     Case: 08-10630     Document: 00511211716           Page: 1     Date Filed: 08/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            August 23, 2010

                                        No. 08-10630                         Lyle W. Cayce
                                                                                  Clerk

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




                    Appeal from the United States District Court
                         for the Northern District of Texas


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        The petition for rehearing is GRANTED. We withdraw our prior opinion,
Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009), and substitute the
following, which reflects substantial changes from the earlier opinion.1

       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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                              OPINION ON REHEARING
       The plaintiffs are persons with disabilities who depend on motorized
wheelchairs for mobility. They allege that the City of Arlington, by failing to
make the City’s curbs, sidewalks, and certain parking lots ADA-compliant, has
violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
The district court dismissed their complaint on the basis that their claims were
barred by the applicable two-year statute of limitations. This appeal raises more
than one issue of first impression—at least for this court. Initially, we must
decide whether Title II of the ADA authorizes the plaintiffs’ claims. To the
extent we find Title II authorizes the plaintiffs’ claims, we must also consider
whether those claims are subject to a statute of limitations and, if so, when the
claims accrued.
       We hold that Title II mandates the modification of physical infrastructures
that “effectively deny” access to a public entity’s services, programs, or activities.
Within this framework, sidewalks, curbs, and parking lots are “facilities,” not
“services, programs, or activities.” Consequently, plaintiffs only have a private
right of action to enforce compliance with the implementing regulations to the
extent that the failure to make a sidewalk, curb, or parking lot compliant denies
plaintiffs access to actual services, programs, or activities. Where the plaintiffs
establish 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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subject to a two-year statute of limitations, and that the claims accrued when
the plaintiffs were excluded from the desired program, service, or activity. We
further conclude, however, that it was the City’s burden to prove accrual and
expiration of any limitations period.                Because the district court erred in
requiring the plaintiffs to prove that their claims had not expired, we remand for
further proceedings.
                                                I.
       This appeal comes to us from the grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).               We therefore accept the factual
allegations of the plaintiffs’ complaint as true. See, e.g., Lane v. Halliburton, 529
F.3d 548, 557 (5th Cir. 2008). The plaintiffs filed their complaint in the district
court on July 22, 2005, and amended it three times. Accordingly, for facts we
refer to the plaintiffs’ final amended complaint.
       The plaintiffs are individuals who reside in Arlington who have mobility
impairments that require that they use motorized wheelchairs. They point to
more than one hundred curbs and poorly maintained sidewalks in Arlington that
they allege make their travel impossible or unsafe. They also point to at least
three public facilities lacking adequate handicap parking.                    Count 1 of the
plaintiffs’ complaint alleges violations of Title II of the ADA. See Title II of the
ADA, 42 U.S.C. §§ 12131 et seq. (prohibiting public entities from discriminating
on the basis of disability).2 Count 2 of the plaintiffs’ complaint alleges violations


       2
          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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of Section 504 of the Rehabilitation Act, which prohibits recipients of federal
funding from discriminating against persons on the basis of disability. See
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The plaintiffs do not seek
monetary damages; they only ask for an injunction requiring the City to bring
its curbs, sidewalks, and parking lots into ADA compliance.
       The City of Arlington moved to dismiss the complaint, and the district
court granted the City’s motion on the ground that the plaintiffs’ claims were
barred by the applicable two-year statute of limitations. The district court held
that the plaintiffs’ claims accrued, and the two-year limitations period began to
run, on the date the City completed the construction or alteration of any
noncompliant curb, sidewalk, or parking lot. Because the plaintiffs’ complaint
did not point to dates of noncompliant construction or alteration within the two
years preceding its filing date, July 22, 2005, the district court dismissed the
plaintiffs’ claims.
       On appeal, the plaintiffs argue that their claims accrued on the date
individual plaintiffs actually encountered a noncompliant barrier—not on the
date the City completed a noncompliant construction or alteration.                    In the
alternative, the plaintiffs argue that statutes of limitation do not apply to claims
for injunctive relief; that the noncompliant curbs, sidewalks, and parking lots
are continuing violations of the ADA that relieve them of the limitations bar; and
that dismissal was improper because the City, and not the plaintiffs, had the
burden to establish when the plaintiffs’ claims accrued and the limitations
period expired.
       We 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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       We review a Rule 12(b)(6) dismissal de novo. See, e.g., Lindquist v. City
of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2007). “The complaint must be
liberally construed, with all reasonable inferences drawn in the light most
favorable to the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005)
(citing 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.
Dondero, 529 F.3d 532, 535 (5th Cir. 2008).
                                                A.
       The immediate question is whether the plaintiffs have stated a cognizable
claim under Title II of the ADA; that is, whether the plaintiffs have a private
right of action, in connection with their statutory right of access, to force a city
to maintain its curbs, sidewalks, and parking lots in compliance with the
implementing regulations. If they have no claim, then we need not reach the
statute of limitations issues. For reasons we explain, we decide that, to the
extent noncompliant sidewalks, curbs, or parking lots effectively deny plaintiffs
access to a city “service, program, or activity,” plaintiffs have a private right of
action to enforce the regulations; to the extent the noncompliant sidewalks,
curbs, or parking lots do not effectively deny plaintiffs access to a “service,
program, or activity,” plaintiffs do not have a private right of action to enforce
the regulations.3
       The ADA was passed “[t]o provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1). Title II applies to public entities. It
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

       3
         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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discrimination by any such entity.” 42 U.S.C. § 12132.4 We have held that to
make a prima facie case under Title II a plaintiff must show: (1) that he has a
qualifying disability; (2) that he is being denied the benefits of services,
programs, or activities for which the public entity is responsible, or is otherwise
discriminated against by the public entity; and (3) that such discrimination is
by reason of his disability. Melton v. Dallas Area Rapid Transit, 391 F.3d 669,
671-72 (5th Cir. 2004). There is no dispute that the City is a public entity, or
that the plaintiffs here have qualifying disabilities.5
       Plaintiffs have assembled a range of arguments as to how Arlington’s
newly constructed, newly maintained, and pre-ADA 6 sidewalks, curbs, and
parking lots are in violation of Title II. Some of the violations pointed to by the
plaintiffs are alleged to deny access to public services; other violations are not
similarly tied to the deprivation of access to public services. In some instances,
the alleged violation excludes plaintiffs from public benefits; in other instances,
plaintiffs can access the services but only with difficulty.
       Given the breadth of the plaintiffs’ attack on Arlington’s sidewalk, curb,
and parking lot system, we must identify with some precision the degree to

       4
         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.
       5
        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).
       6
         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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which they are entitled to force compliance with the implementing regulations.
In so doing, we move in three steps. First, we briefly review our jurisprudence
concerning private causes of action to enforce implementing regulations. Second,
we analyze the statutory text. Third, because we conclude that the statutory
text is in part ambiguous, we turn to the implementing regulations for guidance.
                                        1.
      “[P]rivate rights of action to enforce federal law” are creatures of
congressional intent. Sandoval, 523 U.S. at 286. The Supreme Court has
recognized that Title II’s anti-discrimination provision, 42 U.S.C. § 12132, is
enforceable through a private right of action. Barnes v. Gorman, 536 U.S. 181,
184-85 (2002).      When deciding whether a general private right of action
recognized under the statutory language carries over to the specifics of the
implementing regulations, we ask whether the regulation “effectuates a
mandate” of the statute. Ability Center of Greater Toledo v. City of Sandusky,
385 F.3d 901, 906-07 (6th Cir. 2004); see Alexander v. Sandoval, 532 U.S. 275,
285 (2001) (explaining that only if a regulation “simply appl[ies]” the statutory
obligations does a right of action to enforce the statute carry over to
implementing 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.
      Before turning to the statute, we briefly explain the manner in which we
interpret a statute administered by an executive agency.            If, using the
traditional tools of statutory construction, we conclude the statute is clear as to
the precise question at issue, “we must give effect to the unambiguously
expressed intent of Congress.” Chevron, U.S.A. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984). If, however, the statute is ambiguous,
we then defer to the agency’s interpretation, if it is reasonable. Id. Where the
agency has promulgated regulations addressing the question, we look first to

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those regulations.       If the regulations are “ambigu[ous] with respect to the
specific question considered,” Moore v. Hannon Food Serv., 317 F.3d 489, 495
(5th Cir.2003); Christensen v. Harris County, 529 U.S. 576, 588 (2000) (finding
Auer deference appropriate “only when the language of the regulation is
ambiguous”), we defer to the agency’s interpretation of its own regulation “unless
plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S.
452, 461 (1997); Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006). Were we
automatically to defer to an agency interpretation of an unambiguous regulation,
we would in effect “permit the agency, under the guise of interpreting a
regulation, 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.
       Title II provides that no individual with a qualifying disability shall, “by
reason of such disability, be excluded from participation in or denied the benefits
of” 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
not just the discriminatory provision of benefits,7 but also the failure to take
reasonable measures to make these benefits accessible to persons with
disabilities.    541 U.S. 509, 531-32 (2004) (citing 42 U.S.C. § 12131(2) and
explaining that because “[a] failure to accommodate . . . will often have the same
practical effect as outright exclusion, Congress required the States to take
reasonable      measures       to   remove      architectural      and     other    barriers     to
accessibility”). Accordingly, we have stated, in the context of access to public
education, that Title II of the ADA “mandat[es] physical accessibility and the




       7
         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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removal and amelioration of architectural barriers.” Pace v. Bogalusa City
School Bd., 403 F.3d 272, 291 (5th Cir. 2005).
       Later cases have made clear that, at least with respect to the
Rehabilitation Act, this obligation extends beyond cases of actual exclusion to
cases of constructive exclusion—i.e., a plaintiff need not show it is impossible to
access the benefits, but only that, considering all of the circumstances, there is
an unreasonable level of difficulty in accessing the benefits. See Alexander v.
Choate, 469 U.S. 287, 301 (1985) (stating in the context of the Rehabilitation Act
that a benefit cannot be offered in a way that “effectively denies” otherwise
qualified handicapped individuals “meaningful access” to which they are
entitled); 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
judgment on this issue in Melton, 391 F.3d at 672 n.2, but we now conclude that
under the ADA, which was intended to be coextensive with the Rehabilitation
Act, a plaintiff must show that a benefit is being administered in a way that
“effectively denies” individuals with qualifying disabilities “meaningful access”
to the benefits for which they are qualified.8
       We thus conclude that the statute unambiguously mandates the
modification of certain new, altered, and pre-ADA physical infrastructures to the
extent they “effectively deny” individuals with disabilities from “meaningful
access” 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



       8
         “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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either outright excludes them from or effectively denies them meaningful access
to a service, program, or activity, they have a private cause of action to enforce
compliance with the regulations.
       Many of the plaintiffs’ allegations meet this standard. The plaintiffs allege
that certain of the City’s physical infrastructure—sidewalks, curbs, and parking
lots—hinder them from accessing the City’s services, programs, or activities—for
example, parks, public schools, and polling stations.                The district court on
remand will be able to determine precisely which of the plaintiffs’ alleged
violations are tied to the denial of a service, program, or activity.9
       In some instances, however, the plaintiffs seek the correction of a
noncompliant sidewalk, curb, or parking lot without correlating the violation
with a deprivation of a service, program, or activity.                 In these cases, the
plaintiffs argue that a private right of action nevertheless exists because
sidewalks, curbs, and parking lots are themselves services, programs, or
activities, access to which they are deprived via noncompliant curb cuts or poorly
maintained walks. This claim presents an issue of first impression in this circuit
and we turn to it now.
                                              ii.
       The plaintiffs urge that Congress intended Title II to be broad, and they
ask us to recognize sidewalks, curbs, and parking lots, not just in their capacity
to give access to other services, programs, or activities, but as services
themselves.10 The plaintiffs argue that sidewalks and parking lots are simply


       9
         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.
       10
          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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one of the panoply of services provided by the City to its citizens. Thus, they
seem to argue, they have a private cause of action under Title II in any instance,
at any place in the City, to require the City to modify noncompliant sidewalks
or parking lots that are unusable to individuals with disabilities; that is to say,
access to other services, programs, or activities is an irrelevant consideration.
The City disagrees, arguing that sidewalks and parking lots constitute
infrastructure, which may provide access to, but are not themselves, “services,
programs, or activities.” We agree with the City, and for the reasons that follow,
we conclude that sidewalks, curbs, and parking lots are not “services, programs,
or activities” within the meaning of Title II.
       Title II provides that no individual with a qualifying disability shall “be
denied 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
statute. 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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activities” 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
with a disability” indicates as much. A “qualified individual with a disability”
is one who “with or without . . . the removal of . . . transportation barriers . . .
meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. §
12131(2) (emphasis added).               Thus, we think it is clear that Congress
contemplated that some physical infrastructures constitute a different category
from the “services” to which they provide access.
       Absent a statutory definition or definitive statutory clue, a word “must be
given its ordinary, ‘everyday meaning.’” See United States v. Hildenbrand, 527
F.3d 466, 476 (5th Cir. 2008) (quoting Watson v. United States, 552 U.S. 74, 79
(2007)). The definitions for “service”11 include “[t]he duties, work, or business
performed or discharged by a public official,” and “the provision, organization,
or apparatus for . . . meeting a general demand.” M ERRIAM-W EBSTER’S T HIRD
N EW I NTERNATIONAL D ICTIONARY 2075 (1993). When, for instance, a public
entity provides or maintains a sidewalk, or its accompanying curbs, or public
parking lots, it arguably creates an “apparatus for . . . meeting a general
demand,” but it does not perform “work . . . by a public official.” Furthermore,
the concept of infrastructure is usually inanimate; this suggests that while
infrastructure may aid in the provision of other services, it is not considered a
service itself.12
       In short, the statute’s “qualified individual with a disability” definition
suggests a distinction between certain physical infrastructure on the one hand


       11
        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.”
       12
            For example, a bus is a “facility” that provides the service of transportation.

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and services, programs, and activities on the other. However, as other circuits
have indicated, “services” might be broadly understood to include at least some
infrastructures, including sidewalks.           Thus, whether sidewalks, curbs, and
parking lots are properly considered infrastructure or services is unclear; the
statutory language does not rule out the possibility that, for example, some
structures used for transportation might be considered to constitute a service.
Thus, we cannot conclude that the statutory language unambiguously excludes
cities’ and states’ physical infrastructure as distinct from the panoply of less
tangible benefits cities and states offer to their residents, even though it is often
through and by these infrastructures that the services are delivered.
       Because of this ambiguity, we defer to the agency interpretation if it
represents a reasonable interpretation of the statutory meaning. We begin with
the regulations and turn to other sources only if the regulations are ambiguous.
Here, the regulations promulgated by the Department of Justice, which appear
at 28 C.F.R. Part 35, are organized into a number of parts. Subpart B contains
general requirements. Included therein is a regulation setting forth the general
prohibition against discrimination; it essentially repeats the language of Title
II’s anti-discrimination provision in full, with one minor change.13 28 C.F.R. §
35.130. Subpart D deals with the modification of “facilities” to achieve the
statutory requirement of accessibility to programs, services, and activities. Id.
at §§ 35.149-159 (“Subpart D. Program Accessibility”). The first provision in
Subpart D sets out a general prohibition forbidding the exclusion of individuals
with disabilities from “services, programs, or activities” because “a public entity’s
facilities are inaccessible to or unusable by individuals with disabilities.” Id. at
§ 35.149. By definition, facilities are the public entity’s infrastructure—“all or
any portion of buildings, structures, sites, complexes, equipment, rolling stock

       13
          The regulation replaces the language “by reason of such disability” with “on the basis
of disability.”

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or other conveyances, roads, walks, parking lots, or other real or personal
property . . . .” Id. at § 35.104.
       Subsequent provisions of the regulation explain what this requirement of
program accessibility means with respect to a public entity’s facilities.                As to
existing facilities, a public entity need not necessarily “make each of its existing
facilities accessible.” Id. at § 35.150. Instead, facilities need to be modified only
to the extent that the service, program, or activity at issue is not readily
accessible 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
must be readily accessible and usable by individuals with disabilities. Id. at §
35.151. The regulations go on to mandate the addition of curb ramps at the
intersection of newly constructed or altered pedestrian walkways and newly
constructed or altered streets, roads, and highways. Id. at § 35.151(e).
       A few principles can be drawn from the language and regulatory structure
which, when considered together, make clear that sidewalks, curbs, and parking
lots are not “services, programs, or activities.” First, under the regulations,
sidewalks, curbs, and parking lots are specifically defined as facilities and are
clustered with items that clearly do not qualify as “services, programs, or
activities,” such as equipment and sites.14 We can safely assume that this was
not a mistake. This alone strongly suggests we read sidewalks, curbs, and
parking lots as falling outside the statutory “services, programs, or activities.”
       Second, unless we consider the regulatory language to be contradictory,
facilities cannot merely be a subset of “services, programs, and activities.” 28
C.F.R. § 35.149 prohibits “inaccessible and unusable” “facilities” that exclude



       14
         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.”

                                              14
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                                        No. 08-10630

individuals with disabilities from “services, programs, or activities.” If some
facilities were also “services, programs, or activities,” then the regulations, in at
least some cases, would actually forbid “inaccessible and unusable” “services,
programs, or activities” that exclude individuals with disabilities from “services,
programs, or activities.” We cannot believe that this interpretation is correct.
The only sensible reading is that the categories are mutually exclusive and if
sidewalks, curbs, and parking lots were intended to be treated as “services,
programs, or activities,” they would have been left out of the facilities definition
altogether.
       Third, the implementation of a unique framework of regulatory
requirements for facilities, §§ 35.150-151, belies any attempt to equate facilities
with “services, programs, or activities.” If facilities were themselves “services,
programs, or activities,” they would be subject to the regulatory language in §
35.14915 mandating some degree of immediate accessibility. This requirement
would render superfluous the facilities regulations in § 35.150-151, which
envision a phasing-in of compliant facilities with a focus on achieving general
accessibility to other programs, services, or activities, rather than immediate
compliance with a focus on making facilities themselves accessible.
       Given the explicit identification of sidewalks, curbs, and parking lots as
facilities; the relationship between facilities and services, programs, and
activities in § 35.149; and the creation of regulations unique to facilities in §§
35.150-151, the regulations clearly indicate to us that sidewalks, curbs, and
parking lots are covered by the statute, not as “services,” but in their capacity
as gateways to “services, programs, or activities,” i.e., as facilities.



       15
           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.

                                               15
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                                        No. 08-10630

       Accordingly, we hold that in the light of the implementing regulations,
sidewalks, curbs, and parking lots are not “services, programs, or activities.”
Because the statute mandates modifications only where an individual with a
disability cannot access a service, program, or activity, the regulations requiring
modifications to sidewalks, curbs, and parking lots in instances where these
facilities do not prevent access to some service, program, or activity do not
effectuate a statutory mandate. Plaintiffs thus do not have a private cause of
action to enforce the regulatory requirements as they relate to these non-access-
denying sidewalks, curbs, and parking lots.
                                             III.16
       Now we are prepared to consider the issue addressed by the district
court—whether the plaintiffs’ claims are time-barred. First, we address the
plaintiffs’ argument that statutes of limitation do not apply to claims seeking
only injunctive relief. Second, we identify the proper statute of limitations.
Third, we consider when the plaintiffs’ claims accrued.
       We reject the plaintiffs’ assertion that the statute of limitations does not
apply to their claims because they seek only injunctive relief. The plaintiffs cite
Voices for Independence v. Pennsylvania Department of Transportation, 2007 WL
2905887 (W.D. Pa.), a district court opinion that held a statute of limitations did
not apply in an ADA case seeking only equitable relief. Id. at *16-17. That
opinion, in addition to being nonbinding, is also unpersuasive in the light of the
fact that courts regularly apply statutes of limitation to claims under Title III




       16
          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.

                                               16
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                                        No. 08-10630

of the ADA, for which only injunctive relief is available.17               See, e.g., Gaona v.
Town & Country Credit, 324 F.3d 1050, 1054-56 (8th Cir. 2003) (applying
Minnesota’s six-year statute of limitations to Title III claim for injunctive relief);
Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 n.2 (9th Cir. 2002)
(holding ongoing violation brought Title III claim for injunctive relief within
California’s one-year limitations period); Sexton v. Otis Coll. of Art & Design Bd.
of Directors, 129 F.3d 127, 127 (9th Cir. 1997) (applying California’s one-year
statute of limitations to Title III claim for injunctive relief); Soignier v. Am. Bd.
of Plastic Surgery, 92 F.3d 547 (7th Cir. 1996), cert. denied, 519 U.S. 1093 (1997)
(applying Illinois’s two-year statute of limitations to Title III claim for injunctive
relief). This court has recently held that statutes of limitations apply to § 1983
actions that seek only injunctive relief. See Walker v. Epps, 550 F.3d 407, 414
(5th Cir. 2008). We decline to treat the plaintiffs’ Title II claims differently.
       Now, with respect to the application of the correct limitations period, we
begin by noting that neither Title II of the ADA nor the Rehabilitation Act
provides a limitations period, and the general federal statute of limitations does
not apply to either statute.18 We have previously held, however, that the Texas
two-year statute of limitations for personal injury claims applies in Title II cases
filed in Texas federal courts. Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84



       17
          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).
       18
            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.

                                               17
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                                   No. 08-10630

(5th Cir. 1998); T EX. C IV. P RAC. & R EM. C ODE A NN. § 16.003 (Vernon Supp. 2007).
The district court thus applied the correct two-year statute of limitations.
      The Supreme Court has been clear that a claim accrues when the plaintiff
knew 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
discriminatory act, not the point at which the consequences of the act become
painful” (citing Del. St. Coll. v. Ricks, 449 U.S. 250, 258 (1980)). Here, the
discriminatory act is the denial of access to the service, program, or activity. A
plaintiff thus 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. This is a fact question that must
be determined by the fact-finder.
      Because the plaintiffs failed to plead that their injuries occurred within
two years of the filing of their complaint, the district court dismissed their
action.   However, as always, the defendant has the burden of establishing
affirmative defenses, including a statute of limitations, and so it is the City’s
obligation to demonstrate expiration of the limitations period. F ED. R. C IV. P. 8
(“In responding to a pleading, a party must affirmatively state any avoidance or
affirmative defense, including . . . statute of limitations[.]”); see also In re
Hinsley, 201 F.3d 638, 644-45 (5th Cir. 2000) (Under Texas law, “[a] party
asserting limitations must establish the applicability of the limitations statute,
but must, as well, prove when the opponent's cause of action accrued[.]”(quoting
Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App. 1984, writ refused
n.r.e.)). In this respect the district court erred.
      In summary: Plaintiffs’ claims are subject to a two-year statute of
limitations; plaintiffs’ claims accrue when they knew or should have known that
they are denied access to a service, program, or activity; and the burden is on the



                                         18
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                                  No. 08-10630

defendant to prove its affirmative defense that the statute of limitations has
expired.
                                       IV.
      We recap the holdings of this opinion: Title II mandates that cities take
reasonable steps to modify infrastructure that “effectively denies” individuals
with disabilities access to programs, services, and activities. We hold that curbs,
sidewalks, and parking lots do not constitute a service, program, or activity
within the meaning of Title II of the ADA.          Accordingly, plaintiffs have
established 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,
service, or activity that does fall within the meaning of Title II. As to their
claims that meet this standard, the district court correctly held the plaintiffs’
claims were subject to a two-year statute of limitations. These claims accrued
on the date the plaintiffs knew or should have known they were denied access
to a program, service, or activity on account of the noncompliant facility.
However, the district court improperly burdened the plaintiffs with proving
accrual within the two years preceding the filing of their complaint.          We
therefore VACATE the district court’s judgment of dismissal and REMAND for
such further proceedings not inconsistent with this opinion.
                                                   VACATED and REMANDED.




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                                           No. 08-10630

PRADO, Circuit Judge, concurring in part and dissenting in part:
       Although my colleagues granted rehearing and now hold that the statute
of limitations applicable to the plaintiffs’ claims here begins to run when the
individual plaintiff was denied a service, program, or activity,1 the majority has
performed an about-face, and now also holds that sidewalks, curbs, and parking
lots2 are not services under the ADA. While I agree that we must remand this
case, I cannot agree with the majority’s novel approach to coverage under the
ADA, and once again I must dissent.3 I believe that characterizing sidewalks as
“facilities,” and thereby limiting private causes of action under the ADA, is not
supported by the statute, regulations, or caselaw. I fear that the majority
departs dramatically from congressional intent and creates a distinction that is
unworkable and ultimately meaningless.
                                                  I.
       The majority asks whether sidewalks “are services themselves.” Maj. Op.
at 10. This is not the correct inquiry. The question is not whether the physical
structures that compose the sidewalks are a service; rather, it is whether a city
provides a service through the construction, maintenance, or alteration of those
sidewalks. The answer, of course, is yes. See Barden v. City of Sacramento, 292
F.3d 1073, 1074, 1076 (9th Cir. 2002) (“We must decide whether public
sidewalks . . . are a service, program, or activity . . . within the meaning of [the
ADA]. We hold that they are . . . . [because] maintaining public sidewalks is a
normal function of a city . . . .”). A public entity that constructs a sidewalk



       1
           For simplicity, I refer to “services, programs, and activities” simply as “services.”
       2
           Similarly, for simplicity, I refer to “sidewalks, curbs, and parking lots” as “sidewalks.”
       3
          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.

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                                   No. 08-10630

performs a public service. Asking whether sidewalks themselves are a service
engages 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, 44–45 (2d
Cir. 1997) (holding that the zoning decisions of a public entity are covered by the
ADA “because making such decisions is a normal function of a government
entity”). The majority’s approach does not comport with the plain, unambiguous
text of the ADA; thus we need not look to the regulations or congressional intent.
Even if we do, however, the majority’s approach is not supported by the
promulgated regulations and does not satisfy the intent of Congress.
                                         A.
      Title II 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.” 42 U.S.C. § 12132. In our original
opinion, we reasoned:
      Among the definitions for “service” is “a facility supplying some
      public demand.” M ERRIAM-W EBSTER’S C OLLEGIATE D ICTIONARY 1137
      (11th ed. 2003). When, for instance, a public entity provides a
      sidewalk, or its accompanying curbs, or public parking lots, it
      provides “a facility supplying some public demand.” Because
      providing curbs, sidewalks, and parking lots is a service within the
      ordinary, “everyday meaning” of that word, we hold that those
      facilities also constitute a “service” within the meaning of Title II.
Frame v. City of Arlington, 575 F.3d 432, 437 (5th Cir. 2009). I continue to
agree with this reasoning. The majority’s new opinion, however, adopts a new
definition to arrive at a very different result:
       The definitions for “service” include “[t]he duties, work, or business
       performed or discharged by a public official,” and “the provision,

                                         21
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                                           No. 08-10630

           organization, or apparatus for . . . meeting a general demand.”
           M ERRIAM-W EBSTER’S T HIRD N EW I NTERNATIONAL D ICTIONARY 2075
           (1993). When, for instance, a public entity provides or maintains
           a sidewalk, or its accompanying curbs, or public parking lots, it
           arguably creates an “apparatus for . . . meeting a general demand,”
           but it does not perform “work . . . by a public official.”
Maj. Op. at 12. I do not think that two definitions from dueling Merriam-
Webster’s dictionaries justify changing our approach to this case. Indeed, either
definition encompasses a broad reading of services.                       When a public entity
constructs, maintains, or alters a sidewalk, it performs the “work” traditionally
undertaken by a municipality, and thereby provides a public service.
           In a show of impressive solidarity, our sister circuits have consistently
held that coverage under “services, programs, and activities” is unambiguous
and should be broadly construed.4 The majority’s opinion dismisses the work
of our sister circuits in a footnote, disregarding their interpretation of the ADA
and asserting that they considered the issue “without thorough analysis.” Maj.
Op. at 10 n.10. On the contrary, I believe that the Ninth Circuit, in Barden,


       4
          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 all-
encompassing. 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).

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                                     No. 08-10630

thoroughly considered the text of the statute, regulations, and legislative
history of the ADA provisions at issue here.
          The Ninth Circuit answered the same question presented in this case,5
and held that “maintaining public sidewalks is a normal function of a city and
without a doubt something that the [city] does. Maintaining their accessibility
for individuals with disabilities therefore falls within the scope of Title II.” Id.
at 1076 (emphasis added) (citation and internal quotations omitted). Contrary
to the approach taken by the majority opinion, the Ninth Circuit focused its
inquiry “not . . . on whether a particular public function can technically be
characterized as a service, program, or activity, but whether it is ‘a normal
function 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
relied on Barden in the previous opinion, see Frame, 575 F.3d at 436–37, and
I am convinced that this reliance was well-placed.
          The majority states that it “cannot conclude that the statutory language
unambiguously excludes cities’ and states’ physical infrastructure as distinct
from the panoply of less tangible benefits cities and state offer to their
residents.” Maj. Op. at 13. However, I interpret the language of the statute as
providing broad coverage, encompassing both the intangible services offered by
public entities and the act of offering tangible goods.              A statute is not
ambiguous simply because it offers expansive coverage.


                                           B.
          The statute is unambiguous. Thus, we need not turn to the Department
of Justice’s regulations. Assuming that we should, however, a plain-reading of


      5
        “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.

                                           23
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                                  No. 08-10630

the regulations demonstrates that providing sidewalks is a public service. In
the preamble to its regulations, the Department of Justice explains:
     The scope of title II’s coverage of public entities is comparable to the
     coverage of Federal Executive agencies under the 1978 amendment
     to section 504, which extended section 504’s application to all
     programs 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).
      The majority’s opinion looks to Subpart D of the regulations to define
“facilities.” Maj. Op. at 13 (citing 28 C.F.R. § 35.1149–59). The opinion then
reasons that because physical structures such as sidewalks are defined as
facilities and “clustered with items that clearly do not qualify as ‘services,
programs, or activities,’” they cannot be considered services. Maj. Op. at 14.
The majority concludes that because only the regulations which apply to
services are actionable, a private cause of action exists only for the sidewalks
which 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
facility, 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
level pedestrian walkways must contain curb ramps or other sloped areas at
intersections to streets, roads, or highways.” When a public entity is charged
with providing new or altered facilities in compliance with the ADA, the
regulations do not require that those facilities relate to a covered service.




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                                        No. 08-10630

Similarly, there is no limitation that a sidewalk must take the traveler to a
“service.” 6
           Again, I think that the majority opinion’s approach asks the wrong
question. It is not the sidewalks themselves that we should concern ourselves
with; it is the construction, modification, or alteration of sidewalks that is the
“service.”      The failure of the public entity to construct, alter, or maintain
sidewalks in compliance with the ADA is actionable within the scope of the
regulations.
                                               C.
           Although I do not believe it is necessary to look to the legislative history,
Congressional adoption materials support a broad reading of the ADA. In the
accompanying House Report, Congress stated that Title II “simply extends the
anti-discrimination prohibition embodied in section 504 [of the Rehabilitation
Act] to all actions of state and local governments.” H.R. Rep. No. 101-485(II),
at 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
activities of State and local governments subject to the types of prohibitions
against discrimination . . . included in section 504 . . . .”) (emphasis added).
When a public entity acts, its actions necessarily fall within the coverage of the
ADA and section 504 of the Rehabilitation Act.
           “[T]he elimination of architectural barriers was one of the central aims
of the Rehabilitation Act.” Alexander v. Choate, 469 U.S. 287, 297 (1985) (citing



       6
         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.”

                                              25
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                                       No. 08-10630

S. Rep. No. 93-318, p.4 (1973), U.S. Code Cong. & Admin. News 1973, pp. 2076,
2080)).      And, as this Circuit has elaborated, the purpose of the ADA and
section 504 “is the elimination of discrimination against individuals with
disabilities . . . [by] [m]andating physical accessibility and the removal and
amelioration of architectural barriers.” Pace v. Bogalusa City Sch. Bd., 403
F.3d 272, 291 (5th Cir. 2005) (en banc). It would be contrary to the purpose of
the ADA for a public entity to erect non-compliant sidewalks.
           There exists further indication that Congress did not intend for courts to
draw the type of distinction offered in the majority’s opinion.7 Congress was
particularly clear on the subject of curb cuts—a portion of the plaintiffs’ claims
here—stating         that:   “[t]he    employment,        transportation,       and    public
accommodation sections of this Act would be meaningless if people who use
wheelchairs were not afforded the opportunity to travel on and between the
streets.” H. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990), reprinted in
1990 U.S.C.C.A.N. 267, 367.            Therefore, “under this title, local and state
governments are required to provide curb cuts on public streets.” Id.
           Nowhere in the legislative history do the architects of the ADA suggest
that the ADA does not cover a public entity’s actions with regard to its
sidewalks. 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.

                                              26
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                                       No. 08-10630

to encourage (and sometimes mandate) the evenhanded offering of public
services, should caution against the majority’s opinion’s distinctions.
                                            II.
           In addition to the statutory analysis performed in Part I, I am concerned
by the broader implications of the majority’s approach; namely, there is no
precedent to support the majority’s distinction and the new standard is
unworkable.
                                             A.
           The majority’s opinion offers no caselaw to support its new analysis.
Considering the potential implications of the majority’s novel approach, and
given the clear intent of Congress described above, this dearth of precedent is
troubling.8
           Additionally, I am unable to locate a single circuit court case that could
support the majority’s opinion even by analogy or extrapolation. Kinney v.
Yerusalim, from the Third Circuit, provides some analogous support for a
distinction between the treatment of existing facilities and new constructions
and alterations. See 9 F.3d 1067, 1072 (3d Cir. 1993) (finding that street
resurfacing is an “alteration” under 28 C.F.R. § 35.151(b), and thereby requiring
curb cuts under 28 C.F.R. § 35.151(e)). Although the regulations place different
burdens on municipalities with regard to existing facilities and new or altered
facilities, compare 28 U.S.C. § 35.150(a) & (b), with id. § 35.151(b), even Kinney




       8
         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.

                                             27
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                                        No. 08-10630

supports a broad reading of covered services and cannot be extended to assist
the majority’s approach.9
           The majority’s opinion creates a split with the Ninth Circuit and is
unsupported by any of our sister circuits. While the absence of caselaw on point
or analogous treatment is not dispositive, the Barden opinion and the great
weight of caselaw supporting a broad reading of the ADA, supra note 4, forces
me to doubt the validity of the majority’s new analysis.


                                               B.
           The majority’s opinion draws a distinction between tangible facilities and
intangible services.        This distinction will not work when applied to the
numerous mixed tangible/intangible services rendered by public entities. Take,
for example, a public park. The park has intangible aspects: entertainment,
respite, and fresh air. But it also has tangible aspects: the pathways, drinking
fountains, and green spaces. Can we separate the tangible aspects from the
intangible?       Or are the tangible aspects of a park so interwoven with the
intangible that any attempt at separation is futile? When applied to this park
hypothetical, I think that the merits of our original treatment of the scope of

       9
        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

services are readily apparent. When a public entity decides to build a park (or
later alter it), it must do so in a way that provides equal opportunities for access
to disabled people.
      The majority goes to some lengths to claim that “there should be no
proximity limitation of the sidewalk to the benefit.” Maj. Op. at 10 n.9. The
majority’s attempt to water-down its own new standard illustrates the difficulty
of managing and applying this new standard. In essence, a sidewalk falls
outside of the majority’s standard only if it is a sidewalk to nowhere. I question,
however, whether any sidewalk goes nowhere.
      If the noncompliant sidewalk is immediately outside of a disabled person’s
home, that sidewalk will necessarily deny the individual access to any public
services. If a disabled individual wants to take a circuitous path to a library
and encounters a noncompliant sidewalk, may that disabled person properly
bring a claim? Under the “sidewalks to nowhere” standard, must a disabled
person use the most direct path to a public service? If a disabled person may
avoid a sidewalk lacking a curb cut by taking an easy detour, must she do so?
Each of these questions runs counter to the basic ameliorative and equalizing
aspects of the ADA. See Pace, 403 F.3d at 291 (“[T]he Congressional objective
of both the ADA and § 504 is the elimination of discrimination against
individuals with disabilities. . . . Mandating physical accessibility and the
removal and amelioration of architectural barriers is an important purpose of
each statute.”).
      The district court, on remand, will be placed in the unenviable position
of attempting to apply this standard. The district court will be forced to wrestle
with a standard lacking any clear limitations or answers to the questions I have
posited above. The majority reasons away these fundamental issues with its
statement that proximity should not be considered. But if proximity is of no



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                                  No. 08-10630

consequence, then what sidewalk could ever fall outside of the reach of the
majority’s novel standard?
                                       ***
      Arlington built sidewalks. Arlington maintains sidewalks. And, when it
deems it appropriate, Arlington alters the sidewalks. Each of these acts is a
normal function of government. The acts taken by Arlington with regard to its
sidewalks fall within the unambiguous meaning of “services, programs, and
activities.” I respectfully dissent.




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