged by a public official," and "the provision, organization, o r apparatus for . . . meeting a general demand." MERRIAM-WEBSTER'S THIRD N EW INTERNATIONAL DICTIONARY 2075 (1993). When, for instance, a public e n tit y provides or maintains a sidewalk, or its accompanying curbs, or public p a r k in g lots, it arguably creates an "apparatus for . . . meeting a general d e m a n d ," but it does not perform "work . . . by a public official." Furthermore, t h e concept of infrastructure is usually inanimate; this suggests that while in fr a s t r u c t u r e may aid in the provision of other services, it is not considered a s e r v ic e itself.1 2 I n short, the statute's "qualified individual with a disability" definition s u g g e s t s a distinction between certain physical infrastructure on the one hand

If sidewalks, curbs, and parking lots fall within the statutory language, we believe it must be as a "service," though the outcome of our analysis would be the same were sidewalks, curbs, and parking lots considered a "program" or "activity."
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For example, a bus is a "facility" that provides the service of transportation.

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No. 08-10630 a n d services, programs, and activities on the other. However, as other circuits h a v e indicated, "services" might be broadly understood to include at least some in fr a s t r u c t u r e s , including sidewalks. Thus, whether sidewalks, curbs, and

p a r k in g lots are properly considered infrastructure or services is unclear; the s t a t u t o r y language does not rule out the possibility that, for example, some s t r u c t u r e s used for transportation might be considered to constitute a service. Thus, we cannot conclude that the statutory language unambiguously excludes c it ie s ' and states' physical infrastructure as distinct from the panoply of less t a n g ib le benefits cities and states offer to their residents, even though it is often t h r o u g h and by these infrastructures that the services are delivered. B e c a u s e of this ambiguity, we defer to the agency interpretation if it r e p r e s e n t s a reasonable interpretation of the statutory meaning. We begin with t h e regulations and turn to other sources only if the regulations are ambiguous. Here, the regulations promulgated by the Department of Justice, which appear a t 28 C.F.R. Part 35, are organized into a number of parts. Subpart B contains g e n e r a l requirements. Included therein is a regulation setting forth the general p r o h ib it io n against discrimination; it essentially repeats the language of Title I I 's anti-discrimination provision in full, with one minor change.1 3 28 C.F.R. § 3 5 .1 3 0 . Subpart D deals with the modification of "facilities" to achieve the s t a t u t o r y requirement of accessibility to programs, services, and activities. Id. a t §§ 35.149-159 ("Subpart D. Program Accessibility"). The first provision in S u b p a r t D sets out a general prohibition forbidding the exclusion of individuals w ith disabilities from "services, programs, or activities" because "a public entity's fa c ilit ie s are inaccessible to or unusable by individuals with disabilities." Id. at § 35.149. By definition, facilities are the public entity's infrastructure--"all or a n y portion of buildings, structures, sites, complexes, equipment, rolling stock
The regulation replaces the language "by reason of such disability" with "on the basis of disability."
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No. 08-10630 o r other conveyances, roads, walks, parking lots, or other real or personal p r o p e r t y . . . ." Id. at § 35.104. Subsequent provisions of the regulation explain what this requirement of p r o g r a m accessibility means with respect to a public entity's facilities. As to

e x is t in g facilities, a public entity need not necessarily "make each of its existing fa c ilit ie s accessible." Id. at § 35.150. Instead, facilities need to be modified only t o the extent that the service, program, or activity at issue is not readily a c c e s s ib le when viewed in its entirety. As to new facilities, or facilities altered in a way that could affect the usability of the facility, the new or altered part m u s t be readily accessible and usable by individuals with disabilities. Id. at § 3 5 .1 5 1 . The regulations go on to mandate the addition of curb ramps at the in t e r s e c t io n of newly constructed or altered pedestrian walkways and newly c o n s t r u c t e d or altered streets, roads, and highways. Id. at § 35.151(e). A few principles can be drawn from the language and regulatory structure w h ic h , when considered together, make clear that sidewalks, curbs, and parking lo t s are not "services, programs, or activities." First, under the regulations, s id e w a lk s , curbs, and parking lots are specifically defined as facilities and are c lu s t e r e d with items that clearly do not qualify as "services, programs, or a c t iv it ie s ," such as equipment and sites.1 4 We can safely assume that this was n o t a mistake. This alone strongly suggests we read sidewalks, curbs, and p a r k in g lots as falling outside the statutory "services, programs, or activities." S e c o n d , unless we consider the regulatory language to be contradictory, f a c ilit ie s cannot merely be a subset of "services, programs, and activities." 28 C .F .R . § 35.149 prohibits "inaccessible and unusable" "facilities" that exclude

In its entirety, the definition reads: "Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located."

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No. 08-10630 in d iv id u a ls with disabilities from "services, programs, or activities." If some fa c ilit ie s were also "services, programs, or activities," then the regulations, in at l e a s t some cases, would actually forbid "inaccessible and unusable" "services, p r o g r a m s , or activities" that exclude individuals with disabilities from "services, p r o g r a m s , or activities." We cannot believe that this interpretation is correct. The only sensible reading is that the categories are mutually exclusive and if s id e w a lk s , curbs, and parking lots were intended to be treated as "services, p r o g r a m s , or activities," they would have been left out of the facilities definition a lto g e th e r . T h ir d , the implementation of a unique framework of regulatory r e q u ir e m e n t s for facilities, §§ 35.150-151, belies any attempt to equate facilities w it h "services, programs, or activities." If facilities were themselves "services, p r o g r a m s , or activities," they would be subject to the regulatory language in § 3 5 .1 4 91 5 mandating some degree of immediate accessibility. This requirement w o u ld render superfluous the facilities regulations in § 35.150-151, which e n v is io n a phasing-in of compliant facilities with a focus on achieving general a c c e s s ib ilit y to other programs, services, or activities, rather than immediate c o m p lia n c e with a focus on making facilities themselves accessible. G i v e n the explicit identification of sidewalks, curbs, and parking lots as fa c ilit ie s ; the relationship between facilities and services, programs, and a c t iv it ie s in § 35.149; and the creation of regulations unique to facilities in §§ 3 5 . 1 5 0 -1 5 1 , the regulations clearly indicate to us that sidewalks, curbs, and p a r k in g lots are covered by the statute, not as "services," but in their capacity a s gateways to "services, programs, or activities," i.e., as facilities.

It reads: "[N]o qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." 28 C.F.R. § 35.149.

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No. 08-10630 A c c o r d in g ly , we hold that in the light of the implementing regulations, s i d e w a lk s , curbs, and parking lots are not "services, programs, or activities." Because the statute mandates modifications only where an individual with a d is a b ilit y cannot access a service, program, or activity, the regulations requiring m o d ific a t io n s to sidewalks, curbs, and parking lots in instances where these fa c ilit ie s do not prevent access to some service, program, or activity do not e ffe c t u a t e a statutory mandate. Plaintiffs thus do not have a private cause of a c t io n to enforce the regulatory requirements as they relate to these non-accessd e n y in g sidewalks, curbs, and parking lots. I II .1 6 N o w we are prepared to consider the issue addressed by the district c o u r t-- w h e t h e r the plaintiffs' claims are time-barred. First, we address the p la in t iffs ' argument that statutes of limitation do not apply to claims seeking o n ly injunctive relief. Second, we identify the proper statute of limitations. Third, we consider when the plaintiffs' claims accrued. W e reject the plaintiffs' assertion that the statute of limitations does not a p p ly to their claims because they seek only injunctive relief. The plaintiffs cite V oices for Independence v. Pennsylvania Department of Transportation, 2007 WL 2 9 0 5 8 8 7 (W.D. Pa.), a district court opinion that held a statute of limitations did n o t apply in an ADA case seeking only equitable relief. Id. at *16-17. That o p in io n , in addition to being nonbinding, is also unpersuasive in the light of the fa c t that courts regularly apply statutes of limitation to claims under Title III

Because we hold that there is no private cause of action to challenge sidewalks, curbs, and parking lots unless the noncompliance results in a denial of access to a service, program, or activity, we need not address statute of limitations issues with the claims alleging that sidewalks, curbs, and parking lots are themselves services, programs, or activities. Such claims are not cognizable in a private lawsuit.

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No. 08-10630 o f the ADA, for which only injunctive relief is available.1 7 See, e.g., Gaona v.

T o w n & Country Credit, 324 F.3d 1050, 1054-56 (8th Cir. 2003) (applying M in n e s o t a 's six-year statute of limitations to Title III claim for injunctive relief); P ic k e r n v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 n.2 (9th Cir. 2002) (h o ld in g ongoing violation brought Title III claim for injunctive relief within C a lifo r n ia 's one-year limitations period); Sexton v. Otis Coll. of Art & Design Bd. o f Directors, 129 F.3d 127, 127 (9th Cir. 1997) (applying California's one-year s t a t u t e of limitations to Title III claim for injunctive relief); Soignier v. Am. Bd. o f Plastic Surgery, 92 F.3d 547 (7th Cir. 1996), cert. denied, 519 U.S. 1093 (1997) (a p p ly in g Illinois's two-year statute of limitations to Title III claim for injunctive r e lie f). This court has recently held that statutes of limitations apply to § 1983 a c t io n s that seek only injunctive relief. See Walker v. Epps, 550 F.3d 407, 414 (5 t h Cir. 2008). We decline to treat the plaintiffs' Title II claims differently. N o w , with respect to the application of the correct limitations period, we b e g i n by noting that neither Title II of the ADA nor the Rehabilitation Act p r o v id e s a limitations period, and the general federal statute of limitations does n o t apply to either statute.1 8 We have previously held, however, that the Texas t w o -y e a r statute of limitations for personal injury claims applies in Title II cases file d in Texas federal courts. Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84

Remedies available under Title III of the ADA are the same as those under Title II of the Civil Rights Acts of 1964, 42 U.S.C. § 2000, for which there is only injunctive relief. 42 U.S.C. § 12188(a); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (Title II of the Civil Rights Acts of 1964 provides injunctive relief only). Title II adopts the remedies, procedures, and rights of the Rehabilitation Act. 42 U.S.C. § 12133. The limitations period in Rehabilitation Act cases is governed by 42 U.S.C. § 1988(a). That statute directs courts to apply federal law if it provides a limitations period or, if it does not, apply common law, as modified by state law, if it is not inconsistent with the Constitution or laws of the United States. See, e.g., Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998) (citing Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir. 1992)). For Title II claims courts borrow the state statute of limitations from the most analogous state law claim.
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No. 08-10630 (5 t h Cir. 1998); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2007). The district court thus applied the correct two-year statute of limitations. T h e Supreme Court has been clear that a claim accrues when the plaintiff k n e w or should have known that the discriminatory act occurred. See Chardon v . Fernandez, 454 U.S. 6, 8 (1981) ("the proper focus is on the time of the d is c r im in a to r y act, not the point at which the consequences of the act become p a in fu l" (citing Del. St. Coll. v. Ricks, 449 U.S. 250, 258 (1980)). Here, the d is c r im in a t o r y act is the denial of access to the service, program, or activity. A p la in t iff thus has two years, from the time she knew or should have known that s h e was denied access to a service, program, or activity, to challenge the a r c h it e c t u r a l barriers causing the exclusion. This is a fact question that must b e determined by the fact-finder. B e c a u s e the plaintiffs failed to plead that their injuries occurred within t w o years of the filing of their complaint, the district court dismissed their a c tio n . However, as always, the defendant has the burden of establishing

a ffir m a t iv e defenses, including a statute of limitations, and so it is the City's o b lig a t io n to demonstrate expiration of the limitations period. FED. R. CIV. P. 8 (" I n responding to a pleading, a party must affirmatively state any avoidance or a ffir m a t iv e defense, including . . . statute of limitations[.]"); see also In re H in s le y , 201 F.3d 638, 644-45 (5th Cir. 2000) (Under Texas law, "[a] party a s s e r t in g limitations must establish the applicability of the limitations statute, b u t must, as well, prove when the opponent's cause of action accrued[.]"(quoting I n te r m e d ic s , Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App. 1984, writ refused n .r .e .)). In this respect the district court erred. I n summary: Plaintiffs' claims are subject to a two-year statute of lim it a t io n s ; plaintiffs' claims accrue when they knew or should have known that t h e y are denied access to a service, program, or activity; and the burden is on the

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No. 08-10630 d e f e n d a n t to prove its affirmative defense that the statute of limitations has e x p ir e d . IV . W e recap the holdings of this opinion: Title II mandates that cities take r e a s o n a b le steps to modify infrastructure that "effectively denies" individuals w it h disabilities access to programs, services, and activities. We hold that curbs, s id e w a lk s , and parking lots do not constitute a service, program, or activity w it h in the meaning of Title II of the ADA. Accordingly, plaintiffs have

e s t a b lis h e d cognizable claims under Title II only to the extent they have alleged a noncompliant sidewalk, curb, or parking lot denies them access to a program, s e r v ic e , or activity that does fall within the meaning of Title II. As to their c la im s that meet this standard, the district court correctly held the plaintiffs' c la im s were subject to a two-year statute of limitations. These claims accrued o n the date the plaintiffs knew or should have known they were denied access t o a program, service, or activity on account of the noncompliant facility. However, the district court improperly burdened the plaintiffs with proving a c c r u a l within the two years preceding the filing of their complaint. We

t h e r e fo r e VACATE the district court's judgment of dismissal and REMAND for s u c h further proceedings not inconsistent with this opinion. VACATED and REMANDED.

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No. 08-10630 P R A D O , Circuit Judge, concurring in part and dissenting in part: A lt h o u g h my colleagues granted rehearing and now hold that the statute o f limitations applicable to the plaintiffs' claims here begins to run when the in d iv id u a l plaintiff was denied a service, program, or activity,1 the majority has p e r fo r m e d an about-face, and now also holds that sidewalks, curbs, and parking lo t s2 are not services under the ADA. While I agree that we must remand this c a s e , I cannot agree with the majority's novel approach to coverage under the A D A , and once again I must dissent.3 I believe that characterizing sidewalks as " fa c ilit ie s ," and thereby limiting private causes of action under the ADA, is not s u p p o r t e d by the statute, regulations, or caselaw. I fear that the majority d e p a r t s dramatically from congressional intent and creates a distinction that is u n w o r k a b le and ultimately meaningless. I. T h e majority asks whether sidewalks "are services themselves." Maj. Op. a t 10. This is not the correct inquiry. The question is not whether the physical s t r u c t u r e s that compose the sidewalks are a service; rather, it is whether a city p r o v id e s a service through the construction, maintenance, or alteration of those s id e w a lk s . The answer, of course, is yes. See Barden v. City of Sacramento, 292 F .3 d 1073, 1074, 1076 (9th Cir. 2002) ("We must decide whether public s id e w a lk s . . . are a service, program, or activity . . . within the meaning of [the A D A ]. We hold that they are . . . . [because] maintaining public sidewalks is a n o r m a l function of a city . . . ."). A public entity that constructs a sidewalk

1

For simplicity, I refer to "services, programs, and activities" simply as "services." Similarly, for simplicity, I refer to "sidewalks, curbs, and parking lots" as "sidewalks."

2

Because the majority now recognizes that "[a] plaintiff . . . has two years, from the time she knew or should have known that she was denied access to a service, program or activity, to challenge the architectural barriers causing the exclusion," I concur in Part III of the majority's opinion. Maj. Op. at 18.

3

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No. 08-10630 p e r fo r m s a public service. Asking whether sidewalks themselves are a service e n g a g e s in the type of "hair-splitting" cautioned against by our sister circuits. See Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44­45 (2d C ir . 1997) (holding that the zoning decisions of a public entity are covered by the A D A "because making such decisions is a normal function of a government e n tit y " ). The majority's approach does not comport with the plain, unambiguous t e x t of the ADA; thus we need not look to the regulations or congressional intent. E v e n if we do, however, the majority's approach is not supported by the p r o m u lg a t e d regulations and does not satisfy the intent of Congress. A. T it le II provides that "no qualified individual with a disability shall, by r e a s o n of such disability, be excluded from participation in or be denied the b e n e fits of the services, programs, or activities of a public entity, or be subjected t o discrimination by any such entity." 42 U.S.C. § 12132. In our original o p in io n , we reasoned: A m o n g the definitions for "service" is "a facility supplying some p u b lic demand." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1137 (1 1 t h ed. 2003). When, for instance, a public entity provides a s id e w a lk , or its accompanying curbs, or public parking lots, it p r o v id e s "a facility supplying some public demand." Because p r o v id in g curbs, sidewalks, and parking lots is a service within the o r d in a r y , "everyday meaning" of that word, we hold that those fa c ilit ie s also constitute a "service" within the meaning of Title II. F r a m e v. City of Arlington, 575 F.3d 432, 437 (5th Cir. 2009). I continue to a g r e e with this reasoning. The majority's new opinion, however, adopts a new d e fin it io n to arrive at a very different result: T h e definitions for "service" include "[t]he duties, work, or business p e r fo r m e d or discharged by a public official," and "the provision, 21

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No. 08-10630 o r g a n iz a t io n , or apparatus for . . . meeting a general demand." M ERRIAM-W EBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2075 (1 9 9 3 ) . When, for instance, a public entity provides or maintains a sidewalk, or its accompanying curbs, or public parking lots, it a r g u a b ly creates an "apparatus for . . . meeting a general demand," b u t it does not perform "work . . . by a public official." Maj. Op. at 12. I do not think that two definitions from dueling MerriamW e b s te r 's dictionaries justify changing our approach to this case. Indeed, either d e fin it io n encompasses a broad reading of services. When a public entity

c o n s t r u c t s , maintains, or alters a sidewalk, it performs the "work" traditionally u n d e r t a k e n by a municipality, and thereby provides a public service. In a show of impressive solidarity, our sister circuits have consistently h e ld that coverage under "services, programs, and activities" is unambiguous a n d should be broadly construed.4 The majority's opinion dismisses the work o f our sister circuits in a footnote, disregarding their interpretation of the ADA a n d asserting that they considered the issue "without thorough analysis." Maj. O p . at 10 n.10. On the contrary, I believe that the Ninth Circuit, in Barden,

Barden, 292 F.3d at 1076 ("Rather than determining whether each function of a city can be characterized as a service, program, or activity for purposes of Title II, however, we have construed the ADA's broad language [as] bring[ing] within its scope anything a public entity does.") (quotations and citations omitted); Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998) ("[W]e must acknowledge that our conclusion--that the discrimination forbidden by § 12132 must be with regard to services, programs, or activities--is for the most part a distinction without a difference. This is because we find that the phrase `services, programs, or activities' encompasses virtually everything that a public entity does."); Yeskey v. Comm. of Pa. Dep't of Corr., 118 F.3d 168, 171 (3d Cir. 1997) ("The statutory definition of `[p]rogram or activity' in Section 504 indicates that the terms were intended to be allencompassing. They include `all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government . . . any part of which is extended Federal financial assistance.") (quoting 29 U.S.C. § 794(b)) (emphasis added); Innovative Health Sys., 117 F.3d at 44 ("The ADA does not explicitly define `services, programs, or activities.' Section 508 of the Rehabilitation Act, however, defines `program or activity' as `all of the operations' of specific entities . . . .'") (quoting 29 U.S.C. § 794(b)(1)(A)), superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001).

4

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No. 08-10630 t h o r o u g h ly considered the text of the statute, regulations, and legislative h is t o r y of the ADA provisions at issue here. The Ninth Circuit answered the same question presented in this case,5 a n d held that "maintaining public sidewalks is a normal function of a city and w it h o u t a doubt something that the [city] does. Maintaining their accessibility fo r individuals with disabilities therefore falls within the scope of Title II." Id. a t 1076 (emphasis added) (citation and internal quotations omitted). Contrary t o the approach taken by the majority opinion, the Ninth Circuit focused its in q u ir y "not . . . on whether a particular public function can technically be c h a r a c te r iz e d as a service, program, or activity, but whether it is `a normal fu n c t io n of a governmental entity.'" Id. (quoting Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 731 (9th Cir. 1999)). We r e lie d on Barden in the previous opinion, see Frame, 575 F.3d at 436­37, and I am convinced that this reliance was well-placed. The majority states that it "cannot conclude that the statutory language u n a m b ig u o u s ly excludes cities' and states' physical infrastructure as distinct fr o m the panoply of less tangible benefits cities and state offer to their r e s id e n t s ." Maj. Op. at 13. However, I interpret the language of the statute as p r o v id in g broad coverage, encompassing both the intangible services offered by p u b lic entities and the act of offering tangible goods. a m b ig u o u s simply because it offers expansive coverage. A statute is not

B. T h e statute is unambiguous. Thus, we need not turn to the Department o f Justice's regulations. Assuming that we should, however, a plain-reading of

"We must decide whether public sidewalks in the City of Sacramento are a service, program, or activity of the City within the meaning of Title II of the [ADA] or [the Rehabilitation Act]." Barden, 290 F.3d at 1074.

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No. 08-10630 t h e regulations demonstrates that providing sidewalks is a public service. In t h e preamble to its regulations, the Department of Justice explains: The scope of title II's coverage of public entities is comparable to the c o v e r a g e of Federal Executive agencies under the 1978 amendment t o section 504, which extended section 504's application to all p r o g r a m s and activities `conducted by' Federal Executive agencies, in that title II applies to anything a public entity does. 28 C.F.R. pt. 35, app. A at 456 (1996) (emphasis added). T h e majority's opinion looks to Subpart D of the regulations to define " fa c ilit ie s ." Maj. Op. at 13 (citing 28 C.F.R. § 35.1149­59). The opinion then r e a s o n s that because physical structures such as sidewalks are defined as fa c ilit ie s and "clustered with items that clearly do not qualify as `services, p r o g r a m s , or activities,'" they cannot be considered services. Maj. Op. at 14. The majority concludes that because only the regulations which apply to s e r v ic e s are actionable, a private cause of action exists only for the sidewalks w h ic h facilitate a service. Although the regulations may set apart facilities from services, nothing in the regulations suggests that when a public entity provides those facilities, it does not provide a service. Indeed, when a municipality constructs a new fa c ilit y , or alters an existing one, it must comply with the ADA. See 28 C.F.R. § 35.151(a) & (b). Curb ramps and sidewalks are specifically mentioned in 28 C .F .R . § 35.151(e)(2), which requires that "[n]ewly constructed or altered street le v e l pedestrian walkways must contain curb ramps or other sloped areas at in t e r s e c t io n s to streets, roads, or highways." When a public entity is charged w it h providing new or altered facilities in compliance with the ADA, the r e g u la t io n s do not require that those facilities relate to a covered service.

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No. 08-10630 S im ila r ly , there is no limitation that a sidewalk must take the traveler to a " s e r v ic e ." 6 A g a in , I think that the majority opinion's approach asks the wrong q u e s t io n . It is not the sidewalks themselves that we should concern ourselves w it h ; it is the construction, modification, or alteration of sidewalks that is the " s e r v ic e ." The failure of the public entity to construct, alter, or maintain

s id e w a lk s in compliance with the ADA is actionable within the scope of the r e g u la t io n s . C. A lt h o u g h I do not believe it is necessary to look to the legislative history, C o n g r e s s io n a l adoption materials support a broad reading of the ADA. In the a c c o m p a n y in g House Report, Congress stated that Title II "simply extends the a n t i-d is c r im in a tio n prohibition embodied in section 504 [of the Rehabilitation A c t ] to all actions of state and local governments." H.R. Rep. No. 101-485(II), a t 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (emphasis added); see also id . at 151, reprinted in 1990 U.S.C.C.A.N. 303, 434 ("Title II . . . makes all a c tiv itie s of State and local governments subject to the types of prohibitions a g a in s t discrimination . . . included in section 504 . . . .") (emphasis added). When a public entity acts, its actions necessarily fall within the coverage of the A D A and section 504 of the Rehabilitation Act. "[T]he elimination of architectural barriers was one of the central aims o f the Rehabilitation Act." Alexander v. Choate, 469 U.S. 287, 297 (1985) (citing

Although it is merely illustrative of the scope of the regulations and not of a private right of action, under 28 C.F.R. § 35.150(d)(2), public entities are required to develop a transition plan for ADA compliance, including a "schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act . . . followed by walkways serving other areas." Sidewalks serving public entities are given priority, but the Department of Justice saw fit to include all manner of destinations within the "other areas" catchall. That the regulation has such broad scope seems to run contrary to the majority's requirement that a sidewalk must lead to a "service."

6

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No. 08-10630 S . Rep. No. 93-318, p.4 (1973), U.S. Code Cong. & Admin. News 1973, pp. 2076, 2 0 8 0 )). And, as this Circuit has elaborated, the purpose of the ADA and

s e c tio n 504 "is the elimination of discrimination against individuals with d is a b ilit ie s . . . [by] [m]andating physical accessibility and the removal and a m e lio r a t io n of architectural barriers." Pace v. Bogalusa City Sch. Bd., 403 F .3 d 272, 291 (5th Cir. 2005) (en banc). It would be contrary to the purpose of t h e ADA for a public entity to erect non-compliant sidewalks. There exists further indication that Congress did not intend for courts to d r a w the type of distinction offered in the majority's opinion.7 Congress was p a r t ic u la r ly clear on the subject of curb cuts--a portion of the plaintiffs' claims h e r e -- sta tin g that: "[t]he employment, transportation, and public

a c c o m m o d a tio n sections of this Act would be meaningless if people who use w h e e lc h a ir s were not afforded the opportunity to travel on and between the s t r e e t s ." H. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990), reprinted in 1 9 9 0 U.S.C.C.A.N. 267, 367. Therefore, "under this title, local and state

g o v e r n m e n t s are required to provide curb cuts on public streets." Id. Nowhere in the legislative history do the architects of the ADA suggest t h a t the ADA does not cover a public entity's actions with regard to its s id e w a lk s . If anything, the clear indications that Congress intended the ADA

7

As explained by one of the ADA's proponents:

Title II covers the range of services, programs and benefits offered by State and local governments, without a requirement that such programs or activities received Federal financial assistance. Thus, title II extends to whatever spheres of authority a State or local government is involved in--including employment, health and service programs, the streets--which require curb-cuts--and the facilities owned or operated by such governments. 136 CONG. REC. E1913-01, E1916 (daily ed. May 22, 1990) (statement of Rep. Hoyer) (emphasis added). Nothing in the above quote indicates that "the streets" should be treated differently than employment or heath and service programs.

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No. 08-10630 t o encourage (and sometimes mandate) the evenhanded offering of public s e r v ic e s , should caution against the majority's opinion's distinctions. II. In addition to the statutory analysis performed in Part I, I am concerned b y the broader implications of the majority's approach; namely, there is no p r e c e d e n t to support the majority's distinction and the new standard is u n w o r k a b le . A. T h e majority's opinion offers no caselaw to support its new analysis. Considering the potential implications of the majority's novel approach, and g iv e n the clear intent of Congress described above, this dearth of precedent is t r o u b l i n g .8 A d d it io n a lly , I am unable to locate a single circuit court case that could s u p p o r t the majority's opinion even by analogy or extrapolation. Kinney v. Y e r u s a lim , from the Third Circuit, provides some analogous support for a d is t in c tio n between the treatment of existing facilities and new constructions a n d alterations. See 9 F.3d 1067, 1072 (3d Cir. 1993) (finding that street r e s u r fa c in g is an "alteration" under 28 C.F.R. § 35.151(b), and thereby requiring c u r b cuts under 28 C.F.R. § 35.151(e)). Although the regulations place different b u r d e n s on municipalities with regard to existing facilities and new or altered fa c ilit ie s , compare 28 U.S.C. § 35.150(a) & (b), with id. § 35.151(b), even Kinney

My research reveals only a single federal case that supports the majority's new analysis. In New Jersey Protection and Advocacy, Inc. v. Township of Riverside, No. 04-5914, 2006 WL 2226332, at *3 (D.N.J. Aug. 2, 2006), a district court held that sidewalks were not "in and of themselves, programs, services, or activities for the purpose of the ADA's implementing regulations." Obviously, an unpublished district court case from another circuit does not control our analysis. Nor does the district court's opinion alter my belief that we should look to the act of providing, maintaining, and altering the sidewalk as the covered service.

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No. 08-10630 s u p p o r ts a broad reading of covered services and cannot be extended to assist t h e majority's approach.9 T h e majority's opinion creates a split with the Ninth Circuit and is u n s u p p o r t e d by any of our sister circuits. While the absence of caselaw on point o r analogous treatment is not dispositive, the Barden opinion and the great w e ig h t of caselaw supporting a broad reading of the ADA, supra note 4, forces m e to doubt the validity of the majority's new analysis.

B. T h e majority's opinion draws a distinction between tangible facilities and in t a n g ib le services. This distinction will not work when applied to the

n u m e r o u s mixed tangible/intangible services rendered by public entities. Take, fo r example, a public park. The park has intangible aspects: entertainment, r e s p it e , and fresh air. But it also has tangible aspects: the pathways, drinking fo u n t a in s , and green spaces. Can we separate the tangible aspects from the in ta n g ib le ? Or are the tangible aspects of a park so interwoven with the

in t a n g ib le that any attempt at separation is futile? When applied to this park h y p o t h e t ic a l, I think that the merits of our original treatment of the scope of
Kinney considered whether the resurfacing of city streets constituted an "alteration" under the regulations. 9 F.3d at 1069. At no point did the Third Circuit draw a distinction between streets and the service of providing them: If a street is to be altered to make it more usable for the general public, it must also be made more usable for those with ambulatory disabilities. At the time that the City determines that funds will be expended to alter the street, the City is also required to modify the curbs so that they are no longer a barrier to the usability of the streets by the disabled. Id. A street is also named as a "facility." See 8 C.F.R. § 35.104. And, obviously, a street is merely a physical structure akin to the sidewalks at issue here. Yet nowhere in Kinney did the Third Circuit imply that the street must lead an individual to a public service or be used by buses for public transport. It is enough that the public entity has decided to alter the street to bring the alteration within the ambit of ADA compliance.
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No. 08-10630 s e r v ic e s are readily apparent. When a public entity decides to build a p