RICHARD FRAME WENDELL DECKER SCOTT UPDIKE MARK HAMMAN JOEY SALAS v. CITY OF ARLINGTON

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United States Court of Appeals, Fifth Circuit.

RICHARD FRAME;  WENDELL DECKER;  SCOTT UPDIKE;  J N, a minor, by his next friend and mother Gabriela Castro;  MARK HAMMAN;  JOEY SALAS Plaintiffs—Appellants v. CITY OF ARLINGTON, A Municipal Corporation Defendant—Appellee

No. 08–10630

    Decided: September 15, 2011

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.*  BENAVIDES and PRADO, Circuit Judges:  Title II of the Americans with Disabilities Act (ADA),1 like § 504 of the Rehabilitation Act,2 provides that individuals with disabilities shall not “be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”   For nearly two decades, Title II's implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities.   The plaintiffs-appellants in this case, five individuals with disabilities, allege that defendant-appellee the City of Arlington (the City) has recently built and altered sidewalks that are not readily accessible to them.   The plaintiffs brought this action for injunctive relief under Title II and § 504.   We must resolve two issues.   First, we must determine whether Title II and § 504 (and their implied private right of action) extend to newly built and altered public sidewalks.3  Second, we must determine whether that private right of action accrued at the time the City built or altered its inaccessible sidewalks, or alternatively at the time the plaintiffs first knew or should have known they were being denied the benefits of those sidewalks.   We hold that the plaintiffs have a private right of action to enforce Title II and § 504 with respect to newly built and altered public sidewalks, and that the right accrued at the time the plaintiffs first knew or should have known they were being denied the benefits of those sidewalks.   I The plaintiffs in this case depend on motorized wheelchairs for mobility.   They allege that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks allegedly were built or altered by the City after Title II became effective on January 26, 1992.4  The plaintiffs sued the City on July 22, 2005, claiming that the inaccessible sidewalks violate Title II of the ADA and § 504 of the Rehabilitation Act. The complaint was most recently amended on August 9, 2007.   The plaintiffs seek injunctive relief but not damages.   The district court dismissed the plaintiffs' complaint on statute-of-limitations grounds.   The district court determined that the plaintiffs' claims accrued, and the relevant two-year limitations period began to run, on the date the City finished building or altering any inaccessible sidewalk.   After requiring the plaintiffs to “replead their case and allege specific dates of the City's alteration or construction efforts,” the district court dismissed the complaint because it did not allege dates of construction or alteration within two years of July 22, 2005.   On appeal, a panel of this Court began by considering whether the plaintiffs had a private right of action to enforce Title II with respect to inaccessible sidewalks.   The panel unanimously held that the plaintiffs had such a right because public sidewalks are “services, programs, or activities” of a public entity within the plain meaning of Title II.5 The panel next considered whether the plaintiffs' claims were barred by Texas's two-year personal-injury statute of limitations.   The panel determined that the statute of limitations is an affirmative defense on which the defendant has the burden of proof, and that the district court erred in requiring the plaintiffs to plead dates of construction in their complaint.   The panel would have remanded for further proceedings.   One member of the panel dissented, however, with respect to the panel majority's finding that the plaintiffs' claims “accrued on the date the City completed the construction or alteration of any noncompliant” sidewalk.6  According to the dissenting judge, the plaintiffs' claims did not accrue until the plaintiffs “physically encounter[ed], or actually learn[ed] of and [were] deterred from attempting to access, a noncompliant sidewalk.” 7  Both parties petitioned for rehearing en banc.   The panel majority withdrew its initial opinion and issued a revised opinion.8  In the revised opinion, the panel majority determined that sidewalks were not “services, programs, or activities of a public entity” within the meaning of Title II. The panel majority thus held that the plaintiffs did not have a private right of action to enforce Title II with respect to sidewalks “in instances where these facilities do not prevent access to some [other] service, program, or activity.” 9  The panel majority would have remanded the case “only to the extent [the plaintiffs] have alleged a noncompliant sidewalk, curb, or parking lot denies them access to a program, service, or activity that does fall within the meaning of Title II.” 10 With respect to the statute of limitations, however, the panel unanimously found that the plaintiffs' claims did not accrue until the plaintiffs “knew or should have known” they were denied the benefits of the City's services, programs, or activities .11 A member of the panel again dissented, asserting that the construction, alteration, and maintenance of public sidewalks unambiguously are services, programs, or activities of a public entity within the plain meaning of Title II.12 We granted the plaintiffs' second petition for rehearing en banc.   At oral argument, the plaintiffs unequivocally abandoned any claims with respect to sidewalks built on or before (and not altered after) January 26, 1992.   Accordingly, we deem the plaintiffs' claims with respect to such sidewalks waived and abandoned.13  All that remain to be considered are the plaintiffs' claims with respect to sidewalks built or altered after January 26, 1992.   We refer to such sidewalks as newly built or altered sidewalks.   II We review de novo a district court's dismissal of a complaint under Rule 12(b)(6).14  “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” 15  A claim for relief is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16  III It is established that Title II of the ADA and § 504 of the Rehabilitation Act are enforceable through an implied private right of action.   The issue is whether these statutes (and their established private right of action) extend to newly built and altered public sidewalks.17  Based on statutory text and structure, we hold that Title II and § 504 unambiguously extend to newly built and altered public sidewalks.   We further hold that the plaintiffs have a private right of action to enforce Title II and § 504 to the extent they would require the City to make reasonable modifications to such sidewalks.   A 1 The ADA is a “broad mandate” of “comprehensive character” and “sweeping purpose” intended “to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.” 18  Title II of the ADA focuses on disability discrimination in the provision of public services.   Specifically, Title II, 42 U.S.C. § 12132, provides that “no qualified individual with a disability shall, by reason of such disability, 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 such entity.”   Section 504 of the Rehabilitation Act prohibits disability discrimination by recipients of federal funding.   Like Title II, § 504 provides that no qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 19  The ADA and the Rehabilitation Act generally are interpreted in pari materia.20  Indeed, Congress has instructed courts that “nothing in [the ADA] shall be construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the Rehabilitation Act ․ or the regulations issued by Federal agencies pursuant to such title.” 21  The parties have not pointed to any reason why Title II and § 504 should be interpreted differently in this case.   Although we focus primarily on Title II, our analysis is informed by the Rehabilitation Act, and our holding applies to both statutes.   As mentioned, there is no question that Title II and § 504 are enforceable through an implied private right of action.22  Moreover, to the extent Title II's implementing regulations “simply apply” Title II's substantive ban on disability discrimination and do not prohibit conduct that Title II permits, they too are enforceable through Title II's private right of action.23  This is because when Congress intends a statute to be enforced through a private right of action, it also “intends the authoritative interpretation of the statute to be so enforced as well.” 24  In interpreting the scope of Title II (and its implied private right of action), our starting point is the statute's plain meaning.25  In ascertaining the plain meaning of Title II, we “must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” 26  If we determine that the plain meaning of Title II is ambiguous, we do not simply impose our own construction on the statute.   When confronted with a statutory ambiguity, we refer to the responsible agency's reasonable interpretation of that statute.   Here, because Congress directed the Department of Justice (DOJ) to elucidate Title II with implementing regulations,27 DOJ's views at least would “warrant respect” 28 and might be entitled to even more deference.29   2 We begin by determining whether the plain meaning of Title II extends to newly built and altered sidewalks.   As noted, Title II provides that disabled individuals shall not be denied the “benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 30  The Supreme Court addressed this same statutory provision in Pennsylvania Department of Corrections v. Yeskey, and held that it “unambiguously” permitted a prisoner to sue a state prison.31  The Supreme Court considered the text of Title II as it is “ordinarily understood,” and reasoned that “prisons provide inmates with recreational ‘activities,’ medical ‘services,’ and educational and vocations ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners.” 32  The Supreme Court noted that “in the context of an unambiguous statutory text,” it is “irrelevant” whether Congress specifically envisioned that the ADA would benefit state prisoners.33  That a statute may be “applied in situations not expressly anticipated by Congress does not demonstrate ambiguity.   It demonstrates breadth.” 34  The ADA does not define the “services, programs, or activities of a public entity.”   The Rehabilitation Act, however, defines a “program or activity” as “all of the operations of ․ a local government.” 35  As already stated, we interpret Title II and the Rehabilitation Act in pari materia.   Accordingly, like the Supreme Court in Yeskey, we must determine whether newly built and altered city sidewalks are benefits of “all of the operations” and “services” of a public entity within the ordinary meaning of those terms.   Before resolving this issue, however, we briefly acknowledge two different ways of framing it.   Some parties urge us to consider whether building and altering sidewalks are services, programs, or activities of a public entity, and thus whether the resulting sidewalks are “benefits” of those services, programs, or activities.   Other parties urge us to consider whether a city sidewalk itself is a service, program, or activity of a public entity.   As discussed below, we believe this case does not turn on how we frame the issue.36  Either way, when a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city unnecessarily denies disabled individuals the benefits of its services in violation of Title II. a Building and altering city sidewalks unambiguously are “services” of a public entity under any reasonable understanding of that term.   The Supreme Court has broadly understood a “service” to mean “the performance of work commanded or paid for by another,” or “an act done for the benefit or at the command of another.” 37  Webster's Dictionary additionally defines a “service” as “the provision, organization, or apparatus for ․ meeting a general demand.” 38  For its part, Black's Law Dictionary defines a “public service” as work “provided or facilitated by the government for the general public's convenience and benefit.” 39  Under each of these common understandings, building and altering public sidewalks unambiguously are services of a public entity.   The construction or alteration of a city sidewalk is work commanded by another (i.e., voters and public officials), paid for by another (i.e., taxpayers), and done for the benefit of another (e.g., pedestrians and drivers).   When a city builds or alters a sidewalk, it promotes the general public's convenience by overcoming a collective action problem and allowing citizens to focus on other ventures.   Morever, when a city builds or alters a sidewalk, it helps meet a general demand for the safe movement of people and goods.40  In short, in common understanding, a city provides a service to its citizens when it builds or alters a public sidewalk.   A “service” also might be defined as “[t]he duties, work, or business performed or discharged by a public official.” 41  Under this definition too, newly built and altered public sidewalks are services of a public entity.   Cities, through their officials, study, debate, plan, and ultimately authorize sidewalk construction.42  If a city official authorizes a public sidewalk to be built in a way that is not readily accessible to disabled individuals without adequate justification, the official denies disabled individuals the benefits of that sidewalk no less than if the official poured the concrete himself.   Furthermore, building and altering public sidewalks easily are among “all of the operations” (and thus also the “programs or activities”) of a public entity.   Webster's Dictionary broadly defines “operations” as “the whole process of planning for and operating a business or other organized unit,” and defines “operation” as “a doing or performing esp[ecially] of action.” 43  In common understanding, the operations of a public entity would include the “whole process” of “planning” and “doing” that goes into building and altering public sidewalks.44  In sum, in common understanding, building and altering public sidewalks are services, programs, or activities of a public entity.   When a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, disabled individuals are denied the benefits of that city's services, programs, or activities.   Newly built and altered sidewalks thus fit squarely within the plain, unambiguous text of Title II. Newly built and altered sidewalks thus fit squarely within the plain, unambiguous text of Title II. b Even if we focus on a public sidewalk itself, we still find that a sidewalk unambiguously is a service, program, or activity of a public entity.   A city sidewalk itself facilitates the public's “convenience and benefit” by affording a means of safe transportation.45  A city sidewalk itself is the “apparatus” that meets the public's general demand for safe transportation.46  As the Supreme Court has observed, sidewalks are “general government services” 47 “provided in common to all citizens” 48 to protect pedestrians from the “very real hazards of traffic.” 49  The Supreme Court also has recognized that public sidewalks are “traditional public fora” that “time out of mind” have facilitated the general demand for public assembly and discourse.50  When a newly built or altered city sidewalk is unnecessarily made inaccessible to individuals with disabilities, those individuals are denied the benefits of safe transportation and a venerable public forum.   3 Were there any doubt that the plain meaning of § 12132 extends to newly built and altered sidewalks, other provisions in Title II confirm that it does.   Congress directed DOJ to “promulgate regulations” that “implement” § 12132.51  Congress also required those implementing regulations to be consistent with Rehabilitation Act coordination regulations codified at 28 C.F.R. pt. 41.52  Notably, the Rehabilitation Act regulations that Congress sought to replicate under Title II require new and altered facilities, including sidewalks, to be accessible in most circumstances.53  That Congress directed DOJ to “implement” § 12132 by promulgating regulations governing newly built and altered sidewalks strongly suggests that Congress thought § 12132 would extend to such sidewalks.   In fact, the ADA actually prohibits courts from construing Title II to apply a lesser standard than the Rehabilitation Act and its implementing regulations.54  As the Supreme Court has recognized, Congress's “directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.” 55 Because the Rehabilitation Act regulations require new and altered facilities, including sidewalks, to be accessible in most circumstances, our construction of § 12132 requires no less.   Additionally, in clarifying the requirements of Title II in the unique context of “designated public transportation services” (e.g., regular rail and bus services), Congress expressly provided that § 12132 requires new and altered “facilities” to be accessible.56  Although Congress did not define “facilities,” the relevant Department of Transportation (DOT) regulations define the term to include, inter alia, “roads, walks, passageways, [and] parking lots.” 57  Congress's express statement that § 12132 extends to newly built and altered facilities is a good indication that Congress thought § 12132 would extend to newly built and altered sidewalks.   The City draws our attention to a purported distinction between “transportation barriers” and “services” in Title II's definition of a “qualified individual with a disability.”   A qualified individual with a disability is defined as:  an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 58  According to the City, because Congress included transportation barriers and services in the same sentence, Congress must have contemplated that newly built and altered sidewalks (and other facilities) are not services, programs, or activities within the meaning of § 12132.   As an initial matter, if our focus is on building and altering sidewalks, as opposed to sidewalks themselves, the City's distinction breaks down immediately.   Even if the definition of a qualified individual with a disability suggests that sidewalks and services are mutually exclusive, the definition certainly does not suggest (contrary to any ordinary understanding) that building and altering sidewalks are not services.   In any event, Title II's definition of a qualified individual with a disability does not suggest that sidewalks and services are mutually exclusive.   The phrase “with or without ․ the removal of architectural, communication, or transportation barriers” simply clarifies that the necessity of a reasonable accommodation does not disqualify a disabled individual from invoking Title II in the first place.59  Drawing from the complaint in this case, a transportation barrier might be a ditch.   The definition thus tells us that a newly built or altered sidewalk implicates Title II even if making that sidewalk readily accessible would require reasonably removing the ditch.   In other words, a disabled individual's right not to be denied access to a newly built or altered sidewalk does not turn on his ability to access that sidewalk in the first place.   This in no way suggests that newly built and altered sidewalks are exempt from § 12132's plain, unambiguous meaning.   Taking a step back, the phrase “with or without ․ the removal of architectural, communication, or transportation barriers” in the definition of a qualified individual with a disability is used to expand Title II's nondiscrimination mandate, not narrow it.   The definition ensures that existing barriers are not used to justify future discrimination.   But recognizing that existing transportation barriers sometimes impede access to public services does not suggest that Congress thought cities could go on building new, inaccessible sidewalks.   We do not think Congress intended to limit the plain meaning of § 12132 by referring to a recognized form of disability discrimination 60 in an effort to expand § 12132's coverage.   4 Though unnecessary to resolve this case, legislative purpose and history confirm that Congress intended Title II to extend to newly built and altered sidewalks.   Congress anticipated that Title II would require local governments “to provide curb cuts on public streets” because the “employment, transportation, and public accommodation sections of [the ADA] would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between streets.” 61  Implicit in this declaration is a premise that sidewalks are subject to Title II in the first place.   Congress's specific application of Title II is consistent with its statutory findings.   In enacting Title II, Congress found that individuals with disabilities suffer from “various forms of discrimination,” including “isolat[ion] and segregat [ion],” 62 and that inaccessible transportation is a “critical area[ ]” of discrimination.63  Moreover, Congress understood that accessible transportation is the “linchpin” that “promotes the self-reliance and self-sufficiency of people with disabilities.” 64  Continuing to build inaccessible sidewalks without adequate justification would unnecessarily entrench the types of discrimination Title II was designed to prohibit.   Title II does not only benefit individuals with disabilities.   Congress recognized that isolating disabled individuals from the social and economic mainstream imposes tremendous costs on society.   Congress specifically found that disability discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” 65  Congress also anticipated that “the mainstreaming of persons with disabilities will result in more persons with disabilities working, in increasing earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenues.” 66  The Rehabilitation Act was passed with similar findings and purpose.67  Continuing to build inaccessible sidewalks without adequate justification would unnecessarily aggravate the social costs Congress sought to abate.   To conclude, it would have come as no surprise to the Congress that enacted the ADA that Title II and its implementing regulations were being used to regulate newly built and altered city sidewalks.   Indeed, Title II unambiguously requires this result.   Having considered both the statutory language of § 12132 as well as the language and design of Title II as a whole, we hold that Title II unambiguously extends to newly built and altered sidewalks.   Because we interpret Title II and § 504 of the Rehabilitation Act in pari materia, we hold that § 504 extends to such sidewalks as well.   B 1 As discussed above, when a city decides to build or alter a sidewalk but makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city discriminates within the meaning of Title II. Such a sidewalk benefits persons without physical disabilities, yet that benefit is unnecessarily denied to similarly situated persons with physical disabilities.   Continuing to build inaccessible sidewalks without adequate justification needlessly perpetuates the “isolation and segregation” of disabled individuals, and is the type of discrimination the ADA prohibits.68  That Title II extends to newly built and altered sidewalks does not mean that it, or its private right of action, requires cities to employ “any and all means” to make such sidewalks accessible.69  A city's obligation to make newly built and altered sidewalks readily accessible is not “boundless.” 70  As the Supreme Court stated in Tennessee v. Lane, Title II imposes an “obligation to accommodate,” or a “reasonable modification requirement.” 71  On their face, DOJ's regulations governing new and altered facilities are congruous with Title II's reasonable modification requirement.   Under DOJ's regulations, each new sidewalk must be made “readily accessible” to individuals with disabilities.72  This is because, as Congress recognized, the marginal costs of making a new sidewalk readily accessible “are often nonexistent or negligible.” 73  With respect to altered sidewalks, the “altered portion” must be made “readily accessible” “to the maximum extent feasible” if it “could affect the usability of the facility.” 74  Again, this is because once a public entity decides to alter a sidewalk, it generally is not a significant burden to make the altered portion of that sidewalk accessible.75  In any event, a public entity is not “required to undertake measures that would impose an undue financial or administrative burden, threaten historic preservation interests, or effect a fundamental alteration in the nature of the service.” 76  Thus, DOJ's regulations do not require cities to achieve accessibility at any cost.   Instead, the regulations require only that when a city chooses to construct a new sidewalk or alter an existing one, the city must take reasonable measures to ensure that those sidewalks are readily accessible to individuals with disabilities.   This is the same thing Title II requires.   Our conclusion is strongly suggested by the Supreme Court's decision in s decision in Lane. In Lane, the Supreme Court found that Title II requires public entities “to take reasonable measures to remove architectural and other barriers to accessibility.” 77  In elucidating the scope of this “reasonable modification requirement,” Lane reviewed DOJ's regulations with approval:  As Title II's implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways.   In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards.   28 C.F.R. § 35.151 (2003).   But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures(4DL⌑September 15, 2011

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