                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-2125



BRILLIANT SEMENOVA,

                Plaintiff - Appellant,

           v.

MARYLAND TRANSIT ADMINISTRATION,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:14-cv-03413-JFM)


Argued:   December 8, 2016                 Decided:   January 10, 2017


Before TRAXLER, FLOYD, and THACKER, Circuit Judges.


Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Floyd joined. Judge Traxler wrote a
dissenting opinion.


ARGUED: Joel Robert Zuckerman, MAXWELL BARKE & ZUCKERMAN LLC,
Rockville, Maryland, for Appellant.      Julie Theresa Sweeney,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.    ON BRIEF: James S. Maxwell, MAXWELL BARKE &
ZUCKERMAN LLC, Rockville, Maryland, for Appellant.     Brian E.
Frosh, Attorney General, Jennifer L. Katz, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee.
THACKER, Circuit Judge:

               Brilliant     Semenova        (“Appellant”)      sued     the    Maryland

Transit      Administration        (“Appellee”)      pursuant     to     the   Americans

with         Disabilities          Act       (“ADA”),         alleging         disability

discrimination in its provision of public services.                              The ADA

does not include a statute of limitations, so the district court

applied      the     two-year      statute    of   limitations        from     Maryland’s

Anti-Discrimination Law (the “Maryland Law”) and dismissed the

suit as untimely.          But because the Maryland Law does not contain

a cause of action for disability discrimination in the provision

of public services, the closer state-law analog to Appellant’s

claim is a general civil action, which is subject to a three-

year       statute    of   limitations.           Applying     this    more    analogous

statute       of     limitations,     we     reverse    and    remand     because    the

complaint      here     alleges     discrimination       occurring       within    three

years of its filing.

                                             I.

               On October 30, 2014, Appellant filed a complaint in

the United States District Court for the District of Maryland

alleging Appellee violated Title II of the ADA in operating its

commuter      bus     service. 1      Appellant      alleges     that    although    she


       1
       Title II applies to public entities, including state and
local governments and their instrumentalities, see 42 U.S.C.
§ 12131(1), and prohibits disability discrimination in the
(Continued)
                                              2
suffers from cerebral palsy and uses a walker or crutches, “[o]n

numerous occasions, beginning in or about October, 2011 . . .

and continuing through 2012,” bus operators refused to use an

assistance lift or otherwise assist her in boarding the bus.

J.A. 7. 2    Because she relied on the bus to attend classes at the

Community College of Baltimore County, Appellant alleges, this

discrimination forced her withdrawal from school “in the summer

of 2012.”     Id. at 8.

             Appellee     moved      to     dismiss    on     timeliness      grounds,

arguing     that   because     the    ADA    does    not    provide   a   statute   of

limitations, ADA claims brought in Maryland are subject to the

two-year statute of limitations found in the Maryland Law; and

the last alleged discriminatory act was over two years before

Appellant filed her complaint.                  Appellant responded that her

complaint was timely because Maryland’s three-year statute of

limitations for general civil actions applies to her claim.

             In    response,    the       district    court    issued     a   one-page

memo, containing only one paragraph explaining why it sided with

Appellee, and dismissed Appellant’s complaint.                    Without further




provision of public transportation services, see § 12132; 49
C.F.R. § 37.5.
     2 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                            3
illumination, the district court acknowledged that the Maryland

Law “does not expressly apply to disability claims related to

public accommodations” but nevertheless concluded, “the Fourth

Circuit would find the two year limitations period [contained in

the    Maryland   Law]    to    be    the       one       that    should”    apply    to

Appellant’s    claim.      J.A.      36.       In     a    separate   order    without

further reasoning, the district court dismissed the complaint as

untimely.    This appeal followed.

                                       II.

            We review de novo dismissal pursuant to Federal Rule

of Civil Procedure 12(b)(6), assuming as true the complaint’s

factual allegations and construing “all reasonable inferences”

in favor of the plaintiff.            Belmora LLC v. Bayer Consumer Care

AG, 819 F.3d 697, 702 (4th Cir. 2016) (internal quotation marks

omitted).     A court may grant a 12(b)(6) motion on statute of

limitations grounds only “if the time bar is apparent on the

face of the complaint.”         Dean v. Pilgrim’s Pride Corp., 395 F.3d

471, 474 (4th Cir. 2005).

                                       III.

            Because Title II of the ADA does not contain a statute

of    limitations,   federal    courts         “borrow      the   state     statute   of

limitations that applies to the most analogous state-law claim.”

A Soc’y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir.

2011).      Although     “the   most       analogous        statute    need    not    be

                                           4
identical,”      state          legislation       containing          a     statute       of

limitations will only control if it provides substantially “the

same rights and remedies” as the ADA.                       Wolsky v. Med. Coll. of

Hampton Roads, 1 F.3d 222, 224–25 (4th Cir. 1993).                          In A Society

Without   A    Name   v.    Virginia,       for   example,       we       considered     the

applicable      limitations        period       for     ADA     claims       brought      in

Virginia.      See 655 F.3d at 347–48.                 We held that the one-year

statute of limitations in the Virginia Rights of Persons with

Disabilities      Act      applies,     given         the     state       law’s    express

pronouncement      that     regulations         promulgated       pursuant         to    the

statute   “shall      be   consistent,      whenever         applicable,”         with   the

ADA.   Id. at 348 (quoting Va. Code. Ann. § 51.5–40).

              Given the substantially similar language between the

ADA and the Rehabilitation Act, see A Soc’y Without A Name, 655

F.3d at 347, we have applied the same analysis to determine the

applicable statute of limitations for Rehabilitation Act claims.

Thus, in Wolsky v. Medical College of Hampton Roads, we held

that   the    statute      of    limitations      in    the     Virginia      Rights      of

Persons with Disabilities Act also applies to Rehabilitation Act

claims brought in Virginia, instead of the more general statute

of limitations for personal injury claims.                      See 1 F.3d at 225.

We deemed the Virginia law an “exact state law counterpart” to

the Rehabilitation Act because it tracks the language of the

federal law, requires regulations promulgated pursuant to state

                                            5
law to be consistent with the federal law, and affords the same

remedies as the federal law.               Id. at 224–25.

               Similarly, in McCulloch v. Branch Banking & Trust Co.,

we held that the 180-day statute of limitations in the North

Carolina        Handicapped        Persons          Protection        Act     applies    to

Rehabilitation Act claims brought in that state.                              See 35 F.3d

127, 132 (4th Cir. 1994).                 In so holding, we relied in part on

the statute’s prohibition of the same type of discrimination

alleged in the underlying complaint.                   See id. at 130.

               Critically, however, the Maryland Law does not provide

Appellant “the same rights and remedies” as the ADA because it

does not provide a cause of action for disability discrimination

in the provision of public services.                         Wolsky, 1 F.3d at 224.

Rather, the closer state-law analog to such an ADA claim is

Maryland’s       more     general        statute       of     limitations,      requiring

plaintiffs to file civil actions “within three years from the

date it accrues unless another provision of the Code provides”

otherwise.        Md. Code Ann., Cts. & Jud. Proc. § 5-101; see A

Soc’y Without A Name, 655 F.3d at 347.

               In A Society Without A Name, Wolsky, and McCulloch, we

applied       state    statutes     of    limitations         to    federal    claims,   at

least    in    part,     because    the    relevant         state    laws   also   allowed

claims    for     the     same     type    of       discrimination      the    plaintiffs

alleged       pursuant    to     federal    law.        See    N.C.    Gen.    Stat.    Ann.

                                                6
§§ 168A-5(a) (prohibiting disability employment discrimination),

-11     (creating     “civil          action     to     enforce         rights       granted      or

protected      by     this       chapter”);          Va.     Code.       Ann.       §§     51.5-40,

(prohibiting        disability             discrimination         in    programs          receiving

state funding), –46 (creating cause of action to enforce “the

rights set forth in this chapter”).                           In stark contrast to the

broad       enforcement         mechanisms           these       statutes          include,       the

Maryland      Law    only        recognizes          causes       of    action       in    limited

circumstances.        See, e.g., Md. Code Ann., State Gov’t § 20–1035

(creating          cause         of         action         for         disability           housing

discrimination);           §     20-1013       (creating          cause       of     action       for

disability         employment          discrimination).                 And        although       the

Maryland Law allows claims based on local anti-discrimination

laws in Howard, Montgomery, and Prince George’s Counties, which

prohibit discrimination in public accommodations, see § 20–1202;

Md.,    Howard      Cty.       Code    §    12.210;     Md.,      Montgomery         Cty.     Code,

§§ 27-10, -11; Md., Prince George’s Cty. Code §§ 2–186, 2–220,

we    are   not    tasked       with       finding    the     closest        local       analog    to

federal law, but the closest state analog.                              See A Soc’y Without

A Name, 655 F.3d at 347.

              Further,         the     holding       below       was    an    outlier       in    the

District of Maryland, which has held time and again that ADA

claims       are    subject           to     Maryland’s          three-year         statute        of

limitations governing general civil actions.                                 See, e.g., Innes

                                                 7
v. Bd. of Regents of Univ. Sys. of Md., 29 F. Supp. 3d 566, 572

(D. Md. 2014); Schalk v. Associated Anesthesiology Practice, 316

F. Supp. 2d 244, 251 (D. Md. 2004); Ross v. Bd. of Educ. of

Prince George’s Cty., 195 F. Supp. 2d 730, 735 n.2 (D. Md.

2002); Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 634

(D. Md. 2002); Kohler v. Shenasky, 914 F. Supp. 1206, 1211 (D.

Md. 1995).         Although the District of Maryland decided most of

these cases before recent amendments to the Maryland Law that

created     a      cause     of     action             for    disability         employment

discrimination, see H.B. 54, 2009 Leg., 426th Sess. (Md. 2009)

(codified as amended at Md. Code Ann., State Gov’t § 20–1035),

and     expanded    protections        for        persons      with    disabilities      or

records of disability, see H.B. 393, 2009 Leg., 426th Leg., (Md.

2009)    (codified     as   amended     at        §§   20-601,      -603,    -606),    those

amendments did nothing to modify the rights and remedies of a

plaintiff in Appellant’s shoes who alleges discrimination in the

provision of public services.

            Thus, we hold that Appellant’s claim is subject to a

three-year statute of limitations.                      We need not decide whether

the   complaint       alleges     discrimination             occurring      as   Appellant

argues, “through [the end of] 2012,” or, as Appellee argues, no

later    than   the    summer     of   2012        when      Appellant      withdrew   from

school.     Because Appellant filed her complaint on October 30,

2014,    either     date    would      fall       within      the     three-year      filing

                                              8
period.   The district court thus erred by dismissing Appellant’s

claim as untimely.

                                  IV.

          For   the   foregoing   reasons,   we   reverse   the   district

court’s dismissal and remand for further proceedings.

                                                  REVERSED AND REMANDED




                                   9
TRAXLER, Circuit Judge:

       I    respectfully      dissent.       In    my       view   the     district      court

correctly applied a two-year limitations period to Semenova’s

ADA claim, and I would affirm the district court’s dismissal of

her complaint.

       Because Title II of the ADA 1 does not contain a statute of

limitations,         courts   “borrow    the      state      statute       of    limitations

that applies to the most analogous state-law claim.”                              A Society

Without a Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011).

The reason courts adopt the statute governing the most analogous

state-law cause of action is critical.                       The tradition “is based

on a congressional decision to defer to ‘the State’s judgment on

the    proper       balance   between     the     policies         of    repose        and   the

substantive policies of enforcement embodied in the state cause

of    action.’”         Hardin    v.    Straub,     490       U.S.      536,     538    (1989)

(quoting Wilson v. Garcia, 471 U.S. 261, 271 (1985)).

       In    my     view,   the   Maryland      legislature          has   expressed         its

judgment in very clear terms on the proper balance to be struck.

Maryland statutory law provides private causes of action for

many        types      of     discrimination            –     including          disability



       1  See Americans with Disabilities                            Act    of    1990,       as
amended, 42 U.S.C. §§ 12131-12165.




                                           10
discrimination.           In each case, the legislature has provided that

the statute of limitations is two years.                       Indeed, claims made

under several such Maryland statutes are closely analogous to

Title II claims.            See, e.g., Md. Code, State Gov’t §§ 20-705 –

20-707, 20-1035 (housing discrimination); Md. Code, State Gov’t

§§ 20-606, 20-1009, 20-1013 (employment discrimination).                             Most

analogous, in my view, however, are claims under § 20-1202 of

Maryland’s State Government Code.                   That statute provides for

private causes of action “for damages, injunctive relief, or

other civil relief” for violations of the anti-discrimination

laws of Howard, Montgomery, and Prince George’s Counties, each

of     which        prohibit    discrimination          –     including     disability

discrimination – in places of public accommodation, see Howard

Cty.       Code    § 12.210;    Mont.   Cty.     Code   §§ 27-10,      27-11;    Prince

George’s          Cty.   Code   §§ 2-186,      2-220.        The   decision     of   the

Maryland          legislature   that    a   two-year        statute   of   limitations

applies to such state-law actions leaves no doubt concerning

what balance the Maryland legislature would strike regarding the

appropriate limitations period for Title II actions. 2


       2  At oral argument, Semenova maintained that a cause of
action under § 20-1202 could not possibly be the most analogous
state-law cause of action because a § 20-1202 action must be
based on the violation of county discrimination law. But it is
hard to understand Semenova’s point.      Section 20-1202 is a
Maryland statute creating a Maryland cause of action aimed at
providing redress for victims of disability discrimination that
(Continued)
                                            11
     Semenova has not identified any difference between § 20-

1202 claims and Title II claims that that would give us any

reason     to     doubt       that    the        Maryland      legislature’s        judgment

regarding       the    proper      limitations         period   for      § 20-1202       claims

would    apply        just    as     well    to       Title    II   actions.         Indeed,

Semenova’s        only       argument       that      § 20-1202     is     not     the     most

analogous       cause    of    action       is    that   the    facts     alleged    in     her

complaint would not state a claim under § 20-1202, because the

discrimination she alleged did not occur in one of the three

counties     to       which     § 20-1202         applies. 3        But    this     argument

misunderstands the role that § 20-1202 plays in our analysis.

The similarity of a § 20-1202 cause of action to one brought

under Title II matters because of what it reveals about the

Maryland        legislature’s         judgment         concerning        the     balance    it

favored regarding considerations of repose; it has nothing to do




would not otherwise be available.   See Edwards Sys. Tech. v.
Corbin, 841 A.2d 845, 857-58 (Md. 2004) (regarding statutory
predecessor to § 20-1202).    And it was the Maryland state
legislature that decided that a two-year limitations period
would apply to such actions.   See Md. Code, State Gov’t § 20-
1202(c)(1).
     3    Maryland statutory law prohibits public-accommodations
disability discrimination throughout the state, see Md. Code,
State Gov’t § 20-304, but does not provide for a private right
of action for violation of this statewide ban.


                                                 12
with the question of whether Semenova herself could have brought

a § 20-1202 claim.

      Furthermore, regarding the determination of the appropriate

limitations      period,      it      is        unlikely     Congress         would    have

sanctioned a construction of the ADA under which the length of

the statute of limitations would depend upon “an analysis of the

particular    facts      of   each    claim,”       as     such   an    approach       would

“inevitably breed[] uncertainty and time-consuming litigation.”

Wilson, 471 U.S. at 272; see id. at 272-75.                             Rather, “[t]he

federal interests in uniformity, certainty, and the minimization

of    unnecessary     litigation       all        support     the      conclusion       that

Congress favored” a less fact-specific approach.                        Id. at 275.

      Semenova argues that despite the obvious close similarities

between   Title     II   claims      and    those    made    under      § 20-1202,      the

three-year statute governing general civil actions, § 5-101 of

the   Maryland    Courts      and    Judicial        Proceedings        Code,    actually

provides a closer analogue.                     But we rejected a very similar

argument in McCullough v. Branch Banking & Trust Co., 35 F.3d

127 (4th Cir. 1994).          In that case, the plaintiff brought suit

against his employer claiming that he was terminated because of

his handicap in violation of § 504 of the Rehabilitation Act.

See    McCullough,       35    F.3d        at     128.       Like       the     ADA,    the

Rehabilitation Act provides no statute of limitations; thus, we

were required to decide which state limitations period applied.

                                            13
See    id.    at    129.        The    employer      favored      the   180-day      period

applicable         to   claims      under     the     North      Carolina    Handicapped

Persons Protection Act (the “North Carolina Act”).                          See id.    The

plaintiff, on the other hand, preferred the three-year period

generally applicable to wrongful-discharge actions.                          See id. at

131.

       We agreed with the employer.                    See id. at 130-32.            In so

doing,   we     acknowledged          that,    for    several     reasons,     the    North

Carolina Act was by no means a perfect analogue:                         (1) the North

Carolina Act provides for a bench trial while the Rehabilitation

allows for jury trials; (2) while the Rehabilitation Act allows

for full compensatory and punitive damages, the North Carolina

Act    allows       only   injunctive         relief       and   back   pay;    (3)     the

Rehabilitation          Act,    unlike    the      North    Carolina    Act,    does    not

extend or base coverage upon receipt of state assistance; and

(4) the Rehabilitation Act, unlike the North Carolina Act, does

not require the employee to notify the employer of his or her

disability and to make accommodation suggestions and cooperate

in evaluating possible accommodations.                     See id. at 131.

       Nevertheless,           we   rejected    the    plaintiff’s       argument      that

these distinctions kept the North Carolina Act from being the

most closely analogous, explaining:

       [Plaintiff’s   identification  of   the   distinctions
       between the Rehabilitation Act and the North Carolina
       Act] begs the question of which North Carolina statute

                                              14
     is most analogous to the Rehabilitation Act. The
     differences between the North Carolina Act and the
     Rehabilitation Act identified by McCullough do not, by
     themselves, magically tip the balance of similarities
     so as to make the general wrongful discharge provision
     more analogous to the Rehabilitation Act than the
     specific provisions of the North Carolina Act.      It
     simply means that, in North Carolina, there is no
     perfect counterpart to the Rehabilitation Act, and we
     must determine which statute is more appropriate.

Id. at 132 (emphasis added).        In the end, we held that, despite

the differences the plaintiff had identified, the North Carolina

Act was a better fit than the general wrongful-discharge statute

because the North Carolina Act and the Rehabilitation Act both

“redress discrimination against the same very specific group of

persons,”   whereas     “the    general     wrongful   discharge    statute

protects against a wide range of discrimination which, although

including persons with disabilities, also encompasses many other

classes of individuals.”        Id.; see also Wolsky v. Medical Coll.

Of Hampton Roads, 1 F.3d 222, 225 (4th Cir. 1993) (“[The Supreme

Court]   acknowledged    that   minor    differences   between    state   and

federal statutes are acceptable and the most analogous statute

need not be identical.”).

     Similar   reasons    dictate    that    § 20-1202   claims    are    the

closest analogue to claims brought under Title II. 4               It seems



     4    We have borrowed statutes of limitation from state-law
anti-discrimination statutes in other cases brought under the
ADA and Rehabilitation Act.    See A Society Without a Name v.
Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (holding one-year
(Continued)
                                    15
fairly plain to me that a statute creating a private right of

action for illegal discrimination is a closer fit than a catch-

all statute governing all sorts of civil actions.                               And, the

difference Semenova identifies between causes of action under

§ 20-1202 and those under Title II of the ADA – that § 20-1202

applies      in     only        certain      subdivisions         of     the    relevant

jurisdiction – is much less significant from the standpoint of

applying the Maryland legislature’s limitations-period judgment

than    were       the       differences     we        considered      in   McCullough.

Notwithstanding the fact that § 20-1202 applies only to three

counties,         the        critical     fact     remains        that      victims     of

discrimination          in    those     counties    have    a   state-law       cause   of

action under § 20-1202 that closely resembles a Title II claim,

and    the   Maryland          legislature       has    decided     that    a   two-year

limitations period applies to such actions.                         I believe that is

the legislative judgment that should control here.




limitations period set forth in Virginia Rights of Persons with
Disabilities Act applies to Title II claims brought in
Virginia); Wolsky v. Medical Coll. Of Hampton Roads, 1 F.3d 222,
224-25 (4th Cir. 1993) (holding same limitations period applies
to Rehabilitation Act claims brought in Virginia).


                                             16
    For all of the foregoing reasons, I respectfully dissent. 5




    5     I would conclude, for the reasons explained in
McCullough, that the two-year statute of limitations is
consistent with the federal policies underlying the ADA.    See
McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th
Cir. 1994).   And I agree with the district court’s conclusion
that Semenova’s action is time-barred, assuming that a two-year
limitations period applies.


                               17
