Disabled in Action v. Southeastern Pennsylvania Transportation Authority

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 09-3964
_____________

DISABLED IN ACTION OF PENNSYLVANIA

v.

SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"),

Appellant

_____________

On Appeal from the District Court
for the Eastern District of Pennsylvania
(No. 2-03-cv-01577)
District Judge: Honorable Gene E. K. Pratter
___________

Argued October 4, 2010

Before: SCIRICA, FUENTES, and JORDAN, Circuit Judges

(Opinion Filed: February 16, 2011)

Jo Bennett (Argued)
Michael G. Tierce
Stevens & Lee
1818 Market Street, 29th Floor
Philadelphia, PA 19103-1702

Attorney for Appellant
Stephen F. Gold (Argued)
1709 Benjamin Franklin Pkwy, 2nd Floor
Philadelphia, PA 19103

Mark J. Murphy
Rocco J. Iacullo
Robin Resnick
Disability Rights Network of PA
1315 Walnut Street, Suite 500
Philadelphia, PA 19107-4705

Attorneys for Appellee

OPINION OF THE COURT

Fuentes, Circuit Judge:

Disabled in Action of Pennsylvania (“DIA”) has filed
suit claiming that the Southeastern Pennsylvania
Transportation Authority (“SEPTA”)’s failure to make certain
portions of its facilities accessible to individuals with
disabilities after undertaking construction work at those
facilities violated the Americans with Disabilities Act, 42
U.S.C. §§ 12101, et seq. (“ADA”), and the Rehabilitation
Act, 29 U.S.C. § 794, et seq. (“RA”). On appeal from the
District Court’s grant of summary judgment in favor of DIA,
SEPTA argues that certain regulations issued by the
Department of Transportation (“DOT”) implementing the
ADA establish that it was not required to make those portions
of its facilities handicapped-accessible. For the reasons given
below, we affirm.

I.

A. Background

The facts of this case are fairly straightforward.
Appellant SEPTA, an agency and instrumentality of the
Commonwealth of Pennsylvania, provides public
transportation, including train, subway, trolley, and
2
paratransit services in five counties of Pennsylvania. The
dispute in this case concerns two separate SEPTA
construction projects that involved a total of three of its
stations in Philadelphia.

The first of these stations, the 15th and Market Street
subway station, serves the Market-Frankford Elevated
Subway Line. This station is not accessible to individuals
with disabilities. It is connected with the second station in
question, Suburban Station, via the extensive underground
Penn Center Concourse, which is lined with shops and
offices. Suburban Station is a regional rail station.1 On the
concourse level connecting Suburban Station and 15th Street
Station, at approximately 15th Street and Market, is a
courtyard (“the 15th Street Courtyard”). Through
underground travel, it is possible to reach either Suburban
Station or 15th and Market Street Station from the 15th Street
Courtyard.2

In February 2001, as part of a larger renovation
project, SEPTA received a permit from the City of
Philadelphia (the “City”) to begin replacement of the only
stairway in the 15th Street Courtyard. The stairs, which had
become unusable, were demolished and replaced, but no
modifications were made to any load-bearing structure of the
15th Street Courtyard. The work was concluded in August
2002. This project had a budget of approximately $1.5
million dollars; SEPTA’s expert estimated that the cost of
installing an elevator in addition to the stairs would have
made the project $810,000 more expensive. SEPTA has not

1
“The SEPTA Regional Rail Division provides commuter
rail service on thirteen branches to over 150 active stations in
Philadelphia, Pennsylvania and its suburbs.” Wikipedia,
SEPTA Regional Rail,
http://en.wikipedia.org/wiki/SEPTA_Regional_Rail (last
visited November 8, 2010).
2
The parties dispute whether the 15th Street Courtyard is
an entrance to the 15th and Market Street Station or to
Suburban Station. The District Court did not resolve this
issue, and we do not find it necessary to resolve it in order to
determine this case.

3
contended that it would be technically infeasible to install an
elevator at that site.

Suburban Station is a “key station” in the SEPTA
system and is therefore subject to special accessibility
requirements under the ADA. In 2005, as part of its efforts to
comply with those accessibility requirements, SEPTA
installed two elevators in Suburban Station. The entrance to
one of these elevators is on street level at 16th Street between
Market Street and JFK Blvd., making it theoretically possible
for a person using a wheelchair to descend there to the Penn
Center Concourse and travel underground to the 15th Street
Courtyard. Otherwise, the 15th Street Courtyard is
inaccessible to individuals using wheelchairs.

The third station in question, City Hall Subway
Station, is located at Broad Street and Market Street and
serves the Broad Street Subway Line.3 It, too, is inaccessible
to those in wheelchairs. Before 2002, there was an
inoperative escalator leading from a courtyard at the
concourse level of City Hall Subway Station to street level in
the southeast corner of Philadelphia City Hall Courtyard (the
“City Hall Courtyard”).

In June 2001, SEPTA undertook extensive repairs to
the inoperative escalator at City Hall Courtyard by, among
other things, replacing the internal mechanisms within the
escalator’s wheelwell. Again, no modifications were made to
any load-bearing structures. The repairs at City Hall
Courtyard cost approximately $1.2 million; SEPTA estimates
that the cost of installing an elevator there would raise the
total cost to $3.2 million. However, SEPTA has not claimed
that it would be technically infeasible to install an elevator
there, so long as it had sufficient access to the property.4

3
City Hall Subway Station is not connected to either
Suburban Station or the 15th Street Station.
4
City Hall Courtyard is owned by the City of
Philadelphia, not SEPTA.

4
B. The District Court’s Decision

Appellee DIA is a nonprofit group which advocates for
the civil rights of persons with disabilities. It filed a lawsuit
against SEPTA in March 2003 alleging that SEPTA had
violated both Title II of the ADA and the Rehabilitation Act5
by failing to make the 15th Street Courtyard accessible to
those with disabilities after replacing the stairway at that
location. SEPTA moved to dismiss, arguing that the City was
a required party to the litigation because the City owns the
15th Street Courtyard. That motion was granted as
unopposed, but the Court subsequently vacated its order and
DIA amended its complaint to add the City as a defendant. In
October 2003, DIA filed a second amended complaint. DIA
amended its complaint a third time in January 2004, adding
an allegation that SEPTA was required to make City Hall
Station accessible because that station constituted a “key
station” as defined by the ADA and relevant regulations.

In August 2004, DIA and the City reached a settlement
in which the City agreed to permit SEPTA to use the City’s
property to install an elevator at the 15th Street Courtyard.6
In order to resolve DIA’s claim that City Hall Station was a
key station required to be made handicapped accessible, the
City indicated that it would “give permission … for SEPTA
to [] construct the City Hall Station renovation project which
has been discussed by SEPTA and the Plaintiffs in conceptual
form for years.” It appears that the “renovation project”
referenced by the settlement pertains to the construction of an
elevator at Dilworth Plaza, which is a different location than

5
The analysis below applies to both the ADA and the RA
claims. “In light of the similarities between ... the ADA and
RA and their implementing regulations, we construe and
apply them in a consistent manner.” Pennsylvania Prot. and
Advocacy, Inc. v Pennsylvania Dep’t of Pub. Welfare, 402
F.3d 374, 379 n.3 (3d Cir. 2005).
6
SEPTA was not a party to the settlement reached
between DIA and the City.

5
the City Hall Courtyard.7 The District Court dismissed the
City from the action in light of the settlement.

DIA’s fourth and final complaint was filed on
February 15, 2005. The fourth amended complaint, which
named only SEPTA as a defendant, asserted two claims.
Count I contended that SEPTA violated the ADA and RA by
making “alterations” to the 15th Street Courtyard and the City
Hall Courtyard without also making the affected portions of
the facilities accessible to individuals with disabilities. That
was the first time in the litigation that DIA alleged that the
extensive work conducted on the escalator at City Hall
Courtyard constituted an “alteration” within the meaning of
the ADA. Count II alleged that SEPTA had violated the
ADA and RA by failing to make 15th Street Station and City
Hall Station, both allegedly “key stations” within the meaning
of the ADA and RA, handicapped accessible. DIA sought
relief in the form of, among other things, an injunction
requiring SEPTA “to begin construction immediately of
elevators [] at the [15th Street Courtyard Entrance] to the
Market-Frankford ... Line and at the City Hall Station
Courtyard’s Northwest and Southeast entrances to the Broad
Street Subway Line to assure access for persons with
disabilities, including persons who use wheelchairs ... .”

DIA and SEPTA later moved for summary judgment
against each other. In November 2006, the District Court
granted summary judgment in favor of SEPTA, holding that
DIA’s claims were time-barred. On appeal, we reversed the
District Court’s decision and remanded the case for further
proceedings. See Disabled in Action of Pennsylvania v.
Southeastern Pennsylvania Transp. Auth., 539 F.3d 199 (3d
Cir. 2008). After remand, both parties again moved for
summary judgment on the remaining claims. The District
Court granted summary judgment in favor of DIA, finding
that SEPTA’s work at both the 15th Street Courtyard and City
Hall Courtyard constituted “alterations” which triggered
requirements under the ADA and the Rehabilitation Act to
make both locations “readily accessible to” individuals with
disabilities.

7
Elevators at Dilworth Plaza would provide those with
disabilities access to City Hall Station via the concourse level.

6
 SEPTA has now appealed the District Court’s
decision.

II.

“We exercise plenary review over a district court’s
summary judgment ruling.” Melrose, Inc. v. City of
Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2009). “Summary
judgment is appropriate only where, drawing all reasonable
inferences in favor of the nonmoving party, there is no
genuine issue as to any material fact and ... the moving party
is entitled to judgment as a matter of law.” Id. (citing Ruehl
v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)).

The ADA “provide[s] a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(a) (2010).
In enacting the law, Congress found that “discrimination
against individuals with disabilities continue[s] to be a serious
and pervasive problem” in American society and therefore
sought to “assure equality of opportunity, full participation,
independent living, and economic self-sufficiency” for
individuals with disabilities. Id. § 12101(a)(2), (7). In
particular, one of the ADA’s aims is the elimination of
“architectural [and] transportation ... barriers” to full
participation in society by individuals with disabilities by,
among other things, mandating the improvement of access to
public transit. Id. § 12101(a)(5). Therefore, although it does
not generally mandate that existing public transit facilities be
made accessible, the ADA does impose specific requirements
on public entities which build new facilities or make
“alterations” to existing facilities.

“With respect to alterations of an existing facility or
part thereof used in [public transit] that affect ... the usability
of the facility or part thereof,” the ADA provides that it is
discriminatory for a public entity to “fail to make such
alterations ... in such a manner that, to the maximum extent
feasible, the altered portions of the facility are readily
accessible to” individuals with disabilities. 42 U.S.C. §
12147(a) (2010) (emphases added). “Thus, while Congress
chose not to mandate full accessibility to existing facilities, it
required that subsequent changes to a facility be undertaken
in a non-discriminatory manner.” Kinney v. Yerusalim, 9
7
F.3d 1067, 1073 (3d Cir. 1993). In other words, if a public
entity chooses to make changes rising to the level of
“alterations” to a facility, it ordinarily must use that
opportunity to make the altered part of the facility accessible,
as well.

In order to resolve this case, we must consider in turn
the meaning of the phrases “alterations,” “the maximum
extent feasible,” and “readily accessible” and then their
application to the SEPTA projects at issue.

A. “Alterations”

Section 12147(a) of title 42 does not define the terms
“alterations” or “the maximum extent feasible.” However,
the DOT has issued regulations that provide additional
guidance as to their meaning. The implementing regulations
set forth in 49 C.F.R. § 37.43(a)(1) echo the requirements of
42 U.S.C. § 12147(a). The regulations define “alterations” to
mean

a change to an existing facility, including, but
not limited to, remodeling, renovation,
rehabilitation, reconstruction, historic
restoration, changes or rearrangement in
structural parts or elements, and changes or
rearrangement in the plan configuration of walls
... [but not] [n]ormal maintenance, reroofing,
painting or wallpapering, asbestos removal, or
changes to mechanical or electrical systems ...
unless they affect the usability of the building or
facility.

49 C.F.R. § 37.3. Therefore, “an ‘alteration’ within the
meaning of the regulations is a change that affects the
usability of the facility involved.” Kinney, 9 F.3d at 1072.
“Usability” in this context has “an expansive, remedial
construction” and “should be broadly defined to include
renovations which affect the use of a facility, and not simply
changes which relate directly to access.” Id. at 1072-73
(internal citations and quotations marks omitted). SEPTA
argued in the District Court that the replacement of the
stairway at the 15th Street Courtyard and the elevator repair
work at the City Hall Courtyard were not alterations, but

8
rather final acts of maintenance. As the District Court noted,
however, replacing an unusable stairway with a usable one
and extensively changing an inoperative escalator so that it
operates again surely affects the “usability” of the locations
they service. The complete replacement of a stairway or total
overhaul of an escalator should also be considered
“remodeling, renovation, rehabilitation [or] reconstruction” in
the ordinary sense of those words.

SEPTA has now abandoned the “final act of
maintenance” argument and instead points to certain
Americans with Disabilities Act Accessibility Guidelines
(“ADAAG”) standards incorporated into the DOT
regulations, which it contends further limit the types of
construction which are “alterations” under the ADA. 8 It
claims that the District Court did not give appropriate
deference to these regulations, as mandated by Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). In particular, SEPTA relies on an ADAAG
provision which reads:

If an escalator or stair is planned or installed
where none existed previously and major
structural modifications are necessary for such
installation, then a means of accessible vertical
access shall be provided that complies with the
applicable provisions.

ADAAG § 4.1.6(1)(f). SEPTA argues that this indicates that
“alterations,” at least with respect to stairs, includes only
changes that involve “major structural modifications.” As it
did not undertake “major structural modifications” of either
the 15th Street or the City Hall Courtyards, it contends, it is
not required to install an elevator in either location.

We assume, and DIA does not dispute, that the DOT
regulations should be given Chevron deference in this case.
However, the courts owe no deference to SEPTA’s own
interpretation of these regulations, and, as the District Court
concluded, SEPTA’s interpretation is too narrow. The ADA

8
The relevant ADAAG standards are the 1991 version,
codified at 49 C.F.R. Pt. 37, App. A.

9
is a remedial statute, meant to bring an end to discrimination
against individuals with disabilities in all aspects of American
life; it must be construed with all the liberality necessary to
achieve such purposes. In our view, the construction carried
out by SEPTA in both the 15th Street Courtyard and the City
Hall Courtyard constituted “alterations” under the ADA, even
without “major structural alterations.” Although ADAAG §
4.1.6(1)(f) addresses one scenario in which an accessible
means of vertical access must be provided, it does not clearly
indicate that this is the only scenario in which such access
must be provided.

SEPTA’s reading is at odds with the otherwise broad
accessibility mandate of 42 U.S.C. § 12147(a) and 49 C.F.R.
§ 37.43 and the expansive definition of “usability” adopted by
this Circuit. In Kinney, we held that even the resurfacing of a
road through the laying down of a new layer of asphalt was
an “alteration” sufficient to require that the road be made
accessible through curb cuts, 9 F.3d at 1073-74; it cannot be
that the much more substantial change of a complete
replacement of a set of stairs or an escalator is not an
“alteration” unless it is accompanied by major structural
modifications.

The DOT regulations confirm this conclusion.
SEPTA must “mee[t] the requirements of [49 C.F.R. § 37]
and the requirements set forth in [the ADAAG].” 49 C.F.R. §
37.9(a) (emphasis added). This language indicates that public
entities must fulfill both § 37 and the ADAAG requirements.
The DOT did not envisage the ADAAG by themselves to be
an exhaustive statement of regulatory requirements, but rather
to be a supplement to the requirements imposed by § 37.
Meeting the requirements of Section 4.1.6(1)(f) is not, then,
necessarily sufficient to meet the requirements of § 37, and it
would be illogical to read Section 4.1.6(1)(f) of the ADAAG
to radically curtail the broad mandate of § 37.

Given that the ADA is to be liberally construed to
effectuate its purpose of eliminating discrimination, we will
not adopt SEPTA’s narrow interpretation of “alterations.” In
our view, the construction carried out by SEPTA in both the
15th Street Courtyard and the City Hall Courtyard constituted

10
“alterations” under the ADA, even though it did not entail
“major structural alterations.”

B. “Maximum extent feasible”

The parties also differ over the meaning of the phrase
“maximum extent feasible.” Again, this term is defined in the
relevant DOT regulations: “the phrase [‘]to the maximum
extent feasible[’] applies to the occasional case where the
nature of an existing facility makes it impossible to comply
fully with applicable accessibility standards ... .” 49 C.F.R. §
37.43(b). DIA argues that “feasible” refers only to technical
feasibility, relying on this definition’s lack of explicit
reference to costs. SEPTA, in turn, argues that “feasible”
must refer to economic feasibility, as well.9

We have never addressed the meaning of “maximum
extent feasible” under the ADA as applied to alterations in
public transit facilities. SEPTA’s position that “maximum
extent feasible” must refer to economic as well as technical
feasibility might be plausible if that language stood alone.
However, the narrowness of the exception established in 49
C.F.R. § 37.43(b), which contemplates that the infeasibility of
making the altered portion of a facility will be only
“occasional” and will arise from “the nature of an existing
facility”—not from the budget limitations of a transportation
authority, which must be reckoned with at all times—weighs
in favor of DIA’s interpretation.

In addition, both 42 U.S.C. § 12147(a) and 49 C.F.R. §
37.43 do contain provisions for the consideration of cost in
making public transit facilities accessible, but only in
different sections establishing requirements for certain
additional changes (e.g., to the bathrooms and drinking
fountains) that must be made “to the maximum extent

9
Although SEPTA has provided information that the costs
of installing elevators at the two courtyards might be
disproportionate to the cost of the rest of the construction
projects there, it has not actually argued before us that the
installation of the elevators was truly economically infeasible,
nor has it explained how the Court would make such a
determination.

11
feasible” if an area that serves a “primary function” is altered.
The costs for those additional changes should not be
“disproportionate.” See 42 U.S.C. § 12147(a); 49 C.F.R. §
37.43(a)(2). The sections addressing “alterations” in general
contain no such language. The omission of any reference to
costs there, when they are mentioned in closely-related
sections, indicates that the ADA and the DOT regulations
define feasibility primarily with respect to technical, not
purely economic, concerns.10

The Second Circuit recently reached the same
conclusion with respect to identical language in Title III of
the ADA and the relevant federal regulations (specifically, 42
U.S.C. § 12183 and 28 C.F.R. § 36.402(c)). Focusing on the
language of the statute, it held that the ADA’s “‘maximum
extent feasible’ requirement does not ask the court to make a
judgment involving costs and benefits ... . The statute and
regulations require that such facilities be made accessible
even if the cost of doing so—financial or otherwise—is
high.” Roberts v. Royal Atlantic Corp., 542 F.3d 363, 371
(2d Cir. 2008). The reasoning of Roberts is sound and
applicable in the Title II context as well.

SEPTA also makes a more specific argument
concerning the meaning of “maximum extent feasible” which
relies on the interpretive appendix to 49 C.F.R. § 37.
Appendix D states:

10
Technical infeasibility will likely, in practice, often
overlap with particularly excessive costs; that is, the more
technically difficult an alteration, the more expensive it is
likely to be. But the ADA does contemplate that, in general,
if a public entity cannot afford to make alterations to a public
transit facility that include making the altered portions
accessible, it should not make alterations at all. “Congress
felt that it was discriminatory to the disabled to enhance or
improve an existing facility without making it fully accessible
to those previously excluded.” Kinney, 9 F.3d at 1073.
Although this is a demanding requirement, it is consistent
with the ADA’s nature as a far-reaching anti-discrimination
statute.

12
 The term ‘to the maximum extent feasible’
should be construed as not requiring entities to
make building alterations that have little
likelihood of being accomplished without
removing or altering a load-bearing structural
member unless the load-bearing structural
member is otherwise being removed or altered
as part of the alteration.

49 C.F.R. Pt. 37 App. D. SEPTA interprets this as a
limitation designed to prevent excessive expenditures on
accessibility measures. It notes that it did not remove or alter
any load-bearing structural members in the course of its work
in either the 15th Street Courtyard or the City Hall Courtyard.
Therefore, it argues, it was not “feasible” to install elevators
in either location.

This reading, too, is unpersuasive. The regulations
provide that a public entity need not make altered portions of
a facility readily accessible if doing so would require
removing or altering a load-bearing structural member (unless
the movement or alteration is called for by the alterations
anyway). They do not state, as SEPTA argues, the converse:
that the altered portions of a facility only need be made
accessible if the alterations in question involve the drastic
change of moving or altering a load-bearing member. And as
SEPTA has not taken the position that installing an elevator
in either location would require the removal or alteration of a
load-bearing member, this provision of Appendix D does not
apply on the present record.

Therefore, SEPTA may not refuse to install elevators
at the 15th Street Courtyard and the City Hall Courtyard
solely because to do so would, allegedly, force SEPTA to
incur significant costs.

C. “Readily accessible”

The parties also dispute the meaning of “readily
accessible.” SEPTA argues that the 15th Street Courtyard is a
part of Suburban Station, not of 15th Street Station, and thus,
since the 15th Street Courtyard may be reached from street
level by individuals in wheelchairs via one of the Suburban

13
Station elevators, it is already “readily accessible.”11 DIA
argues that the 15th Street Courtyard is actually a part of 15th
Street Station, and since the facility which it is a part of is not
wheelchair-accessible, neither is the Courtyard. In addition,
DIA argues that, even if the 15th Street Courtyard is part of
Suburban Station, it is still not “readily accessible” via
Suburban Station.

The District Court did not make a finding as to which
station the 15th Street Courtyard is a part of.12 Like the
District Court, we need not address the question of which
facility the 15th Street Courtyard belongs to because, either
way, SEPTA must make it accessible.

If we consider the 15th Street Courtyard Entrance to be
part of Suburban Station, as SEPTA contends, it is still not
“readily accessible.” Pursuant to ADAAG § 10.1, all
transportation facilities must comply with the applicable
provisions of §§ 4.1 through 4.35, §§ 5 through 9, and the
applicable provisions of § 10 of the ADAAG. Through a
circuitous regulatory route,13 the “new construction”

11
SEPTA does not argue that City Hall Courtyard is
“readily accessible,” and so there is no need to engage in this
analysis for that Courtyard.
12
On the first appeal, we noted that the 15th Street
Courtyard “undisputedly provides access to” the 15th Street
Station, and assumed that it was an entrance to that station.
Disabled in Action, 539 F.3d at 202 n.1.
13
Section 10.1 of the ADAAG states that “[e]very station
… shall comply with the applicable provisions of 4.1 through
4.35 … .” Section 4.1.6(1)(b) mandates that “if existing
elements, spaces, or common areas are altered, then each such
altered element, space, feature, or area shall comply with the
applicable provisions of 4.1.1 to 4.1.3 Minimum
Requirements (for New Construction).” Section 4.1.3(8) lays
out requirements for the number of accessible entrances but
those requirements are, in turn, modified by § 10.3.1, which
says that, “[i]n lieu of compliance with 4.1.3(8), at least one
entrance to each station shall comply with 4.14 [and be made
accessible].” ADAAG § 10.3.1(2).

14
provisions for transportation facilities, found at ADAAG §
10.3.1, permit a public transportation provider to avoid
making an altered entrance accessible if at least one entrance
to the affected station is already accessible. ADAAG §
10.3.1(2). However, “[i]f different entrances to a station
serve different transportation fixed routes or groups of fixed
routes, at least one entrance serving each group or route shall
[be made accessible].” Id. Here, there is no accessible
entrance that serves the 15th Street Station or the Market-
Frankford subway line—a different route than those serviced
by Suburban Station, which serves commuter rail lines. Thus,
even assuming that the 15th Street Courtyard Entrance is a
part of Suburban Station, it nevertheless provides access to a
different fixed route and therefore must be made accessible.
If, on the other hand, the entrance at issue is a part of 15th
Street Station, the alterations performed by SEPTA require
that the entrance be made readily accessible since it is
undisputed that 15th Street Station is not handicapped
accessible.14

Because neither the 15th Street Courtyard or the City
Hall Courtyard is “readily accessible,” SEPTA violated Title
II of the ADA and the RA by not making those portions of its
facilities accessible when it undertook to make alterations at
those locations.

14
SEPTA does not deny that the 15th Street Station is not
“readily accessible.” Instead, SEPTA argues that “[e]ven if
an elevator were installed at the 15th Street [Courtyard
Entrance], a person in a wheelchair could not access 15th
Street Subway Station” because there is no wheelchair access
from the concourse to the subway platform. (BB at 38.)
While SEPTA’s assertion is correct, the District Court already
aptly addressed this issue, finding that the ADA is an
“incremental statute.” (App. at 26.) According to the District
Court, “[g]iven that eventually SEPTA will alter the stairway
to the platform, triggering a requirement of additional
accessibility, at that point, wheelchair-bound individuals will
have an accessible exit waiting for them at the mezzanine
level.” (Id. at 22-23.) Otherwise, to excuse public entities
from complying with the accessibility requirements simply
because they altered only a portion of a facility would
undermine the intent of the ADA.

15
D. The City as necessary party

Finally, SEPTA argues that, because it cannot install
an elevator at City Hall Courtyard without the agreement of
the City, the City is a necessary party to this suit. We may
consider this issue despite its not being raised in the District
Court, and we conclude that the City is not a necessary party.
Finberg v. Sullivan, 634 F.2d 50, 55 (3d Cir. 1980). Under
the Federal Rules, a party is “necessary” if, in its absence, (1)
the court could not accord complete relief among the existing
parties; or (2) the absent party claims an interest relating to
the subject matter of the action so that disposing of the action
in his absence would (i) impair its ability to adequately
protect its interest, or (ii) leave an existing party susceptible
to a substantial risk of incurring inconsistent obligations. Fed.
R. Civ. P. 19(a). SEPTA bears the burden of showing why an
absent party should be joined under Rule 19. Pittsburgh
Logistics Sys., Inc. v. C.R. Eng., Inc., 669 F. Supp. 2d 613,
618 (W.D. Pa. 2009). DIA claims SEPTA’s failure to assert
this defense at an earlier stage of the proceedings renders it
unfit for consideration on appeal. See Fed. R. Civ. P. 12(b)(7)
(“Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required.”).
SEPTA acknowledges its failure to include this defense in
any prior motion but nevertheless urges us to conduct an
independent analysis.

While the law permits us to indulge SEPTA’s
overtures and consider this Rule 19 issue for the first time on
appeal, the parties’ lengthy history of silence on this issue
weighs against adopting SEPTA’s position. We have written
that Supreme Court jurisprudence compels us to “take steps to
protect an absent party through consideration of the Rule
19 issue, even when that issue was not presented to the
district court nor raised by the parties to the appeal.” GTE
Sylvania, Inc. v. Consumer Product Safety Comm’n, 598 F.2d
790, 798 (3d Cir. 1979). However, the opinion from which
we gleaned this obligation evinced genuine concern only for
protecting an absent party “who of course had no opportunity
to plead and prove his interest below.” Provident Tradesmen
Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968).

16
 SEPTA argues that upholding the grant of summary
judgment will, as a practical matter, impair the City's ability
to protect its interest in City Hall Courtyard. See Fed. R. Civ.
P. 19(a)(1)(B)(i). However, though the City was a defendant
in this case and was aware that it implicated access by
individuals with disabilities to the City Hall Courtyard, it
chose to settle with DIA. Although it surely must be aware of
DIA’s current position with respect to the necessity of an
elevator in City Hall Courtyard, it has not moved to intervene,
nor offered any other objections which we are aware of. That
neither the City nor SEPTA saw fit to raise this issue at an
earlier stage of the proceedings militates against a finding that
the City’s ability to protect its interest would be impaired
were it not joined as a party. The City’s normal procedures in
dealing with SEPTA construction projects that impinge upon
City property, such as the process of submitting plans and
obtaining required work permits, should be sufficient to
protect its interests here.

SEPTA also contends that any relief granted by the
court to DIA would be “hollow” in the absence of the City’s
joinder, see Gen. Refractories Co. v. First State Ins. Co., 500
F.3d 306, 315 (3d Cir. 2007). Yet it does not actually claim
that the City would refuse to permit construction at City Hall
Courtyard, merely that the City’s ownership “would
legitimately affect SEPTA’s ability to fulfill its obligations
under the order.” Although this is very likely true, it would
not render a judgment in favor of DIA “hollow”; it simply
means that SEPTA will have to work with the City in
complying with our decision, something the City has already
agreed to do with respect to the 15th Street Courtyard.

III.

For the foregoing reasons, we will affirm the District
Court=s grant of summary judgment in DIA’s favor.

17
Disabled in Action of Pennsylvania v. Southeastern
Pennsylvania Transportation Authority, No. 09-3964

JORDAN, Circuit Judge, concurring in part and dissenting in
part

I am fully in agreement with the majority’s analysis of
the obligations SEPTA has incurred under the ADA and
associated regulations by making alterations at the 15th Street
Courtyard,1 and, based on the precedential effect of those
conclusions, I am strongly inclined to believe that they will
compel the further conclusion that SEPTA bears the same
obligations with regard to the City Hall Courtyard. I cannot
join Section II.D of the opinion, however, because I believe
that the City must first be made a party to this action under
Federal Rule of Civil Procedure 19 before a decision
regarding the City’s property can rightly be made.

While SEPTA is free to begin installing an elevator at
the 15th Street Courtyard, it is not free to do so at the City
Hall Courtyard, which is owned by the City. As the Majority
notes, SEPTA acknowledges the feasibility of installing an
elevator at the City Hall Courtyard, but it does so only “so

1
Although the Majority’s analysis is confined to the ADA,
it concludes that the same result is required by the
Rehabilitation Act (“RA”). Given the close relationship
between those two statutory schemes, see McDonald v. Com.
of Pa., Dep’t of Public Welfare, 62 F.3d 92, 95 (3d Cir. 1995)
(“Whether suit is filed under the Rehabilitation Act or under
the Disabilities Act, the substantive standards for determining
liability are the same.”), I do not doubt that is so, but it is not
necessary to assume or decide that here.

1
long as it [has] sufficient access to the property.” (Maj. Op.
at 4.) Access to the property is essential and, to be properly
granted by a court order, such access must be preceded by the
City’s having a seat at the litigation table. This seems self-
evident. Ordering the construction of an elevator calls for a
“permanent physical invasion” of the City’s property and
“eviscerates the owner’s right to exclude others from entering
and using [the] property – perhaps the most fundamental of
all property interests.” Lingle v. Chevron U.S.A. Inc., 544
U.S. 528, 539 (2005). I have searched in vain for an example
of a court ordering such an invasion without the property
owner being joined in the case.

Nevertheless, DIA argues, and the Majority accepts,
that the District Court can afford DIA complete relief at the
City Hall Courtyard, even though doing so would require
SEPTA to initiate construction on the City’s land. DIA
implicitly acknowledges in its brief that the City might object
to bulldozers and backhoes showing up on its property, but it
suggests that, if the City were to bar SEPTA from making the
required alterations, SEPTA could “assert a defense of
impossibility to an effort by DIA to enforce the Court’s
ruling.” (Answering Brief of Appellee at 48 n.18.) However,
the very fact that the Court’s ruling could result in such an
“impossibility” is why the City is, by the terms of Rule 19, a
“required party” in this lawsuit. See FED. R. CIV. P. 19(a)(1)
(“A person … must be joined as a party if … in that person’s
absence, the court cannot accord complete relief among
existing parties … .”).2

2
Being a “required party” under Rule 19 is contingent
upon the party being “subject to service of process” and being
a party “whose joinder will not deprive the court of subject-

2
 Shifting its tack, DIA, with the Majority in tow,
breezes past the City’s fundamental interest in this dispute by
asserting that the City is aware of the proposal to install an
elevator at the City Hall Courtyard and has no objection to it.
That may well be true; indeed one hopes that the City would
be eager to assist in every way possible the remedying of
inaccessibility problems on its property. But we are
accustomed to having property owners declare their own
interests and intentions rather than having others volunteer
their land for construction projects. That is why Rule 19,
again by its exact terms, requires the joinder of someone who,
as a practical matter, would have his ability to protect his
interests impeded or impaired if not made a party. FED. R.
CIV. P. 19(a)(1)(B)(i). Making the point more powerfully, the
Rule goes on to say that “[i]f a person has not been joined as
required, the court must order that the person be made a
party.” FED. R. CIV. P. 19(a)(2) (emphasis added). It does
not say, “add that person if convenient or if you don’t already
know what the person really wants.” It says,
straightforwardly, that “the court must order that the person
be made a party.”

In trying to understand what may be motivating the
willingness to brush aside the City’s obvious interest in a
construction project on City land, I am left to conclude that
there is a concern over further delay in SEPTA’s beginning
the already long-delayed start of installing necessary
accommodations, and perhaps there is some concern that

matter jurisdiction,” conditions which the City satisfies. FED.
R. CIV. P. 19(a)(1).

3
SEPTA raised the issue late as a yet another strategic move
for procrastination. Even if those concerns are well-founded,
however, they do not dispose of the City’s rights. “A person
may be added as a party at any stage of the action on motion
or on the court’s initiative … and a motion to dismiss, on the
ground that a person has not been joined and justice requires
that the action should not proceed in his absence, may be
made as late as the trial on the merits … .” Advisory
Committee’s Notes on FED. R. CIV. P. 19, 28 U.S.C.App., p.
134.

Nor can the City’s interests be casually dismissed by
saying, as the Majority does, that, “[a]lthough [the City]
surely must be aware of DIA’s current position with respect
to the necessity of an elevator in City Hall Courtyard, it has
not moved to intervene, nor offered any objections which we
are aware of.” (Maj. Op. at 17.) That statement implies,
without record support, that the City somehow waived its
rights to protect its property interests in court. The City was
added as a party to this case in 2003 and settled with DIA in
2004. If anything, that history demonstrates that the City left
the case only when it understood that its rights were no longer
implicated. It does not demonstrate that the City should have
known that its rights would be implicated once again. 3

3
In its settlement agreement with DIA, the City
acquiesced to construction of an elevator at the 15th Street
Courtyard and agreed to permit construction of an elevator at
Dilworth Plaza to service City Hall Station, as had “been
discussed by SEPTA and the Plaintiffs in conceptual form for
years.” (App. at 89-90.) But Dilworth Plaza is not the City
Hall Courtyard, the location where DIA currently seeks to
have an elevator installed to service City Hall Station. While

4
 It is, moreover, somewhat ironic to observe that we are
unaware of the City having any objection to plans for its land,
since an important reason why a district court must join
required parties is so that such parties have the opportunity to
voice objections. See Luxliner P.L. Export, Co. v.
RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993) (“Before a
party may be deprived of a property interest, due process
requires, at a minimum, notice and an opportunity to be
heard.”). We approach the problem from the wrong direction
when our first reaction is to say to a property owner, in effect,
“you failed to intervene at the peril of your rights,” rather
than saying to the litigants, “you failed to add a required party
at the peril of lengthening these proceedings while that
party’s rights are considered.”

DIA maintains, and the Majority agrees, that the City’s
normal procedures in dealing with construction projects, such
as requiring work permits, should be sufficient to protect its
interests here. Once again, though, this seems a painful
stretch to avoid dealing with the reality that the City is a
required party. The City’s permitting procedures do not
provide it with a voice in the District Court by which it can
object to orders directly affecting its interest in its own land.

the City and SEPTA have engaged in discussions regarding
compliance with the District Court’s order, the record does
not reflect that any agreement was reached on the precise
location for the installation of elevators at the City Hall
Courtyard. Indeed, the Statement of Compliance that SEPTA
filed with the District Court says that the “City prefers
installation of elevators at locations other than those directed
by the Court.” (App. at 1163.)

5
The permitting process is, as far as I know (and this is not an
issue that has been briefed), designed simply to ensure that
construction in the City is completed in accordance with
applicable sections of the Philadelphia Code, e.g., the City’s
building code, fire code, and electrical code. Those
procedures do not afford the City the opportunity to address
to the District Court any concerns it may have about where,
when, or how an elevator will be installed on City property.

In any event, concern about significant delay is
ultimately a matter of pure speculation, and an oddly
contradictory bit of speculation at that. If, as DIA and the
Majority assume, the City has no problem at all with the
construction of the elevator on City land, then adding the City
as a party should involve little or no delay at all, even as it
preserves the principles of due process that are inherent in
Rule 19 and which long antedate the Rules of Civil
Procedure. Cf. Torrence v. Shedd, 144 U.S. 527, 532 (1892)
(holding that, in a case involving interests in real property,
since recovery required establishing a title that would affect
other interested parties, those parties had to be joined). And
if, for some reason, the City were to raise objections, the able
District Court can require that those objections be dealt with
on an expedited basis, as may be appropriate.

I therefore concur in the opinion of the Majority that
the construction of the elevator at the 15th Street Courtyard is
called for by operative federal law, but I would order the
joinder of the City so that it can adequately voice its position
on how that conclusion should affect its property interests in
the City Hall Courtyard.

6