                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2008

Disabled Action PA v. SEPTA
Precedential or Non-Precedential: Precedential

Docket No. 06-5109




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 06-5109


   DISABLED IN ACTION OF PENNSYLVANIA,

                           Appellant


                           v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
               AUTHORITY




    On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                (D. C. No. 03-cv-01577)
     District Judge: Honorable Gene E. K. Pratter


              Argued January 10, 2008
         Before: FISHER, HARDIMAN and
           STAPLETON, Circuit Judges.
                  (Filed: August 19, 2008 )

Stephen F. Gold (Argued)
125 South 9th Street
Suite 700
Philadelphia, PA 19107-0000

Rocco J. Iacullo
Mark J. Murphy
Disabilities Law Project
1315 Walnut Street
Suite 400
Philadelphia, PA.
       Attorneys for Appellant

Gregory B. Friel (Argued)
Jessica D. Silver
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044-4403
       Attorneys for Amicus Appellant

Saul H. Krenzel (Argued)
Saul H. Krenzel & Associates
42 South 15th Street
The Robinson Building, Suite 800
Philadelphia, PA 19102-0000
      Attorneys for Appellee


                                 2
                  OPINION OF THE COURT




HARDIMAN, Circuit Judge.

        In this statutory interpretation case, we must decide when
the statute of limitations begins to run in a case arising under the
Americans With Disabilities Act (ADA) and the Rehabilitation
Act (RA). Appellant Disabled in Action of Pennsylvania (DIA)
argues that under the plain language of the statute, its claims
accrued “upon the completion” of alterations to two
Philadelphia subway stations.              Appellee Southeastern
Pennsylvania Transportation Authority (SEPTA) argues, and the
District Court held, that DIA’s claims accrued prior to the
completion of the alterations when DIA discovered that the
planned alterations would not include elevators.

                                 I.

       We view the facts and draw all reasonable inferences in
the light most favorable to DIA, the party against whom
summary judgment was entered. Feesers, Inc. v. Michael
Foods, Inc., 498 F.3d 206, 208 (3d Cir. 2007) (citing Andreoli
v. Gates, 482 F.3d 641, 644 (3d Cir. 2007)).


                                 3
        DIA is a nonprofit corporation that seeks to eliminate
discrimination against disabled individuals in all aspects of
community life. To achieve this goal, DIA employs a variety of
methods including: government monitoring, political activism,
direct involvement in municipal planning, and, as a last resort,
litigation. Many of DIA’s approximately 450 members use
wheelchairs and rely on SEPTA for their public transportation
needs.

       SEPTA is an agency of the Commonwealth of
Pennsylvania responsible for providing public transportation in
Southeastern Pennsylvania. In Philadelphia, SEPTA’s City
Transit Division operates a vast network of subway and subway-
elevated rapid rails, regional rails, light rails, trackless trolleys,
and buses that provide over 850,000 passenger trips per day.
SEPTA receives federal funding for many of its activities,
including its recent remodeling of an entrance to the 15th Street
Station.

A.     15th Street Station and Courtyard

        The bustling 15th Street Station is located underground
near 15th and Market Streets in downtown Philadelphia.
Passengers can access the station in two ways. First, using the
stairway at the southwest side of 15th and Market Streets,
passengers can descend directly to the platform for the Market-
Frankford subway line. Second, using the stairway or escalator
at the northwest side of the same block, passengers can descend
to the “15th Street Courtyard.” From there, they can turn
northward toward the Suburban Regional Rail Line Station
(Suburban Station), or southward, toward the Market-Frankford

                                  4
platform. SEPTA’s renovations to this latter entrance gave rise
to the present dispute.1

        Prior to SEPTA’s renovations, the 15th Street Courtyard
included a set of stairs and two escalators enclosed within a
headhouse. On September 27, 1999, SEPTA received a
$700,000 grant from the Economic Development Administration
of the United States Department of Commerce for a project
entitled “Renovation of 15th and Market Streets Headhouse at
Suburban Station.” According to the grant, the project was to
involve “various renovations to the 15th and Market Streets
entrances and related areas” including “renovation of entrances
to the underground train station concourse; demolition of


       1
          The parties dispute whether the 15th Street Courtyard
is an “entrance” to the Market-Frankford Station or to the
Suburban Station. According to SEPTA, “in order to reach the
15th Street Market-Frankford Station, an individual” must first
enter “the Suburban Station Transit Facility at the 15th Street
Courtyard” and then “travel south in the 15th Street corridor,
exit Suburban Station, and travel over underground transit lines
before entering the 15th Street Market-Frankford Station.”
Regardless whether it is technically labeled an “entrance,” the
15th Street Courtyard undisputedly provides access to the
Market-Frankford Station. Accordingly, at this stage of the
litigation, we accept DIA’s characterization of the 15th Street
Courtyard as an “entrance” to the Market-Frankford Station.
Michael Foods, 498 F.3d at 208, 212. The District Court may
take up this nuance and determine its relevance to § 12147(a)
liability on remand.

                               5
existing facilities; the construction/installation of new stairs,
landscaping, lighting, signage, finishes, canopies; and all
appurtenances.”

       In accepting the Commerce Department funding, SEPTA
agreed to “pursue diligently the development of the Project so
as to ensure completion . . . within [the] time schedule.”
Specifically, the grant required SEPTA to begin construction
within 18 months of its receipt of the funds and to limit the total
construction period to 29 months. In addition, the grant was to
expire “five (5) years from the fiscal year of the Grant Award,”
requiring that the project be “physically and financially
completed by September 30, 2004.”

       Having secured funding, SEPTA applied to the City of
Philadelphia for a variance from certain provisions of the
Building Code. Among the provisions from which SEPTA
sought a variance was Section B-1110.2.2(9), which requires
that “[w]here building entrances are altered, or when plans are
presented to relocate and provide a new primary entrance, the
entrance shall be made accessible.” For obvious reasons,
SEPTA’s variance application caught the attention of DIA’s
legal counsel, Stephen F. Gold.

        Fearful that SEPTA’s renovations would not include an
elevator, Gold wrote to Edward McLaughlin, City
Commissioner for the Department of Licenses and Inspections.
In his letter of August 3, 2000, Gold expressed concern “that the
City would allow SEPTA to apply for such a variance on its
behalf for such a major public access point.” Gold insisted that
“[i]n addition to ensuring that renovations . . . are carried out in

                                 6
compliance with the Building Code, the City also has an
obligation to ensure that such renovations are . . . carried out in
compliance with the [Americans With Disabilities Act].” He
asked McLaughlin to keep him informed “as to how the City
plans to proceed with [SEPTA’s] variance request.”

        Gold received no response from McLaughlin and
consequently discussed his concerns with Pete Winebrake, an
attorney in the City Solicitor’s Office. Gold summarized the
discussion in a letter dated September 28, 2000: “As I stated on
the phone yesterday, this problem should be resolved before
construction commences, or you leave me with very few
options. I am very concerned that the City’s train has already
left the station and I must act sooner than later [sic]. I am
available to meet with you at your earliest convenience.”
(Emphasis in original.)

        Gold heard nothing more from Winebrake, but received
a letter dated November 14, 2000 from Assistant City Solicitor
Fredrick K. Pasour regarding the “15th Street Courtyard Portion
of the Suburban Station Project.” In pertinent part, Pasour’s
letter stated:

       I represent the City of Philadelphia with respect to
       the above-referenced project. I understand that
       you believe that the ADA, its regulations and the
       Accessibility Guidelines require an elevator in the
       15th Street courtyard. I also understand that you
       are considering bringing a lawsuit to enjoin the
       15th Street courtyard portion of the project if the
       City issues a building permit based on plans that

                                7
      do not include an elevator in the 15th Street
      courtyard.

      This letter is to advise you that the City doe [sic]
      not share your view that an elevator is required in
      the 15th Street courtyard and has issued a building
      permit for the project.2 Please remember that the
      15th Street courtyard will be readily accessible to
      and usable by individuals with disabilities. As
      you are aware, elevators are planned for other
      locations near the 15th Street courtyard.

      The current bids for the portion of the project that
      includes the 15th Street courtyard renovations are
      only good through December 30, 2000. If,
      therefore, you plan to bring an action challenging
      the 15th Street courtyard portion of the project,
      please do so in an expeditious manner.

      I understand that you had one meeting with
      representatives of the City and SEPTA at the 15th
      Street courtyard to discuss the project. I believe
      that another meeting this week may be useful in
      order to discuss the project in more detail and to
      determine if we can reach an agreement that is



      2
          It is unclear to what building permit this statement
refers as the City did not issue a permit for the 15th Street
Courtyard project until mid-February 2001. App’x 216.

                               8
       satisfactory to you, the disabled community, the
       City and SEPTA.

App’x 477.

       Despite Pasour’s letter, Gold did not immediately file a
lawsuit, and the City issued SEPTA a building permit on or
about February 14, 2001, describing the 15th Street Courtyard
project as follows:

       Demolition incorporates head house, stair,
       railings, limited wall, veneer, pavement, and
       lighting systems. Also to be removed are
       planters, fountain and ceilings. Construction
       scope consists of glass head house, stair, (2) retail
       spaces, railings, storefront sys., planters, lighting
       and paving installed, as well as new ceiling.

App’x 216. SEPTA commenced construction a few days later.

        The record suggests several explanations for DIA’s
decision not to file suit prior to this juncture. First, Gold
testified that in 2000, he met with representatives of SEPTA and
the City because “they were really anxious to get a commitment
from [him] that there would not be a lawsuit regarding 15th
Street.” See also App’x 477 (referring to a meeting between
Gold and “representatives of the City and SEPTA” to determine
if the parties could “reach an agreement”). According to Gold,
Frances Egan, Assistant to SEPTA’s General Manager for
Government and Public Affairs, and Deborah Russo, a
representative of the City, assured him that in lieu of an elevator

                                9
at 15th Street, SEPTA “would put in the elevator at City Hall
and begin construction in ‘02 with the completion date of ‘04.” 3
See also App’x 477 (noting that “elevators are planned for other
locations near the 15th Street courtyard”).

        Gold discussed the proposed compromise with DIA, and
DIA agreed that it was acceptable. Gold informed Egan of his
client’s assent, but neither party memorialized the deal.4
Assuaged nonetheless, 5 DIA took no further action until late




       3
           The City Hall project is discussed in Part I.B, infra.
       4
         Although the parties stipulated DIA’s allegations of the
DIA-SEPTA-City agreement out of the litigation, the stipulation
only precludes DIA “from presenting any claim that Defendant
SEPTA allegedly agreed to construct elevators at City Hall in
lieu of construction of an elevator at the northwest corner of
15th and Market Streets.” App’x 136 (emphasis added). Here,
DIA raises no “claim” based on the alleged agreement. See
Disabled in Action of Pa. v. Southeastern Pa. Transp. Auth., No.
03-CV-1577, 2006 WL 3392733, at *16 (E.D. Pa. Nov. 17,
2006) (hereinafter DIA). Rather, DIA proffers the agreement as
an explanation for its decision not to file suit before construction
began on the 15th Street Station entrance.
       5
         Gold was confident that he could rely on the assurances
of Egan and Russo because of their long professional
relationship, and DIA Executive Director Nancy Salandra was
content to wait and see if “[SEPTA] would do the right thing.”

                                 10
2002 when it appeared that SEPTA was not installing an
elevator at City Hall.6

        Gold’s explanation for DIA’s decision not to file a pre-
construction lawsuit is supported by a Settlement Agreement in
which DIA voluntarily dismissed its claims against the City, and
the City affirmed that it “only granted permits for [the 15th
Street Courtyard] renovation because [it] believed SEPTA had
agreed to construct elevators in the City Hall Courtyard in lieu
of the required elevator at 15th and Market.”

       Alternatively, the record suggests that at some point,
DIA’s strategy shifted from obtaining a pre-construction
injunction to pursuing post-construction remedies based on
Gold’s belief that even though “[SEPTA] had started


       6
          The foregoing account parallels the allegations in
DIA’s Second and Third Amended Complaints with one
exception. The Complaints state that the negotiations among
Gold, SEPTA, and the City occurred “[i]n 2000 while the 15th
and Market Street entrance was in construction.” App’x 111,
119. Construction on the entrance did not commence until
February 2001, however. App’x 212 (SEPTA’s Capital Project
Progress Report noting that a “[p]re-construction meeting”
regarding the “15th Street Entrance” was held on February 5,
2001) (emphases added); App’x 216. Because we must resolve
such factual discrepancies in the light most favorable to DIA,
we assume that construction had not commenced when the
alleged deal among DIA, SEPTA, and the City was brokered.
Michael Foods, 498 F.3d at 208, 212.

                              11
construction or even completed [construction],” the ADA
enabled DIA to force SEPTA to install an elevator. Gold
admitted that he gave Pasour’s admonition to file suit in an
expeditious manner “[v]ery, very, very much consideration” but
determined that he could “optimize representing [DIA] [by]
letting [SEPTA] move the stairs and begin[] the construction
because [DIA] could always get the elevator and make [SEPTA]
put it [in] if necessary along 15th Street.” For reasons that are
not clear from the record, Gold concluded that if construction
did not proceed, “there would be no elevator.” Accordingly, he
“decided . . . to let [SEPTA and the City] sit in their own petard
[sic].” 7

       Whatever the reasons for waiting, DIA filed its initial
Complaint on March 14, 2003, approximately eight months after
the newly renovated 15th Street Courtyard entrance was opened
on August 8, 2002 without an elevator. DIA requested
“permanent injunctive relief to enjoin [SEPTA] to begin
construction immediately of a[n] elevator at the 15th and Market



       7
         In the pantheon of misused metaphors, “hoist with his
own petard” may be preeminent. A “petard” is a small bomb
used to break down doors, but the word was derived from the
Middle French “peter,” meaning “to break wind.” See
W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY 1689
(1993). It is no wonder the word found favor with the master of
the double entendre. See W ILLIAM S HAKESPEARE, H AMLET, Act
III, Scene 4 (“For ‘tis the sport to have the enginer / Hoist with
his own petard”).

                               12
Street entrance . . . to assure access for persons with
disabilities.”

B.     City Hall Station and Courtyard

       The second subject of the present dispute is SEPTA’s
replacement of an escalator that carried passengers from the
concourse above the City Hall Station platform to City Hall
Courtyard.8 Located near the 15th Street Station, City Hall
Station is one of the busiest stops on the Broad Street subway
line and serves as a transfer point between the Broad Street
Line, the Market-Frankford Line, and Regional Rail Lines. For


       8
          The parties dispute whether this escalator is an exit
from the City Hall Station platform or from the City Hall Station
mezzanine, a concourse one level above the platform. DIA
asserts that the escalator “serves as an exit for patrons
disembarking from the Broad Street Subway City Hall Station
and pedestrians traversing the concourse.” SEPTA admits that
the escalator “serves as an exit for pedestrians traversing the
concourse” but denies that it is “an exit for patrons
disembarking from City Hall Station.” Apparently, the City Hall
Courtyard escalator does not extend beyond the mezzanine level
so that passengers exiting onto the City Hall Station platform
must take another escalator to the mezzanine level, then board
the City Hall Courtyard escalator to reach street level. At this
stage of the proceedings, we reject SEPTA’s hyper-technical
definition of “exit.” Michael Foods, 498 F.3d at 208, 212. The
District Court may consider the relevance, if any, of this dispute
on remand.

                               13
instance, from the concourse below City Hall Courtyard,
passengers can access the 11th and 13th Street Market-
Frankford Line platforms without using stairs.

       The City Hall Courtyard project was part of SEPTA’s
Escalator Replacement Program, launched in 1999 to improve
the safety of escalators throughout the system. SEPTA included
funding for the program in its FY 2001 Capital Budget after
holding a public meeting to discuss the improvements on May
22, 2000. Although no representative of DIA attended the
meeting, DIA’s Executive Director testified that DIA reviews
SEPTA’s Capital Budget each year and was aware of the
project.

       By August 17, 2001, SEPTA had barricaded the area
around the City Hall Courtyard escalator and posted signs that
read “Project of the Pennsylvania Public Transportation
Assistance Fund; Escalator Replacement at Erie, Spring Garden,
City Hall & 30th Street Stations; Southeastern Pennsylvania
Transportation Authority.” SEPTA removed the existing
escalator, extended the wellway and relocated the truss upon
which it sat, and installed a new escalator. Construction was
completed and the escalator was opened to the public on or
about August 24, 2003. The finished project did not include an
elevator. On February 15, 2005, DIA filed its Fourth Amended
Complaint, adding allegations regarding this project.

C.    The District Court Proceedings

       DIA filed its initial Complaint on March 14, 2003,
alleging that SEPTA’s renovations to the 15th Street Station

                             14
entrance violated the ADA and the RA. The District Court
dismissed the complaint because DIA failed to name the City of
Philadelphia, the owner of the real property upon which the
entrance is located, as a defendant. After the Court granted DIA
relief from the dismissal, DIA added the City as a defendant in
its First Amended Complaint. On October 10, 2003, DIA filed
a Second Amended Complaint, which included allegations about
a deal between DIA, SEPTA, and the City to install an elevator
at the City Hall Courtyard instead of the 15th Street Courtyard.

        After an unsuccessful settlement attempt, DIA filed a
Third Amended Complaint, adding an ADA “key station” claim.
See 42 U.S.C. § 12147(b); 29 C.F.R. § 37.47. SEPTA moved to
dismiss the key station claim and argued that portions of the
Third Amended Complaint should be stricken pursuant to a
stipulation between DIA and SEPTA. The District Court
refused to dismiss the key station claim, but DIA agreed to strike
its allegations that SEPTA had agreed to install an elevator at
City Hall in lieu of 15th Street.

        On August 16, 2004, DIA reached a settlement
agreement with the City. Therein, the City stipulated that “[i]t
is the City’s legal opinion that SEPTA is legally obligated under
the ADA and accompanying Regulations to construct an
elevator at the 15th and Market Street Courtyard entrance, which
SEPTA renovated.” Moreover, the City asserted that it “only
granted permits for [the 15th Street] renovation because [it]
believed SEPTA had agreed to construct elevators in the City
Hall Courtyard.” Based on this agreement, the District Court
dismissed the City from the case.


                               15
        On February 15, 2005, DIA filed a Fourth Amended
Complaint in which it added a second claim under § 12147(a)
based on SEPTA’s renovations to the City Hall Courtyard. DIA
alleged that SEPTA’s renovations to both the 15th Street and
City Hall Courtyards constituted “alterations” that triggered
ADA and RA accessibility obligations.9 42 U.S.C. § 12147(a);
29 U.S.C. § 794(a). DIA also alleged that both 15th Street and
City Hall are “key stations” that SEPTA must make accessible.
42 U.S.C. § 12147(b); 29 U.S.C. § 794(a). DIA requested, inter
alia, an injunction compelling SEPTA to construct elevators at
both locations. After completing discovery, the parties filed
cross motions for summary judgment.

       The District Court granted SEPTA’s motion for summary
judgment on all counts. As to DIA’s § 12147(a) claims, the
court reasoned that “[t]o determine the accrual date of a
discrimination claim, a court must focus on when the
discriminatory act occurred, not when the effect of that act
became painful.” DIA, 2006 WL 3392733, at *14 (citing
Chardon v. Fernandez, 454 U.S. 6, 8 (1981)). The District
Court rejected DIA’s argument that SEPTA’s discriminatory
acts occurred “upon completion of [the] alterations” to the 15th
Street and City Hall Courtyards. Id. at *13 (citing 42 U.S.C.
§ 12147(a)). Rather, the District Court held that the claims


       9
         Because the District Court dismissed DIA’s § 12147(a)
claims as barred by the statute of limitations, it did not reach the
vigorously disputed question of whether SEPTA’s renovations
constituted “alterations” within the meaning of the ADA. We
leave this question for the District Court on remand.

                                16
accrued when DIA knew, or had reason to know, that SEPTA’s
renovations would not include elevators. According to the
District Court, DIA had such knowledge regarding the 15th
Street Courtyard “no later than November 1, 2000, when DIA
was informed that SEPTA would proceed with the planned
construction at the 15th and Market Street Courtyard without
installing an elevator,” id. at *14, and regarding the City Hall
Courtyard, “at least as early as August 17, 2001,” when a sign
was posted “in the City Hall Courtyard on the outside of the
boarded-off construction area where the escalator was being
replaced.” Id. at *17. Because DIA filed its § 12147(a) claims
more than two years after these dates, the District Court
dismissed them as barred by the statue of limitations, id., and
DIA appealed.10

                               II.

       DIA’s claims arise under Section 227 of the ADA, 42
U.S.C. § 12147(a), and Section 504 of the RA, 29 U.S.C.
§ 794(a).11 The District Court had jurisdiction over these claims


       10
         The District Court also dismissed DIA’s “key station”
claims, holding that § 12147(b) does not create a private right of
action by which individuals may enforce Department of
Transportation regulations designating “key stations.” Id. at
*29. This decision is not challenged on appeal.
       11
         Because the procedures, rights, and remedies provided
by Section 227 of the ADA are identical to those provided by
Section 504 of the RA, see 42 U.S.C. §§ 12133 and 12147(a),

                               17
pursuant to 28 U.S.C. §§ 1331 and 1343. We review the District
Court’s final order granting summary judgment to SEPTA
pursuant to 28 U.S.C. § 1291.

       Our review is plenary, and we apply the same standard as
the District Court. Michael Foods, 498 F.3d at 212. We will
affirm the grant of summary judgment if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact” and that SEPTA is “entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c). In making
this determination, we “view the facts in the light most
favorable” to DIA and “draw all inferences” in DIA’s favor.
Michael Foods, 498 F.3d at 212 (quoting Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000)).

       In 1973, Congress passed the Rehabilitation Act to assure
that no individual with a disability “shall . . . be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). Seventeen years
later, Congress extended this mandate to cover all public


we will generally refer only to the ADA with the understanding
that both the ADA and the RA are implicated. See Doe v.
County of Centre, 242 F.3d 437, 446 (3d Cir. 2001); see also
McDonald v. Commw. of Pa., 62 F.3d 92, 95 (3d Cir. 1995)
(“Whether suit is filed under the Rehabilitation Act or under the
[Americans With] Disabilities Act, the substantive standards for
determining liability are the same.”).


                                18
transportation providers in Title II of the Americans With
Disabilities Act. See 42 U.S.C. §§ 12132 and 12131(1). Title
II begins with a general prohibition of disability-based
discrimination, § 12132, followed by seven provisions that
define what “shall be considered discrimination” for purposes
of the statute. 42 U.S.C. §§ 12142, 12143, 12144, 12146,
12147, 12148, and 12162. In this case, we address an important
question of first impression regarding one of these provisions:
when does a claim under § 12147(a) accrue?

                                III.

       Neither Title II of the ADA nor Section 504 of the RA
includes an express statute of limitations. As both statutes were
enacted prior to the effective date of the default four-year statute
of limitations for federal statutes, see 28 U.S.C. § 1658, we
borrow the statute of limitations of the most analogous state law
cause of action. North Star Steel Co. v. Thomas, 515 U.S. 29,
33-34 (1995); Wilson v. Garcia, 471 U.S. 261, 266-67 (1985).
The District Court concluded, and the parties do not dispute, that
Pennsylvania’s two-year statute of limitations for personal injury
claims should apply to claims under § 12147(a).

        This conclusion is consistent with our precedent
regarding the statute of limitations for federal civil rights claims.
See, e.g., Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000); Kost
v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Bougher v.
Univ. of Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989). It is also
consistent with the majority of Courts of Appeals that have
decided the question. See Gaona v. Town & Country Credit,
324 F.3d 1050, 1055 (8th Cir. 2003) (noting that “most Courts

                                 19
of Appeal[s] . . . have applied the state statute of limitations for
personal injury actions to claims under the Rehabilitation Act
and the ADA”); Everett v. Cobb County Sch. Dist., 138 F.3d
1407, 1409-10 (11th Cir. 1998); Soignier v. Am. Bd. of Plastic
Surgery, 92 F.3d 547, 551 (7th Cir. 1996); Baker v. Bd. of
Regents, 991 F.2d 628, 632 (10th Cir. 1993); Morse v. Univ. of
Vermont, 973 F.2d 122, 127 (2d Cir. 1992); Hickey v. Irving
Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir. 1992); cf. Wolsky
v. Med. Coll. of Hampton Rds., 1 F.3d 222, 223-25 (4th Cir.
1993).

       Accordingly, we hold that the statute of limitations
applicable to claims under Title II of the ADA and Section 504
of the RA is the statute of limitations for personal injury actions
in the state in which the trial court sits. In this case, the
applicable statute is 42 P A. C ONS. S TAT. § 5524, which
prescribes a two-year statute of limitations.

                                IV.

        The more difficult question — and the crux of the dispute
between DIA and SEPTA — is when this two year statute of
limitations begins to run. In answering this question, we note
that “[t]he ADA is a remedial statute, designed to eliminate
discrimination against the disabled in all facets of society,” and
as such, “it must be broadly construed to effectuate its
purposes.” Kinney v. Yerusalim, 812 F. Supp. 547, 551 (E.D.
Pa. 1993) (citing Tcherepnin v. Knight, 389 U.S. 332, 335
(1967)), aff’d, 9 F.3d 1067 (3d Cir. 1993).

                                A.

                                20
       Ordinarily, a statute of limitations begins to run from the
moment the potential plaintiff has a “complete and present cause
of action.” Bay Area Laundry & Dry Cleaning Pension Trust
Fund v. Ferber Corp., 522 U.S. 192, 195 (1997) (quoting
Rawlings v. Ray, 312 U.S. 96, 98 (1941)); Arnold, 232 F.3d at
366 (quoting Ross v. Johns-Manville Corp., 766 F.2d 823, 826
(3d Cir. 1985)) (limitations period begins to run “from the time
the cause of action accrue[s]”). For federal causes of action, the
accrual date is a matter of federal law. Romero v. Allstate
Corp., 404 F.3d 212, 221 (3d Cir. 2005).

       Where Congress has specified an accrual date by
“explicit command” or “by implication from the structure and
text of the statute,” we defer to its directive. TRW Inc. v.
Andrews, 534 U.S. 19, 27-28 (2001); see Romero, 404 F.3d at
222. “[I]n the absence of a contrary directive from Congress,”
we apply the “federal discovery rule,” which dictates that a
federal cause of action accrues “when the plaintiff discovers, or
with due diligence should have discovered, the injury that forms
the basis for the claim.” Romero, 404 F.3d at 222 (internal
quotation and citations omitted).12

        We agree with the parties that Congress did not
“explicitly command” an accrual date for § 12147(a) claims as
it has done for other civil rights actions. Cf. 42 U.S.C. 2000e-


       12
          The Supreme Court has not adopted the “discovery
accrual rule” as its own, Andrews, 534 U.S. at 27 (internal
citation omitted), and Justice Scalia has criticized the rule as
“bad wine of recent vintage.” Id. at 37 (Scalia, J., concurring).

                               21
5(e)(1) (“A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employment
practice occurred . . . .”); id. § 3613 (“An aggrieved person may
commence a civil action . . . not later than 2 years after the
occurrence or the termination of an alleged discriminatory
housing practice . . . .”). Nevertheless, for the reasons that
follow, we hold that the “structure and text of the statute,”
Andrews, 534 U.S. at 28, evince Congress’s intention that claims
under § 12147(a) accrue “upon the completion of . . .
alterations” to public transportation facilities.

                                1.

       The portion of § 12147(a) at issue in this appeal provides:

       With respect to alterations of an existing facility
       or part thereof used in the provision of designated
       public transportation services that affect or could
       affect the usability of the facility or part thereof,
       it shall be considered discrimination, for purposes
       of section 12132 of this title and section 794 of
       Title 29, for a public entity to fail to make such
       alterations (or to ensure that the alterations are
       made) in such a manner that, to the maximum
       extent feasible, the altered portions of the facility
       are readily accessible to and usable by individuals
       with disabilities, including individuals who use
       wheelchairs, upon the completion of such
       alterations.



                                22
       As the District Court correctly observed, the dispute
between DIA and SEPTA “emanates from the difference in how
the parties interpret” this provision “as to when the alleged
discrimination occurs.” DIA, 2006 WL 3392733, at *11. Like
the parties and the District Court, we believe § 12147(a)’s
concluding phrase — “upon the completion of such alterations”
— is of fundamental importance in answering this question.

        DIA argues that the phrase modifies the entire definition
of what “shall be considered discrimination” because “only
when . . . alterations are completed and the inaccessible facility
is re-opened will people with mobility disabilities be subject to
discrimination.” Therefore, DIA concludes, claims under
§ 12147(a) do not accrue until alterations are completed.

        SEPTA invokes the rule of the last antecedent, arguing
that the “upon the completion” phrase only modifies the phrase
“the altered portions of the facility are readily accessible to and
usable by individuals with disabilities” and not “the entire
definition of what constitutes discrimination.” 13 Under this


       13
           The “rule of the last antecedent” is a principle of
statutory interpretation under which “a limiting clause or phrase
. . . should ordinarily be read as modifying only the noun or
phrase that it immediately follows.” Barnhart v. Thomas, 540
U.S. 20, 26 (2003) (emphasis added). This rule does not help
SEPTA because the statutory phrase immediately preceding
“upon the completion of such alterations” is “including
individuals who use wheelchairs.” To be precise, SEPTA is
arguing for a rule of the second-to-last antecedent — a far more

                                23
interpretation, which the District Court adopted, the function of
the “upon the completion” phrase is “merely [to] suggest that
accessibility for disabled individuals must be in place at the time
the alterations are completed.” DIA, 2006 WL 3392733, at *13.
In other words, the phrase merely acknowledges that while
renovations are in progress, facilities will necessarily be
inaccessible to everyone, including “individuals with
disabilities,” and that this temporary inaccessibility is not what
§ 12147(a) prohibits.

        Our evaluation of these conflicting interpretations is
guided by familiar rules of statutory construction. Our primary
concern is to give effect to Congress’s intent. Rosenberg v. XM
Ventures, 274 F.3d 137, 141 (3d Cir. 2001). We assume that
“Congress expresses its intent through the ordinary meaning of
its language” and therefore begin “with an examination of the
plain language of the statute.” Id. If the language is
unambiguous, our inquiry is at an end. Id.

       A statutory provision is not ambiguous simply because
“by itself, [it is] susceptible to differing constructions” because
in addition to the “statutory language . . . itself,” we take
account of “the specific context in which that language is used,
and the broader context of the statute as a whole.” In re Price,
370 F.3d 362, 369 (3d Cir. 2004). We assume, for example, that
every word in a statute has meaning and avoid interpreting one
part of a statute in a manner that renders another part
superfluous. Rosenberg, 274 F.3d at 141-42. We also consider


aspirational proposition.

                                24
the overall “object and policy” of the statute, United States v.
Schneider, 14 F.3d 876, 879 (3d Cir. 1994), and avoid
constructions that produce “odd” or “absurd results” or that are
“inconsistent with common sense.” See Public Citizen v. U.S.
Dept. of Justice, 491 U.S. 440, 454 (1989) (internal quotations
omitted); 2A N. S INGER, S UTHERLAND S TATUTES AND
S TATUTORY C ONSTRUCTION § 45:12, at 92 (6th ed. 2000)
(hereinafter S UTHERLAND).

       Applying these principles to § 12147(a), we find DIA’s
interpretation of the “upon the completion” phrase more
persuasive. The language appears in the “specific context” of a
single sentence that defines activities that “shall be considered
discrimination”; and in the “broader context” of Title II, which
assures that no “individual with a disability” is “subjected to
discrimination.”       42 U.S.C. §§ 12147(a) and 12132.
“Discrimination,” as it is ordinarily defined, is the denial of
“privileges to a certain class because of race, age, sex,
nationality, religion, or handicap.” B LACK’S L AW D ICTIONARY
500 (8th ed. 2004). The privileges at stake in § 12147(a) are
access to, and use of, public transportation facilities. It is
difficult to understand how these privileges are denied to
individuals with disabilities by the mere promulgation or
approval of renovation plans that do not include accessibility
features. Instead, as Congress recognized, it is only when
renovations are completed that individuals with disabilities will
be excluded from accessing and using such facilities while
others will not. This is the time at which disabled individuals
are subjected to the disparate treatment that § 12147(a) was
enacted to prevent.


                               25
        SEPTA’s argument that the “upon the completion”
language merely clarifies that § 12147(a) imposes no duty upon
public entities to ensure accessibility while transportation
facilities are under construction is specious. We are confident
that Congress would not have felt compelled to make such an
obvious clarification. See Public Citizen, 491 U.S. at 454.
Faced with a choice between SEPTA’s interpretation, which
essentially renders the phrase surplusage, and DIA’s
interpretation, which gives it substantial effect, we choose the
latter. See Silverman v. Eastrich Multiple Investor Fund, L.P.,
51 F.3d 28, 31 (3d Cir. 1995) (A statute “should be construed so
that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.”);
S UTHERLAND § 45:12, at 94 (“[A] construction that renders a
portion of the statute meaningless should not be reached by the
court unless that construction is unavoidable.”); S UTHERLAND §
46:06, at 190-92 (“No clause[,] sentence[,] or word shall be
construed as superfluous, void or insignificant if the
construction can be found which will give force to . . . all the
words of the statute.”).

       We thus interpret the “upon the completion” clause as
modifying the statutory definition of discrimination such that
claims under § 12147(a) arise “upon the completion” of
inaccessible “alterations.”

                                2.

        Our interpretation of this seminal clause in dispute on
appeal is bolstered by the remainder of the statute. In fact, even
if the “upon the completion” clause was absent from the statute,

                                26
we would conclude that a claim under § 12147(a) does not
accrue until alterations are completed.

        As the District Court stated, “[t]o determine the accrual
date of a discrimination claim, a court must focus on when the
discriminatory act occurred.” DIA, 2006 WL 3392733, at * 14
(citing Chardon, 454 U.S. at 8). Section 12147(a) defines two
closely related discriminatory acts: the failure (1) “to make”
alterations, and (2) the failure “to ensure that . . . alterations are
made,” in such a manner that the altered portions of
transportation facilities are accessible and usable.

        Regarding the first act, we agree with the amicus curiae
submission of the U.S. Department of Justice that as a matter of
logic, there can be no “fail[ure] to make” the “altered portions”
of a facility accessible until the alterations are completed. The
relevant act is “to make” — “to cause (something) to exist.”
B LACK’S L AW D ICTIONARY 975 (8th ed. 2004). Merely funding,
designing, approving, or even commencing construction of
alterations that will not provide accessibility does not “cause”
such alterations “to exist,” especially in light of the notoriously
contingent nature of construction plans. See, e.g., DIA v. Sykes,
833 F.2d 1113, 1115 (3d Cir. 1987) (subway station renovation
planned and funded in 1979 but modified in 1981 to exclude
elevator). Therefore, an individual cannot suffer discrimination
under this portion of the statute until the alterations are
completed.

       Unlike the first discriminatory act, the second act can
logically occur before, during, or after construction. For
example, a public entity arguably fails “to ensure that . . .

                                 27
alterations are made” when it fails to insist that construction
drawings include certain features.14 Although rational in vacuo,
this reading is unfaithful to the structure of the statute. Price,
370 F.3d at 369. The phrase “or to ensure that the alterations are
made” appears in parentheses immediately following the phrase
“to fail to make such alterations,” indicating that the meaning of
the former phrase is related to, or dependent upon, the latter.
See Peters v. Ashcroft, 383 F.3d 302, 309 (5th Cir. 2004) (noting
that parentheses “reduce[] the grammatical import” of the
language contained therein); see generally Pritchard v. Liggett
& Myers Tobacco Co., 350 F.2d 479, 483 (3d Cir. 1965) (noting
that punctuation can be a relevant factor in statutory
interpretation); S UTHERLAND § 47:15, 261 (favoring rule that
treats punctuation as a relevant factor in statutory construction).
Furthermore, both phrases center around a form of the verb “to
make,” an additional indication that they are, in DIA’s words,
“two sides of the same coin.” See Merrill Lynch, Pierce, Fenner


       14
           We nevertheless question how plans can “ensure”
certain results, for it is axiomatic that even the best laid plans of
mice and men often go awry. See, e.g., Sykes, 833 F.2d at 1115;
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840
F.2d 985, 986 (1st Cir. 1988); see generally Harris v. N.Y. State
Dept. of Health, 202 F. Supp. 2d 143, 155 (S.D.N.Y. 2002)
(“[A]s is common wisdom, even the best laid plans are bound to
contain inherent flaws, and — in the course of their evolution
from idea to reality, from rudiments to perfected model — to
encounter operational and developmental difficulties, and even
to be tested by purposeful hindering or corruption of their
effective functioning.”).

                                 28
& Smith, Inc. v. Dabit, 547 U.S. 71, 86 (2006) (“Generally,
identical words used in different parts of the same statute are .
. . presumed to have the same meaning.”) (internal quotation and
citation omitted). Given this context, we hesitate to ascribe to
the phrase “ensure that the alterations are made” the broad and
independent meaning SEPTA urges. See Mizrahi v. Gonzales,
492 F.3d 156, 166 (2d Cir. 2007) (declining to ascribe
independent meaning to parenthetical statutory phrase beginning
with word “or” because “it can reasonably be construed to
illustrate or explain” the preceding phrase).

        It is more probable that Congress included the
parenthetical and used the passive verb form “are made”
because it recognized that a public entity is rarely the entity that
“make[s]” the alterations. Instead, alterations “are made” by
sundry contractors and subcontractors.               Without the
parenthetical, a public entity could immunize itself from
§ 12147(a) liability by delegating renovation projects to private
entities that are not subject to ADA liability. 42 U.S.C. § 12132.
The parenthetical closes this loophole by placing the onus on the
public entity, as opposed to its agents, “to ensure” that
alterations “are made” in an accessible and usable manner.

        This interpretation comports with a similar provision in
Title III of the ADA (dealing with public accommodations):

       “[D]iscrimination . . . includes — with respect to
       a facility or part thereof that is altered by, on
       behalf of, or for the use of an establishment in a
       manner that affects or could affect the usability of
       the facility or part thereof, a failure to make

                                29
       alterations in such a manner that, to the maximum
       extent feasible, the altered portions of the facility
       are readily accessible to and usable by individuals
       with disabilities.”

42 U.S.C. § 12183(a)(2) (emphasis added). Absent from
§ 12183(a)(2) is the “or to ensure that the alterations are made”
phrase. Instead, the statute provides that the offending
alterations can be made “by” or “on behalf of” a public entity.
This language is consistent with our conclusion that Congress
included the parenthetical phrase in § 12147(a) to cover the
situation in which alterations to a public transportation facility
are made “on behalf of” a public entity.

        Moreover, regardless whether the “mak[er]” of the
alterations is the public entity itself or the entity’s agents, the
general activity that § 12147(a) regulates is the same: the
“mak[ing]” of alterations. Cf. 42 U.S.C. § 3604(f)(3)(C)
(regulating the underlying activities of “design[ing] and
construct[ing]” multifamily dwellings) (emphases added). As
discussed, the failure to “make” alterations in a certain manner,
as opposed to “plan” or “design” them, cannot logically occur
until the completion of such alterations.

                                3.

        Finally, to establish whether a public entity committed
the discriminatory acts of “fail[ing] to make” alterations, or
“fail[ing] . . . to ensure that . . . alterations are made” in an
accessible manner, the statute directs us to determine whether
“the altered portions of the facility are readily accessible” —

                                30
not whether the portions to be altered will be readily accessible.
42 U.S.C. § 12147(a) (emphases added). The verb tenses
employed by Congress in this phrase (i.e. “altered,” past tense,
and “are,” present tense) further clarify that the time for passing
upon a public entity’s success or failure in complying with the
statute is upon completion of the alterations.

        In short, despite the District Court’s repeated emphasis
on SEPTA’s construction plans,15 the word “plan” is absent
from the statute while the phrase “completion of . . . alterations”
is present. Consistent with this language, as well as the structure
and purpose of the statute, we hold that the discriminatory acts
defined by § 12147(a) occur, and the statute of limitations
begins to run, “upon the completion of . . . alterations” to public
transportation facilities.

                                B.



       15
          See, e.g., DIA, 2006 WL 3392733, at *12 (referring to
“SEPTA’s planned renovations”) (emphasis in original); id.
(formulating the question presented as “when, in a suit under the
ADA, a discriminatory action is deemed to have occurred,
where the alleged discriminatory action is the violation of a
statutory obligation to include an accommodation for disabled
individuals in planning and completing a construction project”)
(emphasis added); id. at *14 (noting importance of SEPTA’s
intention to “proceed with the planned construction at the 15th
and Market Street Courtyard without installing an elevator”)
(emphasis added).

                                31
       Before discussing the policy considerations underlying
our holding, we clarify the proper application of the discovery
rule as it was the basis of the District Court’s holding and the
subject of extended debate between the parties. The District
Court reasoned:

       [In] the absence of any explicit statutory
       limitation period . . . the Court must look
       elsewhere for guidance as to when a cause of
       action such as this one accrues. Under federal
       law, a claim accrues on the date when the plaintiff
       knows or has reason to know of the injury that is
       the basis of the action. To determine the accrual
       date of a discrimination claim, a court must focus
       on when the discriminatory act occurred, not
       when the effect of that act became painful.

DIA, 2006 WL 3392733, at *13-*14 (internal quotations and
citations omitted). Although largely accurate, two corrections
to this statement of law are necessary. First, as discussed in Part
IV.A, in addition to arising from an “explicit statutory”
directive, id. at *13, an accrual date can arise “by implication
from the structure and text of the statute.” Andrews, 534 U.S.
at 27-28. Second, the District Court erred in applying the
discovery rule to establish when DIA’s claims accrued before
first determining, per the terms of § 12147(a), when DIA’s
alleged injuries occurred. These inquiries are analytically
distinct.

       Because a potential plaintiff cannot discover his injury
before it has occurred, the discovery rule only postpones the

                                32
accrual date of a claim “where the [plaintiff] is unaware of the
injury.” CGB Occupational Therapy, Inc. v. RHA Health Servs.
Inc., 357 F.3d 375, 384 (3d Cir. 2004). It does not accelerate
the accrual date “when the [plaintiff] becomes aware that he will
suffer injury in the future.” Id.; see Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 590 (3d Cir. 2005) (“The discovery rule
delays the initial running of the statute of limitations, but only
until the plaintiff has discovered: (1) that he or she has been
injured; and (2) that this injury has been caused by another
party’s conduct.”) (emphasis added); Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994) (The
discovery rule “postpones the beginning of the limitations period
from the date a plaintiff was wronged until the date a plaintiff
discovers that he or she was injured.”) (emphasis added).

        Accordingly, the first step in applying the discovery rule
in a situation like the present is to establish when the injurious
discriminatory act defined by the statute actually occurred. See
Podobnik, 409 F.3d at 590. The second step is to determine
whether that injury was immediately discoverable, or whether
the accrual date will be postponed until it is reasonable to expect
the plaintiff to discover the injury. Oshiver, 38 F.3d at 1386.
Having skipped step one, the District Court’s application of the
discovery rule resulted in an accrual date that preceded the
occurrence of DIA’s alleged injuries.

         Because DIA was not injured before SEPTA completed
its alterations, the discovery rule would not have rendered DIA’s
claims untimely.



                                33
                                C.

       We conclude by reviewing the policy considerations
underlying our holding. See Price, 370 F.3d at 375. In
particular, we appreciate the District Court’s concern that:

       [I]t would be impractical to impose upon a
       defendant the requirement that it fully complete a
       facility modification before having to address any
       assertion that modifications that can be clearly
       understood from design draw ings and
       specifications amount to alterations triggering an
       obligation under the ADA that might require
       significant and material modifications that surely
       would have been more easily, efficiently and
       economically incorporated well prior to the
       completion of the work.

DIA, 2006 WL 3392733, at *13. This concern — that public
entities will incur unnecessary expense if potential plaintiffs can
wait until “the last nail is hammered into place” to bring suit —
is assuaged by a number of mitigating and countervailing
considerations. Id.

        First, our interpretation of § 12147(a) does not prevent a
public entity like SEPTA from obtaining preliminary declaratory
relief to ensure ADA compliance prior to commencing
alterations. See 28 U.S.C. § 2201. Declaratory relief is
available “to settle actual controversies before they ripen into
violations of a law or a breach of duty.” United States v. Fisher-
Otis Co., 496 F.2d 1146, 1151 (10th Cir. 1974) (emphasis

                                34
added); see Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d
643, 647 (3d Cir. 1990). Such relief is appropriate where “there
is a substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality.” Armstrong
World Indus., Inc. by Wolfson v. Adams, 961 F.2d 405, 411 (3d
Cir. 1992) (quoting Md. Cas. Co. v. Pacific Coal & Oil Co., 312
U.S. 270, 273 (1941)).

       Although SEPTA’s activities did not ripen into actual
violations of § 12147(a) until SEPTA completed its alterations
to the 15th Street and City Hall Courtyards, a substantial,
immediate, and real controversy existed between SEPTA and
DIA regarding these activities much earlier. On August 3, 2000,
DIA’s attorney, Stephen Gold, wrote to City Commissioner
Edward McLaughlin expressing DIA’s concern that the 15th
Street Courtyard project would not comply with the ADA. Gold
relayed the same concerns to SEPTA throughout 2000 in a series
of meetings with SEPTA and the City. In these meetings, Gold
also discussed SEPTA’s ADA obligations regarding the City
Hall Courtyard project. Because of these interactions, SEPTA
was “anxious” to get a commitment from DIA “that there would
not be a lawsuit” and was undeniably aware that a substantial
controversy existed. Accordingly, to the extent that SEPTA’s
planned “modifications [could be] clearly understood from
design drawings and specifications,” SEPTA could have
obtained a declaratory judgment to assuage its anxieties before
proceeding with construction.

       Conversely, our interpretation of § 12147(a) does not
prevent an entity like DIA from seeking an injunction prior to
the commencement of construction to prevent threatened ADA

                              35
violations. See 43A C.J.S. Injunction § 8 (“A preliminary
injunction is an anticipatory remedy which prevents the
perpetration of a threatened wrong . . . .”); United States v. W.T.
Grant Co., 345 U.S. 629, 633 (1953); Swift & Co. v. United
States, 276 U.S. 311, 326 (1928).

        There is little doubt that it would have been better for all
if DIA or SEPTA had sought declaratory or injunctive relief
before construction began. It does not follow, however, that a
claim for relief on the merits under § 12147(a) accrues as soon
as claims for declaratory and injunctive relief accrue. Ramey v.
District 141, 378 F.3d 269, 279 n.4 (2d Cir. 2004) (“[T]he
possibility of maintaining a preliminary injunction proceeding
does not trigger the statute of limitations.”); see Reiter v.
Cooper, 507 U.S. 258, 267 (1993) (“While it is theoretically
possible for a statute to create a cause of action that accrues at
one time for the purposes of calculating when the statue of
limitations begins to run, but at another time for purposes of
bringing suit, we will not infer such an odd result in the absence
of any such indication in the statute.”); Dasgupta v. Univ. of
Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir. 1997) (“If an
employer tells his employee, ‘I am going to infringe your rights
under Title VII at least once every year you work for me,’ this
does not start the statute of limitations running on the future
violations, violations that have not yet been committed.”). The
following hypothetical adapted from our decision in CGB
Occupational Therapy, 357 F.3d at 384 n.9, illustrates our point.

       A telephone company informs a homeowner that it has a
right-of-way across the homeowner’s property, and that next
Friday, it plans to utilize the right-of-way to repair an

                                36
underground line. The homeowner informs the company that he
disputes the parameters of the right-of-way. Upon receiving
notice of this controversy, the phone company could seek a
declaratory judgment to establish the parameters of the right-of-
way and protect itself from future trespass liability. See Centel
Cable Television Co. v. Admiral’s Cove Assocs., Ltd., 835 F.2d
1359, 1361 (11th Cir. 1988); Commw. v. Wertelet, 696 A.2d
206, 209-10 (Pa. Super. 1997). Conversely, the homeowner
could obtain an injunction to prevent the phone company from
entering his property until the right-of-way dispute is resolved.
See Wertelet, 696 A.2d at 209-10. Even though both declaratory
and injunctive relief are available, the homeowner has no
trespass claim against the phone company until it physically
enters his property. CGB Occupational Therapy, 357 F.3d at
384 n.9; see United States v. Union Corp., 277 F. Supp. 2d 478,
495 (E.D. Pa. 2003) (citing R ESTATEMENT (2 D) OF T ORTS §
158).

        Assume that neither party seeks preliminary relief and the
phone company enters the homeowner’s property. At the
moment of entry, the homeowner’s trespass claim accrues. See
CGB Occupational Therapy, 357 F.3d at 384 n.9; Union Corp.,
277 F. Supp. 2d at 495. It would be incorrect to say that the
statute of limitations on this claim began to run from the time
the parties discovered the dispute regarding the right-of-way.
Similarly, it would be incorrect to say that the statute of
limitations on a § 12147(a) claim begins to run as soon as the
parties discover a controversy that may entitle them to
preliminary declaratory and injunctive relief.



                               37
       In light of the availability of preliminary relief to parties
facing the dilemma that confronted DIA and SEPTA, we believe
the District Court’s concern that public entities will be forced to
“re-engineer” completed projects “to add the ADA-compliance
features” is overstated. DIA, 2006 WL 3392733, at *13. That
may be the unfortunate consequence of our decision in this
instance, however.

        Second, the District Court’s desire to give public entities
repose from § 12147(a) liability is not advanced by an
interpretation of the statute that incorporates the discovery rule.
See DIA, 2006 WL 3392733, at *13-*14. The discovery rule
dictates that a cause of action accrues when a potential claimant
discovers, or should have discovered, the injury that forms the
basis of his claim. Romero, 404 F.3d at 222. As DIA argues, it
is easy to imagine a situation where an individual with a
disability relocates to Philadelphia many years from now and
attempts to use the 15th Street or City Hall Courtyard for the
first time. A court might fairly conclude that this individual
neither discovered, nor, having moved from some distant locale,
should have discovered, the inaccessibility of these stations until
his arrival there.16 Perhaps recognizing this danger, Congress


       16
           Although we do not decide this question, we would
hesitate to apply the discovery rule in such a manner. The
discovery rule originated as an equitable doctrine to extend the
period during which victims of latent injuries could seek
recovery. Andrews, 534 U.S. at 27 (noting that the “cry for [the
discovery] rule is loudest” in “latent disease and medical
malpractice” cases); Oshiver, 38 F.3d at 1386 n.5 (noting that

                                38
rejected a variable accrual date 17 in favor of a bright-line rule:
§ 12147(a) claims accrues “upon the completion of . . .
alterations.” We find nothing “implausible,” much less
imprudent, about this decision. DIA, 2006 WL 3392733, at *13

       To the contrary, we find that Congress struck a wise
balance between the plaintiff-friendly accrual rule just described
and the defendant-friendly rule advanced by SEPTA. If
§ 12147(a) dictated that claims accrued during the planning
stages of a project as SEPTA suggests, potential claimants
would be encouraged to sue early and often, and public entities
would have little opportunity to address accessability concerns
informally before being hailed into federal court. See Franconia
Assoc. v. United States, 536 U.S. 129, 146-47 (2002). This
result would be antithetical to Congress’s explicit directive that




“the discovery rule’s origins are in products liability and medical
malpractice cases”). We find nothing latent about the injuries
defined in § 12147(a) because the fact that newly renovated
subway stations do not include elevators should be readily
apparent to any reasonably diligent potential plaintiff.
       17
           As further evidence of the indeterminate nature of
SEPTA’s interpretation of § 12147(a), SEPTA’s counsel failed
at oral argument to identify a point during the planning phases
of the 15th Street and City Hall projects (e.g. upon receipt of
funding, approval of blueprints, or letting of contracts) at which
it would have been reasonable to conclude that DIA should have
discovered its alleged injuries.

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ADA claims be resolved whenever appropriate through
“alternative means of dispute resolution.” 42 U.S.C. § 12212.

       SEPTA’s proffered rule also encourages claimants to
bring unripe lawsuits that rely on “contingent future events that
may not occur as anticipated, or indeed may not occur at all.”
Texas v. United States, 523 U.S. 296, 300 (1998). Here, for
example, SEPTA could have decided to install elevators before
completing its renovations, thus making DIA’s ADA and RA
claims unnecessary.

        Third, the facts of this case belie the District Court’s
suggestion that applying the discovery rule to § 12147(a) will
assure that accessibility concerns will be addressed “well prior
to completion of the work.” DIA, 2006 WL 3392733, at *13.
In fact, under the District Court’s accrual theory, DIA could
have filed a timely claim after SEPTA completed the 15th Street
Station renovations. The District Court concluded that DIA had
notice of SEPTA’s allegedly injurious alterations to the 15th
Street Courtyard “no later than November 1, 2000.” DIA, 2006
WL 3392733, at *14. Accepting the District Court’s conclusion
that DIA’s cause of action accrued on this date, DIA would have
had until November 1, 2002 to bring suit. SEPTA completed
construction on the 15th Street Courtyard on August 8, 2002,
three months before November 1, 2002. Thus, it is apparent that
the rule of law established by the District Court is ineffectual in
preventing cases from being brought after construction is
completed.

      In sum, although we recognize the District Court’s
concerns about the inefficiency of requiring public entities to

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address accessibility deficiencies after the expenditure of
substantial resources, that is the “natural effec[t] of the choice
Congress has made” when it included the phrase “upon the
completion of such alterations” in the statute. Ricks, 449 U.S.
at 260 n.11 (citation omitted). We are bound by this choice.

                               V.

        It is undisputed that DIA’s § 12147(a) claims were timely
if the statute of limitations began to run from the date the
alterations to the 15th Street and City Hall Stations were
completed. See App’x 159, 180 (15th Street Courtyard project
completed on August 8, 2002); App’x 2 (Complaint regarding
15th Street Courtyard filed on March 14, 2003); App’x 164,
188, 320 (City Hall Courtyard project completed in August
2003); App’x 11 (Complaint regarding City Hall Courtyard filed
on February 15, 2005). Because we have so held, we reverse the
District Court’s grant of summary judgment in favor of SEPTA
and remand for further proceedings consistent with the opinion.




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