Frame v. City of Arlington

Case: 08-10630 Document: 00511603419 Page: 1 Date Filed: 09/15/2011

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

FILED
September 15, 2011
No. 08-10630
Lyle W. Cayce
Clerk
RICHARD FRAME; WENDELL DECKER; SCOTT UPDIKE; J N, a minor, by
his next friend and mother Gabriela Castro; MARK HAMMAN; JOEY SALAS

Plaintiffs - Appellants

v.

CITY OF ARLINGTON, A Municipal Corporation

Defendant - Appellee

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

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA,
BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD,
SOUTHWICK, and HAYNES, Circuit Judges.*
BENAVIDES and PRADO, Circuit Judges:
Title II of the Americans with Disabilities Act (ADA),1 like § 504 of the
Rehabilitation Act,2 provides that individuals with disabilities shall not “be
denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” For nearly two decades, Title
II’s implementing regulations have required cities to make newly built and

*
Judge Graves did not participate in this decision.
1
42 U.S.C. § 12132.
2
29 U.S.C. § 794(a).
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altered sidewalks readily accessible to individuals with disabilities. The
plaintiffs-appellants in this case, five individuals with disabilities, allege that
defendant-appellee the City of Arlington (the City) has recently built and altered
sidewalks that are not readily accessible to them. The plaintiffs brought this
action for injunctive relief under Title II and § 504.
We must resolve two issues. First, we must determine whether Title II
and § 504 (and their implied private right of action) extend to newly built and
altered public sidewalks.3 Second, we must determine whether that private
right of action accrued at the time the City built or altered its inaccessible
sidewalks, or alternatively at the time the plaintiffs first knew or should have
known they were being denied the benefits of those sidewalks. We hold that the
plaintiffs have a private right of action to enforce Title II and § 504 with respect
to newly built and altered public sidewalks, and that the right accrued at the
time the plaintiffs first knew or should have known they were being denied the
benefits of those sidewalks.
I
The plaintiffs in this case depend on motorized wheelchairs for mobility.
They allege that certain inaccessible sidewalks make it dangerous, difficult, or
impossible for them to travel to a variety of public and private establishments
throughout the City. Most of these sidewalks allegedly were built or altered by
the City after Title II became effective on January 26, 1992.4 The plaintiffs sued

3
Unless otherwise indicated, references to “sidewalks” refer to public sidewalks
and parking lots.
4
Title II was enacted on July 26, 1990 and became effective eighteen months
later on January 26, 1992. Pub. L. No. 101-336 § 205(a), 104 Stat. 327, 338 (1990),
(codified as amended at 42 U.S.C. §§ 12131-12165).

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the City on July 22, 2005, claiming that the inaccessible sidewalks violate Title
II of the ADA and § 504 of the Rehabilitation Act. The complaint was most
recently amended on August 9, 2007. The plaintiffs seek injunctive relief but not
damages.
The district court dismissed the plaintiffs’ complaint on statute-of-
limitations grounds. The district court determined that the plaintiffs’ claims
accrued, and the relevant two-year limitations period began to run, on the date
the City finished building or altering any inaccessible sidewalk. After requiring
the plaintiffs to “replead their case and allege specific dates of the City’s
alteration or construction efforts,” the district court dismissed the complaint
because it did not allege dates of construction or alteration within two years of
July 22, 2005.
On appeal, a panel of this Court began by considering whether the
plaintiffs had a private right of action to enforce Title II with respect to
inaccessible sidewalks. The panel unanimously held that the plaintiffs had such
a right because public sidewalks are “services, programs, or activities” of a public
entity within the plain meaning of Title II.5 The panel next considered whether
the plaintiffs’ claims were barred by Texas’s two-year personal-injury statute of
limitations. The panel determined that the statute of limitations is an
affirmative defense on which the defendant has the burden of proof, and that the
district court erred in requiring the plaintiffs to plead dates of construction in
their complaint. The panel would have remanded for further proceedings. One

5
See Frame v. City of Arlington, 575 F.3d 432, 435-37 (5th Cir. 2009) (“Frame
I”), withdrawn, 616 F.3d 476 (5th Cir. 2010) (“Frame II”), vacated and reh’g en banc
granted, 632 F.3d 177 (5th Cir. 2011).

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member of the panel dissented, however, with respect to the panel majority’s
finding that the plaintiffs’ claims “accrued on the date the City completed the
construction or alteration of any noncompliant” sidewalk.6 According to the
dissenting judge, the plaintiffs’ claims did not accrue until the plaintiffs
“physically encounter[ed], or actually learn[ed] of and [were] deterred from
attempting to access, a noncompliant sidewalk.”7
Both parties petitioned for rehearing en banc. The panel majority
withdrew its initial opinion and issued a revised opinion.8 In the revised
opinion, the panel majority determined that sidewalks were not “services,
programs, or activities of a public entity” within the meaning of Title II. The
panel majority thus held that the plaintiffs did not have a private right of action
to enforce Title II with respect to sidewalks “in instances where these facilities
do not prevent access to some [other] service, program, or activity.”9 The panel
majority would have remanded the case “only to the extent [the plaintiffs] have
alleged a noncompliant sidewalk, curb, or parking lot denies them access to a
program, service, or activity that does fall within the meaning of Title II.”10 With
respect to the statute of limitations, however, the panel unanimously found that
the plaintiffs’ claims did not accrue until the plaintiffs “knew or should have
known” they were denied the benefits of the City’s services, programs, or

6
Frame I, 575 F.3d at 441.
7
Id. at 445.
8
Frame II, 616 F.3d at 486.
9
Id. at 488.
10
Id. at 490.

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activities .11 A member of the panel again dissented, asserting that the
construction, alteration, and maintenance of public sidewalks unambiguously
are services, programs, or activities of a public entity within the plain meaning
of Title II.12
We granted the plaintiffs’ second petition for rehearing en banc. At oral
argument, the plaintiffs unequivocally abandoned any claims with respect to
sidewalks built on or before (and not altered after) January 26, 1992.
Accordingly, we deem the plaintiffs’ claims with respect to such sidewalks
waived and abandoned.13 All that remain to be considered are the plaintiffs’
claims with respect to sidewalks built or altered after January 26, 1992. We
refer to such sidewalks as newly built or altered sidewalks.
II
We review de novo a district court’s dismissal of a complaint under Rule
12(b)(6).14 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’”15 A claim for relief is plausible on its face “when the plaintiff pleads

11
Id.
12
Id.
13
See Jackson v .Watkins, 619 F.3d 463, 466 n.1 (5th Cir. 2010).
14
Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795-96 (5th Cir.
2011).
15
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

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factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”16
III
It is established that Title II of the ADA and § 504 of the Rehabilitation
Act are enforceable through an implied private right of action. The issue is
whether these statutes (and their established private right of action) extend to
newly built and altered public sidewalks.17 Based on statutory text and
structure, we hold that Title II and § 504 unambiguously extend to newly built
and altered public sidewalks. We further hold that the plaintiffs have a private
right of action to enforce Title II and § 504 to the extent they would require the
City to make reasonable modifications to such sidewalks.
A
1
The ADA is a “broad mandate” of “comprehensive character” and
“sweeping purpose” intended “to eliminate discrimination against disabled
individuals, and to integrate them into the economic and social mainstream of

16
Id.
17
We note that the City and its amici have repeatedly conceded (in their
appellate briefing and at oral argument) that the plaintiffs have a private right of
action to enforce Title II with respect to newly built and altered sidewalks. The City
argues that it has limited obligations with respect to sidewalks built on or before (and
not altered after) January 26, 1992, but, as noted above, the plaintiffs have abandoned
their claims with respect to such sidewalks. Although our de novo review is not
controlled by the City’s interpretation of Title II, see, e.g., Sanford’s Estate v. Comm’r
of Internal Revenue, 308 U.S. 39, 51 (1939); Equitable Life Assurance Soc’y of U.S. v.
MacGill, 551 F.2d 978, 983 (5th Cir. 1977), the City’s concession supports our decision.

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American life.”18 Title II of the ADA focuses on disability discrimination in the
provision of public services. Specifically, Title II, 42 U.S.C. § 12132, provides
that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any
such entity.”
Section 504 of the Rehabilitation Act prohibits disability discrimination by
recipients of federal funding. Like Title II, § 504 provides that no qualified
individual with a disability “shall, solely by reason of her or his disability, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.”19 The ADA and the Rehabilitation Act generally are interpreted in
pari materia.20 Indeed, Congress has instructed courts that “nothing in [the
ADA] shall be construed to apply a lesser standard than the standards applied
under title V [i.e., § 504] of the Rehabilitation Act . . . or the regulations issued

18
PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (citation and quotation
marks omitted); see also 42 U.S.C. § 12101(b)(1), (2) (stating that the ADA is intended
to provide a “clear and comprehensive national mandate” for eliminating disability
discrimination as well as “clear, strong, consistent, enforceable standards” addressing
such discrimination); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599 (1999) (“The
ADA stepped up earlier measures to secure opportunities for people with
developmental disabilities to enjoy the befits of community living.”).
19
29 U.S.C. § 794(a).
20
See, e.g., Kemp v. Holder, 610 F.3d 231, 234-35 (5th Cir. 2010); Pace v.
Bogalusa City Sch. Bd., 403 F.3d 272, 287-88, 289 n.76 (5th Cir. 2005) (en banc).

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by Federal agencies pursuant to such title.”21 The parties have not pointed to
any reason why Title II and § 504 should be interpreted differently in this case.
Although we focus primarily on Title II, our analysis is informed by the
Rehabilitation Act, and our holding applies to both statutes.
As mentioned, there is no question that Title II and § 504 are enforceable
through an implied private right of action.22 Moreover, to the extent Title II’s
implementing regulations “simply apply” Title II’s substantive ban on disability
discrimination and do not prohibit conduct that Title II permits, they too are
enforceable through Title II’s private right of action.23 This is because when
Congress intends a statute to be enforced through a private right of action, it

21
42 U.S.C. § 12201(a); Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (“The
directive requires us to construe the ADA to grant at least as much protection as
provided by the regulations implementing the Rehabilitation Act.”); cf. 42 U.S.C.
§ 12133 (providing that “[t]he remedies, procedures, and rights” available under the
Rehabilitation Act “shall be the remedies procedures, and rights” available under Title
II of the ADA).
22
See United States v. Georgia, 546 U.S. 151, 154 (2006) (“Title II authorizes
suits by private citizens for money damages against public entities that violate [Title
II].”); Tennessee v. Lane, 541 U.S. 509, 532 (2004) (holding that private plaintiffs could
enforce Title II with respect to inaccessible courthouses); Barnes v. Gorman, 536 U.S.
181, 185 (2002) (stating that Title II and § 504 of the Rehabilitation Act “are
enforceable through private causes of action”); Olmstead, 527 U.S. at 597 (holding that
mentally disabled plaintiffs could sue state health officials under Title II to receive
community-based treatment); Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)
(holding that prisoner could sue state prison under Title II to gain admission to
motivational boot camp); McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 415 n.9
(5th Cir. 2004) (noting that “both Title II and § 504 are enforceable directly through
private causes of action”).
23
See Alexander v. Sandoval, 532 U.S. 275, 285 (2001).

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also “intends the authoritative interpretation of the statute to be so enforced as
well.”24
In interpreting the scope of Title II (and its implied private right of action),
our starting point is the statute’s plain meaning.25 In ascertaining the plain
meaning of Title II, we “must look to the particular statutory language at issue,
as well as the language and design of the statute as a whole.”26
If we determine that the plain meaning of Title II is ambiguous, we do not
simply impose our own construction on the statute. When confronted with a
statutory ambiguity, we refer to the responsible agency’s reasonable
interpretation of that statute. Here, because Congress directed the Department
of Justice (DOJ) to elucidate Title II with implementing regulations,27 DOJ’s

24
Id. at 284-85 (citing Rehabilitation Act regulations).
25
See Yeskey, 524 U.S. at 210 (analyzing the plain meaning of “benefits of the
services, programs, or activities of a public entity” in determining the plaintiff’s right
to sue under Title II); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005)
(holding that the implied private right of action to enforce Title IX of the Education
Amendments of 1972 encompasses suits for retaliation “based on the statute’s text”);
cf. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164,
173 (1994) (“[O]ur cases considering the scope of conduct prohibited by § 10(b) [of the
Securities Exchange Act of 1934] in private suits have emphasized adherence to the
statutory language, the starting point in every case involving construction of a
statute.” (citation, quotation marks, and brackets omitted)).
26
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
27
See 42 U.S.C. § 12134(a).

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views at least would “warrant respect”28 and might be entitled to even more
deference.29
2
We begin by determining whether the plain meaning of Title II extends to
newly built and altered sidewalks. As noted, Title II provides that disabled
individuals shall not be denied the “benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.”30 The Supreme Court addressed this same statutory provision in
Pennsylvania Department of Corrections v. Yeskey, and held that it
“unambiguously” permitted a prisoner to sue a state prison.31 The Supreme

28
Olmstead, 527 U.S. at 598-99.
29
See Alexander v. Choate, 469 U.S. 287, 305 n.24 (1985) (recognizing that “those
charged with administering [the Rehabilitation Act] ha[ve] substantial leeway to
explore areas in which discrimination against the handicapped posed particularly
significant problems and to devise regulations to prohibit such discrimination”); see
also Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984)
(holding that when “Congress has explicitly left a gap for the agency to fill . . . [s]uch
legislative regulations are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute”).
30
42 U.S.C. § 12132. There is no dispute that the plaintiffs are qualified
individuals with disabilities, nor that the City is a “public entity” within the meaning
of Title II. For reference, a “qualified individual with a disability” means “an
individual with a disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.” Id. § 12131(2). A “public entity” means, inter alia, any
local government, or any department, agency, or instrumentality of a local government.
Id. § 12131(1)(A), (B).
31
524 U.S. at 213.

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Court considered the text of Title II as it is “ordinarily understood,” and
reasoned that “prisons provide inmates with recreational ‘activities,’ medical
‘services,’ and educational and vocations ‘programs,’ all of which at least
theoretically ‘benefit’ the prisoners.”32 The Supreme Court noted that “in the
context of an unambiguous statutory text,” it is “irrelevant” whether Congress
specifically envisioned that the ADA would benefit state prisoners.33 That a
statute may be “applied in situations not expressly anticipated by Congress does
not demonstrate ambiguity. It demonstrates breadth.”34
The ADA does not define the “services, programs, or activities of a public
entity.” The Rehabilitation Act, however, defines a “program or activity” as “all
of the operations of . . . a local government.”35 As already stated, we interpret
Title II and the Rehabilitation Act in pari materia. Accordingly, like the
Supreme Court in Yeskey, we must determine whether newly built and altered
city sidewalks are benefits of “all of the operations” and “services” of a public
entity within the ordinary meaning of those terms.
Before resolving this issue, however, we briefly acknowledge two different
ways of framing it. Some parties urge us to consider whether building and
altering sidewalks are services, programs, or activities of a public entity, and
thus whether the resulting sidewalks are “benefits” of those services, programs,
or activities. Other parties urge us to consider whether a city sidewalk itself is

32
Id. at 210.
33
Id. at 212.
34
Id.
35
29 U.S.C. § 794(b)(1)(A).

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a service, program, or activity of a public entity. As discussed below, we believe
this case does not turn on how we frame the issue.36 Either way, when a city
decides to build or alter a sidewalk and makes that sidewalk inaccessible to
individuals with disabilities without adequate justification, the city
unnecessarily denies disabled individuals the benefits of its services in violation
of Title II.
a
Building and altering city sidewalks unambiguously are “services” of a
public entity under any reasonable understanding of that term. The Supreme
Court has broadly understood a “service” to mean “the performance of work
commanded or paid for by another,” or “an act done for the benefit or at the
command of another.”37 Webster’s Dictionary additionally defines a “service” as
“the provision, organization, or apparatus for . . . meeting a general demand.”38
For its part, Black’s Law Dictionary defines a “public service” as work “provided
or facilitated by the government for the general public’s convenience and
benefit.”39
Under each of these common understandings, building and altering public
sidewalks unambiguously are services of a public entity. The construction or
alteration of a city sidewalk is work commanded by another (i.e., voters and

36
See Choate, 469 U.S. at 301 (“The benefit itself, of course, cannot be defined
in a way that effectively denies otherwise qualified handicapped individuals the
meaningful access to which they are entitled . . . .”).
37
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2721-22 (2010) (quoting
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2075 (1993)).
38
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2075 (1993).
39
BLACK’S LAW DICTIONARY 1352 (9th ed. 2009).

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public officials), paid for by another (i.e., taxpayers), and done for the benefit of
another (e.g., pedestrians and drivers). When a city builds or alters a sidewalk,
it promotes the general public’s convenience by overcoming a collective action
problem and allowing citizens to focus on other ventures. Morever, when a city
builds or alters a sidewalk, it helps meet a general demand for the safe
movement of people and goods.40 In short, in common understanding, a city
provides a service to its citizens when it builds or alters a public sidewalk.
A “service” also might be defined as “[t]he duties, work, or business
performed or discharged by a public official.”41 Under this definition too, newly
built and altered public sidewalks are services of a public entity. Cities, through
their officials, study, debate, plan, and ultimately authorize sidewalk
construction.42 If a city official authorizes a public sidewalk to be built in a way
that is not readily accessible to disabled individuals without adequate

40
See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994) (“The
state also has a strong interest . . . in promoting the free flow of traffic on public streets
and sidewalks . . . .”); Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
696-97 (1992) (Kennedy, J., concurring) (observing that “the principal purpose
of streets and sidewalks . . . is to facilitate transportation”); Schneider v. State of N.J.,
Town of Irvington, 308 U.S. 147, 160 (1939) (“Municipal authorities, as trustees for the
public, have the duty to keep their communities’ streets open and available for
movement of people and property, the primary purpose to which the streets are
dedicated.”).
41
See supra, n.38.
42
Cf. Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574-75 (5th Cir. 2002)
(holding that “when a plaintiff asserts a cause of action against an
employer-municipality, under either the ADA or the RA, the public entity is liable for
the vicarious acts of any of its employees”); Duvall v. Cnty. of Kitsap, 260 F.3d 1124,
1141 (9th Cir. 2001) (similar); McCarthy, 381 F.3d at 413-14 (holding that a state
official may be sued in his official capacity for prospective relief under Title II);
Henrietta D. v. Bloomberg, 331 F.3d 261, 289 (2d Cir. 2003) (same).

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justification, the official denies disabled individuals the benefits of that sidewalk
no less than if the official poured the concrete himself.
Furthermore, building and altering public sidewalks easily are among “all
of the operations” (and thus also the “programs or activities”) of a public entity.
Webster’s Dictionary broadly defines “operations” as “the whole process of
planning for and operating a business or other organized unit,” and defines
“operation” as “a doing or performing esp[ecially] of action.”43 In common
understanding, the operations of a public entity would include the “whole
process” of “planning” and “doing” that goes into building and altering public
sidewalks.44
In sum, in common understanding, building and altering public sidewalks
are services, programs, or activities of a public entity. When a city decides to
build or alter a sidewalk and makes that sidewalk inaccessible to individuals
with disabilities without adequate justification, disabled individuals are denied
the benefits of that city’s services, programs, or activities. Newly built and
altered sidewalks thus fit squarely within the plain, unambiguous text of
Title II.

43
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1581 (1993).
44
For its part, Arlington publicizes that it “rebuild[s] sidewalks” through a
“program” administered by the Arlington “Department of Public Works Services.” City
of Arlington, Questions and Answers - Traffic, Streets & Transportation,
http://www.arlingtontx.gov/cityhall/qna_traffic.html (last visited July 25, 2011).
Although perhaps not dispositive, the City’s characterization of its own programs and
services is at least relevant to this case. Cf. Yeskey, 524 U.S. at 210 (noting that “the
statute establishing the Motivational Boot Camp at issue in this very case refers to it
as a ‘program’”).

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b
Even if we focus on a public sidewalk itself, we still find that a sidewalk
unambiguously is a service, program, or activity of a public entity. A city
sidewalk itself facilitates the public’s “convenience and benefit” by affording a
means of safe transportation.45 A city sidewalk itself is the “apparatus” that
meets the public’s general demand for safe transportation.46 As the Supreme
Court has observed, sidewalks are “general government services”47 “provided in
common to all citizens”48 to protect pedestrians from the “very real hazards of
traffic.”49 The Supreme Court also has recognized that public sidewalks are
“traditional public fora” that “time out of mind” have facilitated the general
demand for public assembly and discourse.50 When a newly built or altered city
sidewalk is unnecessarily made inaccessible to individuals with disabilities,
those individuals are denied the benefits of safe transportation and a venerable
public forum.

45
See supra, n.39.
46
See supra, n.38.
47
Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 17-18 (1947).
48
Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 781-82
(1973).
49
Everson, 330 U.S. at 17-18.
50
Boos v. Barry, 485 U.S. 312, 318 (1988) (observing that “sidewalks” are
“traditional public fora that ‘time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions’”); Fairchild
v. Liberty Indep. Sch. Dist., 597 F.3d 747, 757-58 (5th Cir. 2010) (recognizing same).

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3
Were there any doubt that the plain meaning of § 12132 extends to newly
built and altered sidewalks, other provisions in Title II confirm that it does.
Congress directed DOJ to “promulgate regulations” that “implement” § 12132.51
Congress also required those implementing regulations to be consistent with
Rehabilitation Act coordination regulations codified at 28 C.F.R. pt. 41.52
Notably, the Rehabilitation Act regulations that Congress sought to replicate
under Title II require new and altered facilities, including sidewalks, to be
accessible in most circumstances.53 That Congress directed DOJ to “implement”
§ 12132 by promulgating regulations governing newly built and altered
sidewalks strongly suggests that Congress thought § 12132 would extend to such
sidewalks.
In fact, the ADA actually prohibits courts from construing Title II to apply
a lesser standard than the Rehabilitation Act and its implementing regulations.54

51
42 U.S.C. § 12134(a); see also 28 C.F.R. § 35.101 (2010) (“The purpose of this
part is to effectuate subtitle A of title II of the [ADA], which prohibits discrimination
on the basis of disability by public entities.”). DOJ’s regulations were amended
effective March 11, 2011. The parties do not assert that the amended regulations
apply to this case, and we assume that the earlier regulations continue to apply.
52
42 U.S.C. § 12134(b). The coordination regulations “implement Executive
Order 12250, which requires the [DOJ] to coordinate the implementation of section 504
of the Rehabilitation Act” among federal agencies. 28 C.F.R. § 41.1.
53
28 C.F.R. § 41.58(a) (requiring new facilities to be accessible, and altered
facilities to be accessible “to the maximum extent feasible”); id. § 41.3(f) (defining
“facility” to include “roads, walks, [and] parking lots”).
54
42 U.S.C. § 12201(a) (requiring that “nothing in this chapter shall be
construed to apply a lesser standard than the standards applied under title V of the
Rehabilitation Act of 1973 . . . or the regulations issued by Federal agencies pursuant
to such title”).

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As the Supreme Court has recognized, Congress’s “directive requires us to
construe the ADA to grant at least as much protection as provided by the
regulations implementing the Rehabilitation Act.”55 Because the Rehabilitation
Act regulations require new and altered facilities, including sidewalks, to be
accessible in most circumstances, our construction of § 12132 requires no less.
Additionally, in clarifying the requirements of Title II in the unique
context of “designated public transportation services” (e.g., regular rail and bus
services), Congress expressly provided that § 12132 requires new and altered
“facilities” to be accessible.56 Although Congress did not define “facilities,” the
relevant Department of Transportation (DOT) regulations define the term to
include, inter alia, “roads, walks, passageways, [and] parking lots.”57 Congress’s
express statement that § 12132 extends to newly built and altered facilities is
a good indication that Congress thought § 12132 would extend to newly built and
altered sidewalks.
The City draws our attention to a purported distinction between
“transportation barriers” and “services” in Title II’s definition of a “qualified
individual with a disability.” A qualified individual with a disability is defined
as:

55
Bragdon, 524 U.S. at 632.
56
42 U.S.C. §§ 12146-47; see also H.R. REP. NO. 101-485(II), at 84 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 366 (noting that the purpose of Part B of Title II
“is to clarify the requirements of section 504 [of the Rehabilitation Act] . . . and to
extend coverage to all public entities that provide public transportation, whether or not
such entities receive Federal aid”).
57
49 C.F.R. § 37.3.

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an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.”58

According to the City, because Congress included transportation barriers and
services in the same sentence, Congress must have contemplated that newly
built and altered sidewalks (and other facilities) are not services, programs, or
activities within the meaning of § 12132.
As an initial matter, if our focus is on building and altering sidewalks, as
opposed to sidewalks themselves, the City’s distinction breaks down
immediately. Even if the definition of a qualified individual with a disability
suggests that sidewalks and services are mutually exclusive, the definition
certainly does not suggest (contrary to any ordinary understanding) that
building and altering sidewalks are not services.
In any event, Title II’s definition of a qualified individual with a disability
does not suggest that sidewalks and services are mutually exclusive. The phrase
“with or without . . . the removal of architectural, communication, or
transportation barriers” simply clarifies that the necessity of a reasonable
accommodation does not disqualify a disabled individual from invoking Title II
in the first place.59 Drawing from the complaint in this case, a transportation
barrier might be a ditch. The definition thus tells us that a newly built or

58
42 U.S.C. § 12131(2).
59
See Choate, 469 U.S. at 301 (finding that “an otherwise qualified handicapped
individual must be provided with meaningful access to the benefit that the grantee
offers”).

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altered sidewalk implicates Title II even if making that sidewalk readily
accessible would require reasonably removing the ditch. In other words, a
disabled individual’s right not to be denied access to a newly built or altered
sidewalk does not turn on his ability to access that sidewalk in the first place.
This in no way suggests that newly built and altered sidewalks are exempt from
§ 12132’s plain, unambiguous meaning.
Taking a step back, the phrase “with or without . . . the removal of
architectural, communication, or transportation barriers” in the definition of a
qualified individual with a disability is used to expand Title II’s
nondiscrimination mandate, not narrow it. The definition ensures that existing
barriers are not used to justify future discrimination. But recognizing that
existing transportation barriers sometimes impede access to public services does
not suggest that Congress thought cities could go on building new, inaccessible
sidewalks. We do not think Congress intended to limit the plain meaning of
§ 12132 by referring to a recognized form of disability discrimination60 in an
effort to expand § 12132’s coverage.
4
Though unnecessary to resolve this case, legislative purpose and history
confirm that Congress intended Title II to extend to newly built and altered
sidewalks. Congress anticipated that Title II would require local
governments “to provide curb cuts on public streets” because the “employment,
transportation, and public accommodation sections of [the ADA] would be
meaningless if people who use wheelchairs were not afforded the opportunity to

60
See 42 U.S.C. § 12101(a)(5) (finding that disabled individuals suffer from
various forms of discrimination, including the discriminatory effects of transportation
barriers).

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travel on and between streets.”61 Implicit in this declaration is a premise that
sidewalks are subject to Title II in the first place. Congress’s specific application
of Title II is consistent with its statutory findings. In enacting Title II, Congress
found that individuals with disabilities suffer from “various forms of
discrimination,” including “isolat[ion] and segregat[ion],”62 and that inaccessible
transportation is a “critical area[]” of discrimination.63 Moreover, Congress
understood that accessible transportation is the “linchpin” that “promotes the
self-reliance and self-sufficiency of people with disabilities.”64 Continuing to
build inaccessible sidewalks without adequate justification would unnecessarily
entrench the types of discrimination Title II was designed to prohibit.
Title II does not only benefit individuals with disabilities. Congress
recognized that isolating disabled individuals from the social and economic
mainstream imposes tremendous costs on society. Congress specifically found

61
H.R. REP. NO. 101-485(II), at 84.
62
42 U.S.C. § 12101(a)(2), (5); see also Olmstead, 527 U.S. at 600 (“Congress
explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of
discrimination.”); id. at 613-14 (Kennedy, J., concurring in part and concurring in the
judgment) (“I deem it relevant and instructive that Congress in express terms
identified the ‘isolat[ion] and segregat[ion]’ of disabled persons by society as a ‘for[m]
of discrimination’ . . . .”); cf. Choate, 469 U.S. at 295 (recognizing that “[d]iscrimination
against the handicapped was perceived by Congress to be most often the product, not
of invidious animus, but rather of thoughtlessness and indifference–of benign neglect”);
id. at 296 (recognizing that “discrimination against the handicapped is primarily the
result of apathetic attitudes rather than affirmative animus”).
63
42 U.S.C. § 12101(a)(3); see also H.R. REP. NO. 101-485(II), at 37 (recognizing
that inaccessible transportation is “the major barrier” to work for disabled individuals,
and “[p]eople who cannot get to work . . . cannot exercise their rights and obligations
as citizens”).
64
H.R. REP. NO. 101-485(II), at 37.

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that disability discrimination “costs the United States billions of dollars in
unnecessary expenses resulting from dependency and nonproductivity.”65
Congress also anticipated that “the mainstreaming of persons with disabilities
will result in more persons with disabilities working, in increasing earnings, in
less dependence on the Social Security system for financial support, in increased
spending on consumer goods, and increased tax revenues.”66 The Rehabilitation
Act was passed with similar findings and purpose.67 Continuing to build
inaccessible sidewalks without adequate justification would unnecessarily
aggravate the social costs Congress sought to abate.
To conclude, it would have come as no surprise to the Congress that
enacted the ADA that Title II and its implementing regulations were being used
to regulate newly built and altered city sidewalks. Indeed, Title II
unambiguously requires this result. Having considered both the statutory
language of § 12132 as well as the language and design of Title II as a whole, we
hold that Title II unambiguously extends to newly built and altered sidewalks.
Because we interpret Title II and § 504 of the Rehabilitation Act in pari materia,
we hold that § 504 extends to such sidewalks as well.

65
42 U.S.C. § 12101(a)(8); see also H.R. REP. NO. 101-485(II), at 43 (recognizing
that dependency “is a major and totally unnecessary contributor to public deficits and
private expenditures” and costs society “literally billions of dollars annually in support
payments and lost income tax revenues”); id. at 44 (recognizing that disability
discrimination “deprives our nation of a critically needed source of labor”).
66
Id. at 43-44.
67
See, e.g., 29 U.S.C. § 701(b)(1) (stating that the “purposes of this chapter . . .
are . . . to empower individuals with disabilities to maximize employment, economic
self-sufficiency, independence, and inclusion and integration into society, through
. . . the guarantee of equal opportunity”).

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B
1
As discussed above, when a city decides to build or alter a sidewalk but
makes that sidewalk inaccessible to individuals with disabilities without
adequate justification, the city discriminates within the meaning of Title II.
Such a sidewalk benefits persons without physical disabilities, yet that benefit
is unnecessarily denied to similarly situated persons with physical disabilities.
Continuing to build inaccessible sidewalks without adequate justification
needlessly perpetuates the “isolation and segregation” of disabled individuals,
and is the type of discrimination the ADA prohibits.68
That Title II extends to newly built and altered sidewalks does not mean
that it, or its private right of action, requires cities to employ “any and all
means” to make such sidewalks accessible.69 A city’s obligation to make newly
built and altered sidewalks readily accessible is not “boundless.”70 As the
Supreme Court stated in Tennessee v. Lane, Title II imposes an “obligation to
accommodate,” or a “reasonable modification requirement.”71

68
Olmstead, 527 U.S. at 613 (Kennedy, J., concurring in part and concurring in
the judgment) (brackets omitted).
69
Lane, 541 U.S. at 531.
70
Olmstead, 527 U.S. at 603 (plurality).
71
541 U.S. at 532-33; see also Choate, 469 U.S. at 301 (suggesting Rehabilitation
Act requires “meaningful access” and “reasonable accommodations”); Brennan v.
Stewart, 834 F.2d 1248, 1261 (5th Cir. 1988) (recognizing same). We express no
opinion as to whether (or when) a failure to make reasonable accommodations should
be considered a form of intentional discrimination, a form of disparate impact
discrimination, or something else entirely.

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On their face, DOJ’s regulations governing new and altered facilities are
congruous with Title II’s reasonable modification requirement. Under DOJ’s
regulations, each new sidewalk must be made “readily accessible” to individuals
with disabilities.72 This is because, as Congress recognized, the marginal costs
of making a new sidewalk readily accessible “are often nonexistent or
negligible.”73 With respect to altered sidewalks, the “altered portion” must be
made “readily accessible” “to the maximum extent feasible” if it “could affect the
usability of the facility.”74 Again, this is because once a public entity decides to
alter a sidewalk, it generally is not a significant burden to make the altered
portion of that sidewalk accessible.75 In any event, a public entity is not
“required to undertake measures that would impose an undue financial or
administrative burden, threaten historic preservation interests, or effect a
fundamental alteration in the nature of the service.”76 Thus, DOJ’s regulations
do not require cities to achieve accessibility at any cost. Instead, the regulations
require only that when a city chooses to construct a new sidewalk or alter an
existing one, the city must take reasonable measures to ensure that those

72
28 C.F.R. § 35.151(a); id. § 35.104 (defining a “facility” to include, inter alia,
“roads, walks, passageways, [and] parking lots”).
73
See H.R. REP. NO. 101-485(II), at 36 (recognizing that “newly constructed
build-ups should be fully accessible because the additional costs for making new
facilities accessible are often nonexistent or negligible”).
74
28 C.F.R. § 35.151(b).
75
See H.R. REP. NO. 101-485(II), at 36 (recognizing that “[i]f accessibility is part
of the planning from the onset of a project, then that access costs no more or at the
most marginally more than a project with no access”).
76
Lane, 541 U.S. at 532; see also 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(2)-(3), (b)(1),
35.151(b), (d).

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sidewalks are readily accessible to individuals with disabilities. This is the same
thing Title II requires.
Our conclusion is strongly suggested by the Supreme Court’s decision in
Lane. In Lane, the Supreme Court found that Title II requires public entities “to
take reasonable measures to remove architectural and other barriers to
accessibility.”77 In elucidating the scope of this “reasonable modification
requirement,” Lane reviewed DOJ’s regulations with approval:
As Title II’s implementing regulations make clear, the reasonable
modification requirement can be satisfied in a number of ways. In
the case of facilities built or altered after 1992, the regulations
require compliance with specific architectural accessibility
standards. 28 C.F.R. § 35.151 (2003). But in the case of older
facilities, for which structural change is likely to be more difficult,
a public entity may comply with Title II by adopting a variety of less
costly measures . . . .78

The Supreme Court’s use of DOJ’s regulations to illustrate the scope of Title II’s
reasonable modification requirement is a good indication that those regulations
simply apply Title II’s nondiscrimination mandate.
Similarly, in Alexander v. Choate, the Supreme Court recognized that
“[t]he regulations implementing § 504 [of the Rehabilitation Act] are consistent
with the view that reasonable adjustments in the nature of the benefit offered
must at times be made to assure meaningful access.”79 As an example, the
Supreme Court cited a Department of Health and Human Services regulation
“requiring that new buildings be readily accessible” and “building alterations be

77
541 U.S. at 531.
78
Id. at 532.
79
469 U.S. at 302 n.21.

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accessible ‘to the maximum extent feasible.’”80 Again, the Supreme Court’s
reliance on these regulations to illustrate the scope of § 504’s reasonable
adjustment requirement strongly suggests that those regulations (and the
regulations at issue in this case) simply apply § 504’s nondiscrimination
mandate.
Consistent with the Supreme Court’s discussion in Lane and Choate (and
our own analysis), at least three other circuits have upheld a private right of
action to enforce DOJ’s regulations governing newly built and altered sidewalks.
In Ability Center of Greater Toledo v. City of Sandusky, the Sixth Circuit upheld
a private right of action to enforce DOJ’s regulations with respect to newly built
and altered sidewalks.81 Similarly, in Barden v. City of Sacramento, the Ninth
Circuit permitted a private plaintiff to enforce DOJ’s regulations with respect
to newly built and altered (and existing) sidewalks.82 And in Kinney v.
Yerusalim, the Third Circuit permitted a private plaintiff to enforce DOJ’s
regulations with respect to altered sidewalks.83 Although the Tenth Circuit’s
decision in Chaffin v. Kansas State Fair Board did not concern sidewalks, it too
upheld a private right of action to enforce DOJ’s regulations with respect to
other facilities.84

80
Id. (citing 45 C.F.R. § 84.23 (1984)).
81
385 F.3d 901, 906-07 (6th Cir. 2004).
82
292 F.3d 1073, 1076 (9th Cir. 2002).
83
9 F.3d at 1069.
84
348 F.3d 850, 861 (10th Cir. 2003).

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On occasion, a plaintiff may attempt to enforce DOJ’s regulations beyond
what those regulations and even Title II require. In such cases, DOJ’s
regulations would not “simply apply” Title II’s mandate, and thus would not be
privately enforceable.85 Such cases generally should be dealt with at summary
judgment or trial. If the City can show that making its newly built and altered
sidewalks accessible would have been unreasonable when those sidewalks were
built or altered, the City would be entitled to an affirmative defense.86 Of course,
the district court also will have discretion to craft an appropriate injunction
based on the particular facts of the case,87 and thus will be able to ensure that
the City’s alleged violations are remedied in a reasonable manner. On the face
of the plaintiffs’ complaint, however, we cannot say that the plaintiffs’ remaining
claims are unreasonable as a matter of law.
2
So far, we have determined that the plain meaning of Title II extends to
newly built and altered sidewalks, and that DOJ’s regulations governing such

85
Sandoval, 532 U.S. at 285.
86
Cf. Olmstead, 527 U.S. at 604 (plurality) (finding that a state may “show that,
in the allocation of available resources, immediate relief for the plaintiffs would be
inequitable,” “taking into account the resources available to the State and the needs
of others with mental disabilities”); id. at 607 (Stevens, J., concurring in part and
concurring in the judgment) (“If a plaintiff requests relief that requires modification
of a State’s services or programs, the State may assert, as an affirmative defense, that
the requested modification would cause a fundamental alteration of a State’s services
and programs.”).
87
See, e.g., United States v. Criminal Sheriff, Parish of Orleans, 19 F.3d 238, 239
(5th Cir. 1994); 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY LANE,
FEDERAL PRACTICE AND PROCEDURE § 2942 (2d ed.); cf. Watson v. City of Memphis, 373
U.S. 526, 529-31 (1963).

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sidewalks will “simply apply” Title II in most cases. Unless there is some other
reason to judicially limit Title II’s private right of action, that private right of
action would seem to authorize the plaintiffs’ claims in this case.
The panel majority in Frame II would have limited Title II’s private right
of action to sidewalks that serve as “gateways” to other public services,
programs, or activities.88 As already discussed, we find no statutory basis for
such a limitation.89 The panel majority relied primarily on a DOJ regulation, 28
C.F.R. § 35.149, which provides:
Except as otherwise provided in § 35.150 [governing the accessibility
of existing facilities], no qualified individual with a disability shall,
because a public entity’s facilities are inaccessible . . . be denied the
benefits of the services, programs, or activities of a public entity . . . .

According to the panel majority, § 35.149 suggests that sidewalks and services
are mutually exclusive, and that sidewalks are subject to Title II only when they
impede access to other services. The panel majority reasoned that if DOJ
thought sidewalks could be a service, it would have simply regulated them like
any other service and not included them in the definition of a facility.90
The problem with Frame II is that it interprets § 35.149 in isolation and
ignores the rest of DOJ’s regulations. Section 35.149 is but one part of DOJ’s
regulatory scheme. Read as a whole, DOJ’s regulatory scheme makes clear that

88
616 F.3d at 488.
89
See Yeskey, 524 U.S. at 210 (noting that “[t]he text of the ADA provides no
basis for distinguishing” the programs, services, and activities of a public entity in one
context from those provided in other contexts).
90
See 28 C.F.R. § 41.3(f) (defining “facility” to include “road, walks, [and] parking
lots”).

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sidewalks are defined as facilities not to exclude them from the scope of Title II,
but simply to ensure that they are made accessible in a gradual and prioritized
manner.
Had DOJ omitted sidewalks from the definition of a facility, §§ 35.130 and
35.149 would have required all sidewalks to be immediately accessible.91 By
including sidewalks in the definition of a facility, however, DOJ was able to craft
a more nuanced approach. As already discussed, § 35.151 provides that each
newly built or altered sidewalk must be readily accessible in most cases.92 But
§§ 35.149 and 35.150 qualify that existing sidewalks (i.e., sidewalks built on or
before and not altered after January 26, 1992) need not be made accessible in
most cases.93 And to the extent an existing sidewalk impedes access to some
other service, program, or activity, a city may adopt a variety of reasonable
accommodations other than structural changes.94 DOJ’s regulatory scheme thus
treats newly built and altered sidewalks differently from existing sidewalks.
This sensible approach does not suggest that DOJ intended to exclude newly
built and altered sidewalks from the plain meaning of Title II’s
nondiscrimination mandate or its private right of action.95

91
28 C.F.R. §§ 35.130, 35.150.
92
Id. § 35.151.
93
Id. §§ 35.149, 35.150(a).
94
Id. § 35.150(b)(1).
95
We observe that DOJ was given authority only to “implement” § 12132. If a
“facility” could never be a “service, program, or activity” within the meaning of § 12132,
then § 35.151 would go beyond what § 12132 requires in most circumstances. It would
be bizarre to conclude that DOJ interprets § 12132 in a way that calls into question the
validity of its own regulations. See Sandoval, 532 U.S. at 282 (noting “considerable

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Were there any ambiguity in DOJ’s regulations (and we believe there is
not), DOJ has filed an amicus brief confirming that newly built and altered
sidewalks “are a subset of services, programs, or activities,” and that such
sidewalks need not “serve as a gateway to a service, program, or activity in order
to be covered by Title II.” According to DOJ, §§ 35.149-51 “simply explain how
the Act applies when the service, program, or activity is a facility, or takes place
in a facility.” We observe that DOJ’s position is consistent with its amicus briefs
in similar cases.96 Because DOJ’s amicus brief corroborates our own analysis,
we need not determine precisely how much deference it deserves.97
As a final matter, limiting Title II’s private right of action to sidewalks
that serve as gateways to other public services, programs, or activities would
create an unworkable and arbitrary standard. Even on the panel majority’s view
in Frame II, “there should be no set proximity limitation of the sidewalk to the

tension” in agency regulations that go beyond their statutory mandate); id. at 286 n.6
(observing “how strange it is to say” that regulations may prohibit conduct that the
statute permits).
96
See Br. for United States as Intervenor and Amicus Curiae at 72-78, Mason
v. City of Huntsville, Ala., No. 10-S-2794 (N.D. Ala. June 10, 2011); Br. for United
States as Amicus Curiae at 9-16, Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir.
2002) (No. 01-15744), 2001 WL 34095025 at *9-16; Br. for United States as Amicus
Curiae at 14, Kinney v. Yerusalem, 9 F.3d 1067 (3d Cir. 1993) (No. 93-1168), 1993 WL
13120087, at *14.
97
Compare Olmstead, 527 U.S. at 597-98 (finding that DOJ’s views as to the
meaning of Title II at least “warrant respect” when DOJ has “consistently advocated”
its position in other briefing), and Auer v. Robbins, 519 U.S. 452, 462-63 (1997)
(deferring to agency’s interpretation of its own regulations as presented in a legal
brief), with Janus Capital Grp., Inc. v. First Derivative Traders, 131 S. Ct. 2296, 2304
n.8 (2011) (expressing “skepticism” over the “degree” to which an agency should receive
deference regarding the scope of a private right of action).

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benefit.”98 But without a proximity limitation, the standard provides no
guidance to courts or local governments about when a newly built or altered
sidewalk must be accessible. The standard thus would undermine the ADA’s
purpose of providing “clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities,”99 and we reject it.
C
The City contends that the plaintiffs lack standing with respect to
inaccessible sidewalks they have not personally encountered. To be sure, Article
III standing requires a plaintiff seeking injunctive relief to allege “actual or
imminent” and not merely “conjectural or hypothetical” injury.100 Mere “some
day” intentions to use a particular sidewalk, “without any description of concrete
plans,” does not support standing.101 But “imminence” is an “elastic concept”
that is broad enough to accommodate challenges to at least some sidewalks that
a disabled person has not personally encountered.102 For example, a plaintiff
may seek injunctive relief with respect to a soon-to-be-built sidewalk, as long as
the plaintiff shows a sufficiently high degree of likelihood that he will be denied
the benefits of that sidewalk once it is built.103 Similarly, a disabled individual

98
616 F.3d at 484 n.9.
99
42 U.S.C. § 12101(b)(2).
100
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation and
quotation marks omitted).
101
Id. at 564.
102
Id. at 564 n.2.
103
See Walker v. City of Mesquite, 169 F.3d 973, 979 (5th Cir. 1999) (finding
homeowners had standing to enjoin new construction of public housing projects near

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need not engage in futile gestures before seeking an injunction; the individual
must show only that an inaccessible sidewalk actually affects his activities in
some concrete way.104 On remand, the district court will be able to apply
established standing doctrine to weed out any hypothetical claims. At this point,
however, the plaintiffs have alleged in detail how specific inaccessible sidewalks
negatively affect their day-to-day lives by forcing them to take longer and more
dangerous routes to their destinations. This is sufficient to support their right
to sue.
D
The City has waged a half-hearted attack on Title II’s constitutionality.
According to the City, “[a]n interpretation that the ADA requires construction,
maintenance and retrofilling [sic] of all City sidewalks, curb ramps and parking
lots is unconstitutional because it would exceed Congress’ enforcement power
under § 5 of the Fourteenth Amendment to the United States Constitution.” The
City has supported its constitutional challenge with approximately three pages
of briefing.

their neighborhoods).
104
See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 183-84 (2000) (distinguishing Lujan and finding standing based on plaintiffs’
assertions that they would use river but for the defendant’s pollution); Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (“[O]ne does not have to
await the consummation of threatened injury to obtain preventative relief. If the
injury is certainly impending, that is enough.”); Disabled Ams. for Equal Access, Inc.
v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (finding standing even
though disabled plaintiff had not traveled aboard noncompliant ferry); Pickern v.
Holiday Quality Foods Inc., 293 F.3d 1133, 1136-37 (9th Cir. 2002) (“Once a plaintiff
has actually become aware of discriminatory conditions existing at a public
accommodation, and is thereby deterred from visiting or patronizing that
accommodation, the plaintiff has suffered an injury.”).

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We decline to address the City’s constitutional challenge at this point. As
a preliminary matter, we have not held that Title II requires the City to
“construct[], maint[ain] and retrofi[t]” all of its existing sidewalks. We have held
only that when a city decides to build or alter a sidewalk and makes that
sidewalk inaccessible to individuals with disabilities without adequate
justification, the city discriminates in violation of Title II. Because our holding
is considerably narrower than the only interpretation the City asserts would be
unconstitutional, it would appear that the City has no constitutional objection
to our interpretation.
Additionally, DOJ has not yet had an opportunity to exercise its statutory
right to intervene and defend the constitutionality of Title II.105 DOJ’s absence,
together with the parties’ sparse briefing, supports our decision not to address
the constitutional arguments in this case. On remand, the City will have an
another opportunity to present its constitutional arguments, and DOJ should
have an opportunity to intervene.
IV
There remains the issue of whether the plaintiffs’ claims are barred by the
statute of limitations. Neither Title II nor the Rehabilitation Act provides a
limitations period. Furthermore, the default four-year limitations period for
federal causes of action does not apply to this case because that period applies
only to claims “arising under an Act of Congress enacted after” December 1,
1990.106 Both Title II and the Rehabilitation Act were “enacted” before December

105
28 U.S.C. § 2403(a); Haas v. Quest Recovery Servs., Inc., 549 U.S. 1163, 1163
(2007) (vacating and remanding to court of appeal “to consider the views of the United
States” as to whether Title II validly abrogated state sovereign immunity).
106
28 U.S.C. § 1658(a).

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1990,107 and the plaintiffs have not shown that their claims were “made possible”
by a post-1990 amendment to either statute.108
When Congress does not establish a limitations period for a federal cause
of action, the “general rule” is that we borrow the most analogous period from
state law.109 We decline to adopt a state limitations period only when another
federal statute “clearly provides a closer analogy,” and “when the federal policies
at stake and the practicalities of litigation make that rule a significantly more
appropriate vehicle for interstitial law making.”110 Reference to federal law
remains a “closely circumscribed” and “narrow” exception.111
No party disputes that Texas’s two-year personal-injury limitations period
applies to this case.112 We have already held that Texas’s personal-injury
limitations period applies to Rehabilitation Act claims in another context,113 and
several of our sister circuits have applied similar limitations periods to claims

107
Pub. L. No. 101-336 § 205(a) (1990).
108
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004).
109
N. Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995); Wilson v. Garcia, 471 U.S.
261, 266-67 (1985); see also 28 U.S.C. § 1652.
110
N. Star, 515 U.S. at 35 (quoting Reed v. United Trans. Union, 488 U.S. 319,
625 (1989)).
111
Id.
112
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (“[A] person must bring suit
for . . . personal injury . . . not later than two years after the day the cause of action
accrues.”).
113
See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir. 1992); cf.
Holmes v. Tex. A&M Univ., 145 F.3d 681, 684 (5th Cir. 1998) (assuming Texas’s two-
year personal-injury limitations period applied to claims under Title II).

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under both Title II and the Rehabilitation Act.114 This is because most
discrimination claims involve “injury to the individual rights of a person,” and
thus are analogous to personal-injury tort claims.115 In light of this authority
and the parties’ failure to show or even argue that we should apply some other
limitations period, we apply Texas’s two-year personal-injury limitations period
to this case.116
Although we borrow a limitations period from state law, the particular
accrual date of a federal cause of action is a matter of federal law.117 Absent
unusual circumstances not present in this case,118 the rule is that accrual occurs

114
See, e.g., Bishop v. Children’s Ctr. for Dev. Enrichment, 618 F.3d 533, 536 (6th
Cir. 2010); Disabled in Action of Penn. v. Se. Penn. Trans. Auth., 539 F.3d 199, 208 (3d
Cir. 2008); Gaona v. Town & Country Credit, 324 F.3d 1050, 1055 (8th Cir. 2003);
Everett v. Cobb Cnty. Sch. Bd., 138 F.3d 1407, 1409 (11th Cir. 1998); Soignier v. Am.
Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996); cf. Wilson, 471 U.S. at 276
(finding that § 1983 claims are best characterized as personal injury actions for
purposes of determining limitations period).
115
Goodman v. Lukens Steel Co., 482 U.S. 656, 661 (1987); Wilson, 471 U.S. at
277 (“Congress unquestionably would have considered the remedies established in the
Civil Rights Act to be more analogous to tort claims for personal injury than, for
example, to claims for damages to property or breach of contract.”).
116
In selecting Texas’s personal-injury limitations period, we note that Texas has
not adopted a general disability-discrimination law modeled on Title II or the
Rehabilitation Act. Texas does prohibit disability discrimination in employment and
housing, see TEX. LAB. CODE ANN. § 21.051; TEX. PROP. CODE ANN. § 301.025, but the
former is not analogous to Title II or the Rehabilitation Act as applied to this case, and
the latter is, in any event, subject to a two-year limitations period. See id. § 301.151(a).
117
See Wallace v. Kato, 549 U.S. 384, 388 (2007); Walker v. Epps, 550 F.3d 407,
414 (5th Cir. 2008).
118
Although it may be “theoretically possible for a statute to create a cause of
action that accrues at one time for the purpose of calculating when the statute of
limitations begins to run, but at another time for the purpose of bringing suit,” the

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when a plaintiff has “a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief.”119 In other words, accrual occurs “the
moment the plaintiff becomes aware that he has suffered an injury or has
sufficient information to know that he has been injured.”120
Drawing from the text of § 12132, an injury occurs (and a complete and
present cause of action arises) under Title II when a disabled individual has
sufficient information to know that he has been denied the benefits of a service,
program, or activity of a public entity. As applied to this case, the plaintiffs’
cause of action accrued when they knew or should have known they were being
denied the benefits of the City’s newly built or altered sidewalks. This accrual
date dovetails with the plaintiffs’ standing to sue. As discussed above, a disabled
individual has no standing to challenge an inaccessible sidewalk until he can
show “actual,” “concrete plans” to use that sidewalk.121 Only then is the
individual actually, as opposed to hypothetically, denied the benefits of the
sidewalk. But just as a plaintiff may not sue until he is actually deterred from

Supreme Court has admonished that we should “not infer such an odd result in the
absence of any such indication in the statute.” Reiter v. Cooper, 507 U.S. 258, 267
(1993). In other words, “[u]nless Congress has told us otherwise in the legislation at
issue, a cause of action does not become ‘complete and present’ for limitations purposes
until the plaintiff can file suit and obtain relief.” Bay Area Laundry & Dry Cleaning
Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997). We see no
indication in Title II or § 504 of the Rehabilitation Act that Congress intended the
plaintiffs’ cause of action to accrue before they could file suit.
119
Wallace, 549 U.S. at 388 (citations and quotation marks omitted); see also Bay
Area Laundry, 522 U.S. at 201.
120
Epps, 550 F.3d at 414.
121
Lujan, 504 U.S. at 564.

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using a newly built or altered sidewalk, so his complete and present cause of
action does not accrue until that time.
Although the City recognizes that “vague and conclusory allegations
related to disabled persons in general” are insufficient to support standing, the
City nonetheless asserts that the plaintiffs’ claims accrued as a matter of law at
the time the City built or altered its inaccessible sidewalks. The key point the
City fails to grasp is that a city’s wrongful act and a disabled individual’s injury
need not coincide. A city acts wrongfully when it builds an inaccessible sidewalk
without adequate justification, but a disabled individual is not injured until he
is actually deterred from using that sidewalk.
An example will help illustrate the point. Plaintiff Scott Updike did not
become disabled until September 8, 2003 (less than two years before his
complaint was filed). Updike was not denied access to the City’s inaccessible
sidewalks until he became disabled. Indeed, under our precedent, Updike could
not have sued to enforce Title II until he became disabled.122 Thus, regardless
of when the City built or altered its inaccessible sidewalks, Updike did not have
a complete and present cause of action under Title II, and his cause of action did
not accrue, until at least September 8, 2003.
Updike’s claims highlight a more general problem with the City’s theory
of accrual. Sidewalks are durable. If a disabled individual born two years and
a day after an inaccessible sidewalk is built has no right to sue, new generations
will be denied the benefits of that sidewalk simply because the city evaded
litigation in the past. On the City’s theory, the City could knowingly construct

122
See Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004)
(stating that plaintiff must demonstrate he is a qualified individual with a disability
as part of prima facie case).

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an inaccessible sidewalk yet escape liability as long as no plaintiff sued for two
years (and even if no plaintiff had standing to sue during those two years). We
do not think Title II contemplates this result. As Congress noted when it
enacted Title II: “historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to be a serious and
pervasive social problem.”123 The City’s theory of accrual would entrench and
reward the types of discrimination Title II was intended to eliminate.
The City asserts that if accrual occurs only when a plaintiff is actually
deterred from using a newly built or altered sidewalk, the City might be liable
for “unlimited potential municipal liability.” The City exaggerates. Our decision
is limited to injunctive relief concerning newly built and altered sidewalks.124
The City may avoid liability whenever it chooses simply by building sidewalks
right the first time, or by fixing its original unlawful construction. In other
words, the City is not liable forever; it is responsible only for correcting its own
mistakes. This is not too much to ask, even when the City’s mistakes have gone
unchallenged for two years.

123
See 42 U.S.C. § 12132(a)(2).
124
This case does not present the issue of money damages, and we do not reach
the issue. We have held, however, that money damages are available under Title II
and § 504 only for intentional discrimination. See Delano-Pyle, 302 F.3d at 575; cf.
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284 (1998) (finding that courts
have “a measure of latitude” to determine “when it is appropriate to award monetary
damages” for violations of Title IX of the Education Amendments of 1972). The class
of cases in which money damages will be available for inaccessible sidewalks thus
would appear to be small.

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As for the plaintiffs other than Updike, the City will have an opportunity
to prove that these plaintiffs knew or should have known they were being denied
the benefits of the City’s newly built or altered sidewalks more than two years
before they filed their claims. This is because the statute of limitations is an
affirmative defense that “places the burden of proof on the party pleading it.”125
Under federal pleading requirements, which we follow,126 a plaintiff is not
required to allege that his claims were filed within the applicable statute of
limitations.127
To be sure, a complaint may be subject to dismissal if its allegations
affirmatively demonstrate that the plaintiff’s claims are barred by the statute
of limitations and fail to raise some basis for tolling.128 A review of the plaintiffs’
complaint in this case, however, shows that there are issues of material fact as
to when the plaintiffs knew or should have known they were being denied the
benefits of the City’s newly built or altered sidewalks. The plaintiffs allege that
they were denied the benefits of the City’s sidewalks “[w]ithin the last two years,
if not also longer.” Although this allegation leaves open the possibility that some
of the plaintiffs’ claims may be barred by limitations, it does not plead the
plaintiffs out of their case. Construing the complaint in the plaintiffs’ favor, as
we must on a motion to dismiss, the plaintiffs allege that they encountered the

125
F.T.C. v. Nat’l Bus. Consultants, Inc., 376 F.3d 317, 320 (5th Cir. 2004); In re
Hinsley, 201 F.3d 638, 644-45 (5th Cir. 2000); FED. R. CIV. P. 8(c).
126
See TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 357 (5th Cir. 2008) (noting that
“federal law governs the pleading requirements of a case in federal court”).
127
See Simpson v. James, 903 F.2d 372, 375 (5th Cir. 1990).
128
Jones v. Bock, 549 U.S. 199, 215 (2007).

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inaccessible sidewalks within two years of their complaint. Because the statute
of limitations is an affirmative defense and not a pleading requirement, it is an
issue that must be resolved through discovery and summary judgment or trial.
V
For the reasons stated , we hold that the plaintiffs have a private right of
action to enforce Title II of the ADA and § 504 of the Rehabilitation Act with
respect to newly built and altered sidewalks. We further hold that the plaintiffs’
private right of action accrued at the time the plaintiffs first knew or should
have known they were being denied the benefits of the City’s newly built and
altered sidewalks. Accordingly, we VACATE the district court’s judgment and
REMAND for further proceedings.

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No. 08-10630

E. GRADY JOLLY, Circuit Judge, joined by JONES, Chief Judge, and SMITH,
GARZA, CLEMENT, OWEN, and ELROD, Circuit Judges, dissenting in part
and concurring in part:1

The provision of Title II that provides a private cause of action for its
enforcement reads:
Subject to the provisions of this subchapter, no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by
any such entity.
42 U.S.C. § 12132. Although the free-wheeling majority opinion seems to bury
the narrowness of the question presented in this case,2 the question is finally at
its narrowest and most specific:3 whether Title II of the ADA provides a private
cause of action4 to enjoin the City to modify its newly constructed or

1
This dissent challenges only the majority’s conclusion that a sidewalk constitutes a
service under 42 U.S.C. § 12132.
2
For example, the majority asks whether Title II applies to sidewalks. This broad
question is not the question before us, and demonstrates the majority’s lack of proper focus.
Title II does indeed address sidewalks: it refers to them in their capacity as transportation
barriers. Again, the appropriate question is whether Section 12132's reference to services
includes sidewalks.
In a similar vein, the majority contends that the ADA and the Rehabilitation Act are
broad statutes aimed at remedying discrimination against disabled individuals. This point
does little to aid our analysis concerning private rights of action to enforce the statute.
3
Although the issue in this case is now narrowly drawn, the conclusion that the
majority advocates leads to consequences beyond this case.
4
A private cause of action, of course, is not the only means of enforcing Title II. Title
II and the accompanying regulations make clear that local governments bear responsibility
in determining how best to make their services accessible, and that the Attorney General has
enforcement powers to ensure that the city’s chosen methods result in services being made
accessible. 42 U.S.C. § 12134; 28 C.F.R. § 35.101 et seq.

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reconstructed sidewalks; the resolution of the question depends on whether a
sidewalk is defined as a “service.”5
The vagueness of the statute and the imprecision of the regulations allow
a decision in this case to become complex and difficult. The choice presented by
the court today, however, is clear: the amorphous definition of service offered by
the majority or the textual definition that separates a facility from a service.
The statute implicitly classifies a noncompliant sidewalk -- not as a service -- but
as a transportation barrier and a facility, and the regulations specifically define
a sidewalk as a facility.
If one concludes, as the majority does, that somehow a sidewalk is a
“service,” then one concludes that the subject matter of a private cause of action
against a public entity under Title II is unlimited; if one concludes that under
the ADA a sidewalk is a public “facility,” and that an inanimate and static public

Indeed, according to its publications, the Department of Justice enforces the regulatory
requirements of Title II in a variety of ways, including through formal and informal settlement
agreements, mediation, and litigation. Enforcing the ADA: A Status Report from the
Department of Justice, Issue 2, at 2, available at http://www.ada.gov/aprjun10.pdf (last visited
May 18, 2011). In one particularly wide-ranging effort -- Project Civic Access -- DOJ enters
into agreements with municipalities, counties, and other like units of local government;
through this project, DOJ has investigated accessibility in all fifty states and beyond. Project
Civic Access, http://www.ada.gov/civicac.htm (last visited May 18, 2011).
Title II incorporates the remedies available under § 505 of the Rehabilitation Act, which
incorporates the “remedies, rights, and procedures set forth in Title VI of the Civil Rights Act
of 1964 for violations of § 504 of the Rehabilitation Act.” Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581, 590 n.4 (1999). The available remedies include “termination or denial of federal
funds.” Id.
5
The Rehabilitation Act applies only to programs and activities, but it defines these
terms as “all of the operations . . . of a local government.” 29 U.S.C. § 794. A sidewalk, which
is an inanimate, static piece of concrete, does not constitute an “operation.” Thus, we can
safely conclude that a sidewalk is neither a program nor an activity.

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facility is distinguishable from a public service, then a private cause of action is
thus limited to services and does not extend to facilities.
Finally, and with no apparent discomfort, the majority finds it necessary
to recast the issue that Richard Frame has stated for the en banc court.
Specifically, Frame states that the sidewalks he seeks to alter constitute a
service. The majority says it is not determinative whether a sidewalk is itself
a service, because the labor that produced the sidewalk is a service. The
majority, however, fails to recognize that the ADA provides a cause of action only
if a service is denied “by reason of” disability.
In other words, the majority’s alternative argument necessarily assumes
that the plaintiffs were denied access to the service of the city’s labor force on
account of their respective disabilities. This assumption ignores that the city’s
labor services are not accessible to the general population as a whole; that is to
say that no individual -- able bodied or disabled -- can commandeer the labor
force of a city to construct or reconstruct any facility, sidewalk or otherwise. In
short, neither facts, nor policies, nor law, supports granting the plaintiffs a right
of access to the city’s labor force.
For these reasons, and for the reasons that follow, I respectfully dissent.
I.
The bottom-line question presented for en banc consideration is whether
private plaintiffs generally have a cause of action to require the city to
reconstruct sidewalks built or repaired after January 26, 1992 (the effective date
of the ADA). The question is resolved by the following analysis.
First, Title II’s anti-discrimination provisions do not specifically provide
that a private cause of action may be brought against a municipality to enforce
ADA-compliant sidewalk construction or reconstruction. Second, although the

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regulations that accompany the ADA address sidewalk construction and
reconstruction, see 28 C.F.R. § 35.149-151,6 regulations are not privately
enforceable unless they effectuate a statutory mandate, because “private rights
of action to enforce federal law must be created by Congress.” Alexander v.
Sandoval, 532 U.S. 275, 286 (2001). That is, as applicable in this case, the
statute does not guarantee access to facilities, but only to “services, programs,
or activities.”

Third, the ADA mandates equal access to governmental services, and it
therefore provides a disabled individual with a private cause of action if he is
being effectively denied meaningful access to a service. See Alexander v. Choate,
469 U.S. 287, 301 (1985) (stating in the context of the Rehabilitation Act that a
benefit cannot be offered in a way that “effectively denies otherwise qualified
handicapped individuals the meaningful access to which they are entitled”).
Fourth, the question of whether the plaintiffs have a private cause of action to
enjoin the City to construct or reconstruct a sidewalk is resolved by determining
whether a sidewalk constitutes a service. Fifth, the ADA does not define
“service” in specific terms.
Sixth, turning to examine the statute and regulations for guidance, we see
that the statute suggests that sidewalks constitute either a barrier to
transportation, or a facility, or both. See 42 U.S.C. §§ 12131(2), 12146-12147.
Additionally, the regulations specifically define sidewalks as a “facility.” 28
C.F.R. § 35.104 (“Facility means all or any portion of . . . roads, walks, [and]

6
We follow the majority’s lead and cite to the regulations in place at the time the
plaintiffs petitioned for, and were granted, rehearing en banc. See Majority Op. at 16 n.51.

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passageways . . . .”) (emphasis added). Furthermore, the regulations draw a
distinction between services and facilities at the behest of Congress: DOJ is
required to model the relevant regulations after the “regulations and analysis
as in part 39 of title 28 of the Code of Federal Regulations[,]” see 42 U.S.C. §
12134(b), which differentiate “program[s] or activiti[es]” from “facilities.” 28
C.F.R. § 39.150.
Seventh, in the light of the statute and regulations, there is no mandate
for accessibility to facilities; on the other hand, there is the express mandate of
the statute and the regulations to universal accessibility of services, programs,
and activities. Stated differently, facilities are specifically excluded from the
access demands of the private cause of action provided in Section 12132.
Because a sidewalk is a facility -- not a service -- the sidewalk regulations are
privately enforceable only if an inaccessible sidewalk effectively denies a
disabled individual meaningful access to a public service. Although the majority
holds that the wheelchair-disabled have no rights of access to a sidewalk
constructed or last repaired before 1992, irrespective of whether that sidewalk
effectively denies a disabled person access to a city’s services, this dissent would
hold that if a noncompliant sidewalk effectively denies meaningful access to a
service available to the general public, there is a private cause of action.
II.
This dissent now moves to consider these points more fully. We begin by
again noting that the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of” public services. 42 U.S.C. § 12132.

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A.
Even though the statute does not explicitly define the term “services,” the
statute makes a few suggestions to aid our interpretation of the term.7 First,
Title II deals with “transportation barriers,” which include unfriendly sidewalks.
Specifically, a “qualified individual with a disability” is defined as a disabled
individual “who, with or without . . . the removal of architectural, . . . or
transportation barriers . . . meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities . . .” 42 U.S.C. §
12131(2) (emphasis added). Thus, we get some indication as to the meaning of
services by reference to what services are not. Obviously, the noncompliant
sidewalks are alleged by the plaintiffs to be barriers to transportation for the
wheelchair disabled. Consequently, it is plain that transportation barriers are
treated as barriers to accessing a service, and that sidewalks are not classified
as a service.
We are not alone in reaching the conclusion that transportation barriers
are distinguishable from services: the Supreme Court has held that the
necessary implication of Section 12131(2) is that in some circumstances, local
governments must “remove architectural and other barriers to [the] accessibility
[of judicial services].” Tennessee v. Lane, 541 U.S. 509, 531 (2004). Thus, if

7
The majority relies primarily on dictionary definitions to support its argument that
a sidewalk is a service. It is therefore somewhat peculiar that the majority relies on several
definitions that establish that sidewalks are not services. For example, the majority notes that
a service is “the performance of work commanded or paid for by another, or an act done for the
benefit or at the command of another.” Majority Op. at 12 (internal citations and quotation
marks omitted) (emphasis added). It must be obvious to the majority that a sidewalk neither
“performs work” nor “acts;” it is an inanimate object. Similarly, the majority’s argument that
a sidewalk “is the ‘apparatus’ that meets the public’s general demand for safe
transportation[,]” majority op. at 15, misses the point; there, the service is transportation, not
the facility of the sidewalk itself.

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transportation barriers, i.e., facilities, and services are coextensive as the
majority argues, the ADA requires local governments to “remove” services, i.e.,
transportation barriers, so that disabled individuals will have access to services.
This is the nonsensical reading that follows from the majority’s reasoning; we
should strive to avoid such absurdity. See Dunn-McCampbell Royalty Interest,
Inc. v. Nat’l Park Serv., 630 F.3d 431, 439 (5th Cir. 2011).
In sum: although Title II of the ADA does not define services in express
terms, it tells us that a service is not an inaccessible sidewalk, which is instead
treated as a facility that is a barrier to access of a public service.
B.
We continue to look to the statute for guidance on what a service is not,
but we now turn to Part B of Title II, which deals not with public services
generally, but with the specific subset of public transportation services. See
generally 42 U.S.C. §§ 12141-12165. Within this part, Congress required that
local governments make accessible their new and altered facilities, but only
those that are “to be used in the provision of designated public transportation
services . . .” 42 U.S.C. § 12146.8 Thus, as the majority concedes, the ADA
explicitly requires facilities to be made accessible in (and only in) “the unique

8
In this context,
“designated public transportation” means transportation (other than public
school transportation) by bus, rail, or any other conveyance (other than
transportation by aircraft or intercity or commuter rail transportation (as
defined in section 12161 of this title)) that provides the general public with
general or special service (including charter service) on a regular and continuing
basis.
42 U.S.C. § 12141(2).

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context of ‘designated public transportation services’ . . . .” Majority Op. at 17
(emphasis added).
Given that the statute requires that facilities be accessible to disabled
individuals only in this limited context, it is plain that, despite the majority’s
argument to the contrary, facilities are not merely a “subset of services.” See
Majority Op. at 29 (“DOJ has filed an amicus brief confirming that newly built
and altered sidewalks ‘are a subset of services, programs, or activities,’ . . . DOJ’s
amicus brief corroborates our own analysis . . . .”). I reiterate: under the ADA,
disabled individuals shall not “be excluded from participation in or be denied
the benefits of” public services. 42 U.S.C. § 12132. Thus, all services must be
made accessible in all contexts. Again, the primary implication of Sections
12146 and 12147 is that facilities need only be made equally accessible in the
specific and limited context of “designated public transit services.” Thus, because
facilities are not subject to the universal equal accessibility requirement, they
are not -- as the majority argues -- enfolded within the term services.
Moreover, relevant precedent teaches that when Congress included the
term “facilities” in Sections 12146 and 12147, it indicated that it had
purposefully excluded that term from the private cause of action included in
Section 12132. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.”) (alteration
in original); see also Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (“It is a
fundamental tenet of statutory construction that Congress intended to exclude
language included in one section of a statute, but omitted from another
section.”). Thus, we should reject the majority’s argument that the use of the

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term facilities in Sections 12146 and 12147 demonstrates that Congress
intended to include the term facilities in Section 12132.9
To sum up, Section 12132 provides a private cause of action when disabled
individuals are denied access to public “services, programs, or activities.” See 42
U.S.C. § 12132 (Requiring local governments to provide equal access to its
“services, programs, or activities . . . .”). The use of three -- and only three --
terms indicates the statute was intended to have a structured meaning.
Congress could easily have expressed its intent to prohibit local governments
from denying disabled individuals equal access to all “facilities, services,
programs, or activities.” It did not. Instead, it required that local governments
make their facilities accessible only in the context of transportation services.
Thus, the ADA, without explicitly defining the term services, identifies two
things that a service is not: a transportation barrier and a facility. Applying
those distinctions here, it seems that under the statute itself, a noncompliant
sidewalk is a transportation barrier and that sidewalks in general, are -- like
other static, inanimate, immobile infrastructure -- facilities.
III.
We now turn to the regulations to resolve any remaining doubt that
facilities are distinguishable from services.

9
The Rehabilitation Act further confirms that Congress purposely differentiated
facilities and services, as that Act provides the same distinction. See 29 U.S.C. § 794(c)
(“Small providers are not required . . . to make significant structural alterations to their
existing facilities for the purpose of assuring program accessibility, if alternative means of
providing the services are available.”) (emphasis added). It is unsurprising that the
Rehabilitation Act repeats the differentiation found in the ADA; as the majority points out,
the two statutes are interpreted in pari materia. See Hainze v. Richards, 207 F.3d 795, 799
(5th Cir. 2000).

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A.
Although the majority turns to the regulations hoping to smooth off the
rough incongruities of its statutory interpretation of “service” as unambiguous,
the regulations, for the reasons below, actually -- and compellingly -- suggest
that a sidewalk itself does not constitute a service.
First, the regulations define and designate a sidewalk as a “facility” -- not
as a “service, program, or activity.” 28 C.F.R. § 35.104 (“Facility means all or
any portion of buildings, structures, sites, complexes, equipment, rolling stock
or other conveyances, roads, walks, passageways, parking lots, or other real or
personal property . . . .”).
Second, the regulations mirror the statute and require that all services
shall be accessible to the disabled. 28 C.F.R. § 35.130(a) (“No qualified
individual with a disability shall, on the basis of disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any public entity.”).
Third, the regulations further provide that no disabled individual “shall,
because a public entity’s facilities are inaccessible . . . or unusable . . . be excluded
from participation in, or be denied the benefits of the services, programs, or
activities . . . .” 28 C.F.R. § 35.149 (emphasis added). Thus, under the
regulations, as under the statute, all services are mandated to be accessible, but
facilities, e.g., sidewalks, may remain inaccessible -- a crucial distinction that
tells us, contrary to the majority’s assertion, that facilities and services are two
distinctly separate categories under Title II. See 42 U.S.C. § 12132 (“[N]o
qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity . . . .”); see also 28 C.F.R. § 35.130 (“No

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qualified individual with a disability shall, on the basis of disability, be excluded
from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any public
entity.”). Stated differently, under Section 35.149, a city violates the law by
having inaccessible facilities only if those facilities deny disabled individuals
access to a service.
Fourth, the regulations further provide that a city is not “[n]ecessarily
require[d] . . . to make each . . . existing facilit[y] accessible to and usable by
individuals with disabilities.” 28 C.F.R. § 35.150.10 Indeed, a municipality is
granted the discretion to choose how best to make its services accessible;
“alteration of existing facilities and construction of new facilities” is merely one
potential method. 28 C.F.R. § 35.150(b)(1). Still further, if a city elects to
provide access to its services by making “structural change[s] to facilities[,]” that
city must “develop . . . a transition plan setting forth the steps necessary to
complete such changes[,]” and the plan must “include a schedule for providing
curb ramps . . . giving priority to walkways serving entities covered by the Act
. . . .” 28 C.F.R. § 35.150(d)(1)-(2). If sidewalks are -- as the majority urges --

10
“A public entity may comply with the requirements of this section through such
means as redesign or acquisition of equipment, reassignment of services to accessible
buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate
accessible sites, alteration of existing facilities and construction of new facilities, use of
accessible rolling stock or other conveyances, or any other methods that result in making its
services, programs, or activities readily accessible to and usable by individuals with
disabilities. A public entity is not required to make structural changes in existing facilities
where other methods are effective in achieving compliance with this section.” 28 C.F.R. §
35.150(b)(1) (emphasis added). The standard for new or altered facilities is more stringent:
each facility that is built after January 26, 1992 must be made “readily accessible,” and each
facility that is altered after that date must be made accessible “to the maximum extent
feasible.” 28 C.F.R. § 35.151(a)-(b). The question before us, of course, is whether these
requirements are enforceable through a private cause of action.

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services, one would abandon good sense to say -- as the regulations would then
say -- that local governments should focus their reconstruction efforts on services,
services that “serve entities covered by the Act” because the sidewalks would
themselves be “entities covered by the Act.”
Finally, the regulations require only that a city make newly constructed or
reconstructed sidewalks handicapped-accessible. 28 C.F.R. § 35.151. As we have
said more than once, all services of the city must be made accessible; if the
regulations characterized sidewalks a service, no sidewalk would be allowed to
be inaccessible. Section 35.151 is not privately enforceable unless it effectuates
a statutory mandate. Here, the statutory mandate, requiring accessibility for the
disabled, specifically omits facilities. “[P]rivate rights of action to enforce federal
law must be created by Congress.” Sandoval, 532 U.S. at 286. This principle
means that agencies, as well en banc courts, cannot “conjure up a private cause
of action that has not been authorized by Congress. Agencies may play the
sorcerer’s apprentice but not the sorcerer himself.” Id. at 291. Because -- as
discussed at length above -- the statute mandates access to services, not facilities,
Section 35.151’s requirements are not enforceable in a private suit, but instead
are left to other enforcement mechanisms as might be employed by the Attorney
General.
In short, the regulations expressly define sidewalks as facilities, not as
services. And, furthermore, by requiring that all services be made accessible,
while requiring facilities to be made accessible only in specific and limited
circumstances, the regulations are compelling that a facility -- such as a sidewalk
-- is not a service.

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B.
Nor is the regulatory distinction between “facilities” and “services” the
result of oversight, mistake, or confusion, but derives from congressional
mandate. Indeed, Congress directed that the regulations differentiate between
facilities and services.
The ADA -- statutorily and specifically -- requires that the DOJ regulations
regarding “‘program accessibility, existing facilities,’ . . . be consistent with
regulations and analysis as in part 39 of title 28 of the Code of Federal
Regulations.” 42 U.S.C. § 12134(b). The regulations at part 39 of title 28
implementing the Rehabilitation Act draw a distinction between facilities on the
one hand and programs and activities on the other. See 28 C.F.R. §§ 39.149-50.11
The majority would do well to understand this point: Congress was well aware
that the regulations implementing the Rehabilitation Act do not require facilities
-- unlike programs and activities -- to be accessible, and it dictated that the same
rule be made applicable to the ADA. See 42 U.S.C. § 12134(b).12
The statute further requires that the regulations regarding new and
altered facilities track the language from the “coordination regulations under
part 41 of title 28, Code of Federal Regulations . . . .” 42 U.S.C. § 12134(b). The
majority correctly argues that the “regulations that Congress sought to replicate
under Title II require new and altered facilities, including sidewalks, to be
accessible in most circumstances.” Majority Op. at 16 (emphasis added). The

11
Services are not addressed in these regulations because the Rehabilitation Act
applies only to programs or activities.
12
As an aside, it is unsurprising that the Rehabilitation Act does not require facilities
to be made accessible; as already noted, the Rehabilitation Act applies to operations, not to
inanimate objects. 29 U.S.C. § 794(b).

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majority’s wobble, i.e., “most,” proves the point. If facilities, i.e., sidewalks, are
services, they must be equally accessible in all circumstances, not in “most
circumstances.” 42 U.S.C. § 12132 (“[N]o qualified individual with a disability
shall . . . be excluded from participation in or be denied the benefits of the
services, programs, or activities, . . . .”) (emphasis added). Thus, the fact that,
pursuant to Congress’s direct instructions, the regulations require only that new
-- but not all -- facilities be accessible in most -- but not all -- circumstances again
suggests that “facility” is not a term that replicates the statutory term “service.”13
The clear mandate of the ADA is the unequivocal right of access to services,
programs, and activities, and Congress required that the regulations clarify that
this private right of action to demand access does not extend to facilities, a term
not mentioned in § 12132.
IV.
This dissent associates with impressive company in recognizing that the
statute and regulations, when read together, provide flexibility with respect to
facility repair, while requiring that all services be made accessible: the Supreme
Court and a distinguished circuit court of appeals have recognized that the

13
The majority seems to argue that the statute and regulations grant governmental
entities discretion such that they need not make some services accessible. This is a
misreading of the statute and the regulations as to accessibility of services, programs, and
activities. As discussed above, the statute itself provides no exception to access. Moreover,
although the regulations do, as the majority notes, grant a measure of relief to municipalities
that are able to demonstrate that providing access in a particular milieu will result in an
undue burden, the regulations further provide that the local government must, even after
making this showing, “take any other action that would not result in . . . such burdens but
would nevertheless ensure that individuals with disabilities receive the benefits or services
. . .” 28 C.F.R. § 35.150(a)(3). In other words, the local government must make the service
accessible; it may not be required to do so in the way that a private plaintiff deems most
appropriate.

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proper focus of the ADA is access to services, not access to facilities, and that
local governments are given discretion as how best to make services accessible.
A.
First, the Supreme Court has placed particular emphasis on the flexibility
granted to local governments under the regulations, saying that “a public entity
may comply with Title II by adopting a variety of less costly measures, including
relocating services to alternative, accessible sites and assigning aides to assist
persons with disabilities in accessing services.” Lane, 541 U.S. at 532. It is
worth reemphasizing the Court’s language: local governments may decide
whether, as a matter of policy, to “relocat[e] services to alternative, accessible
sites . . . .” See id. (emphasis added). This insight strongly suggests that
sidewalks are not services: Must the majority be told that sidewalks are not
likely to be relocated to another site?
Notwithstanding Lane’s suggestion that sidewalks are not services, the
majority insists that Lane supports its position that facilities are services, and
thus the plaintiffs here have a private cause of action even if sidewalks are
considered facilities. Majority Op. at 24 (“The Supreme Court’s use of DOJ's
regulations to illustrate the scope of Title II’s reasonable modification [of
facilities] requirement is a good indication that those regulations simply apply
Title II’s nondiscrimination mandate.”). This “good indication” is not at all what
Lane indicates. The services at issue in Lane, as the Court made clear, were
“judicial services”; for our purposes, the important point is that the Court never
so much as intimated that the facility -- that is, the courthouse -- was a service
at issue. 541 U.S. at 531. The courthouse was merely the means of accessing the
services related to legal matters offered by the government.

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It is easy enough to apply Lane’s explication of the regulations to sidewalks.
If a service is provided in a particular building, and that building is inaccessible
to the wheelchair disabled because of noncompliant sidewalks, the governmental
entity has various options. Among these: it might move the service to another
facility that is supported by accessible sidewalks, or it might repair the sidewalks
around the original building. The point is this: the local government is allowed
to decide how to address the issue of inaccessibility of a service, so long as it
provides some appropriate remedy. Thus, the Supreme Court has implicitly
recognized that because it is within the city’s discretion of how and when to
reconstruct existing facilities and infrastructure, facilities are not services, and
the statute therefore excludes this private cause of action.
B.
The First Circuit has also recognized that facilities are relevant in the ADA
context only in their capacity as a gateway to a service, and that the focus of the
ADA is on access to services, programs, and activities. See Iverson v. City of
Boston, 452 F.3d 94, 99-100 (1st Cir. 2006); Parker v. Universidad de Puerto Rico,
225 F.3d 1, 6-7 (1st Cir. 2000).14 In Parker, the court clarified the accessibility
requirements applicable to the Monet Garden, a site located within the Botanical
Gardens of the University of Puerto Rico, where the University provided the
service of hosting group events. 225 F.3d at 6. The court noted the regulatory
distinction between facilities and services, and said that Title II focuses on
“‘program accessibility’ rather than ‘facilities accessibility’ . . . to ensure broad

14
It is certainly true, as the majority eagerly points out, that several other circuits
have decided that private plaintiffs have a cause of action to enforce the ADA sidewalk
regulations, but the majority -- given its failure to acknowledge what the First Circuit has said
-- would apparently suggest that the viewpoint it urges is the only viewpoint among the other
circuits.

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access to public services, while, at the same time, providing public entities with
the flexibility to choose how best to make access [to services] available.” Id. The
court then noted that although the government was required to “provide at least
one route that a person in a wheelchair can use to” access the various ceremonies
hosted at the Monet Garden, the government was not required to reconstruct
“every passageway[.]” Id. at 7.
At least two other circuits have drawn a distinction between facilities and
services in the context of courthouse access for disabled persons. See Shotz v.
Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (“[Plaintiffs] allege that the
wheelchair ramps and bathrooms at the courthouse impede their ability to attend
trials . . . . A trial undoubtably is a service . . . within the meaning of § 12132.”);
Layton v. Elder, 143 F.3d 469, 473 (8th Cir. 1998) (“[I]f the county intends to
continue using the county courthouse to provide services . . . it must make . . . the
building accessible to individuals with disabilities . . . .”).
Notably, these holdings fit squarely within this dissent’s view of the statute
and the regulations. To reiterate, we should hold that private plaintiffs have a
cause of action when inaccessible sidewalks deny meaningful access to a public
service.
V.
Finally, we turn to address the majority’s attempt to reframe the issue
presented, and to thereby shift our focus from the actual sidewalks that the
plaintiffs seek to modify, to the labor services employed to construct those
sidewalks. Of course, this effort reflects the majority’s recognition that a static,
immovable, and inanimate piece of concrete is not a service -- not only in terms
of normal thinking, but as established by the statute, the regulations, and the
common definitions of the term. This argument has lately been advanced to the

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front lines of the majority’s interpretative theories, notwithstanding that the
plaintiffs stated the question in their en banc brief to be:
Whether the trial court, consistent with Congress’ intent,
Department of Justice (“DOJ”) interpretations, and numerous
precedents, correctly ruled that the sidewalks of Arlington, Texas are
a “service, program, or activity” within the meaning of Title II of the
ADA.
(Emphasis added).
Thus, the majority alternatively contends that even if concrete does not
constitute a service, “building and altering sidewalks are services, programs, or
activities . . . .” Majority Op. at 11 (emphasis added).
This alternative argument leaves unaddressed that, under Section 12132
the denial of the construction worker’s “service” must be by “reason of disability,”
that is, the disability must preclude access to the service of the labor of public
employees. Furthermore, the argument falsely assumes that the public generally
is provided access to commandeer the service of governmental employees. Here,
for example, the non-disabled citizens have no individual right to direct the
services of public construction workers to any construction project, including a
sidewalk. An illustration, which is perhaps apt to our understanding, is that
although the legal department of a city provides legal services in the public
interest and on public matters, those public services are not available to the
public at large and are not denied to the disabled by reason of their disability.
The majority vigorously contends, and we do not disagree, that Congress
passed the ADA with the aim of granting disabled citizens the same access to
public services that able-bodied citizens enjoy; but the majority does not contend
that the ADA provides disabled individuals with greater access to public services.
Plainly said, no citizen has access to a city’s labor force for the construction of a

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sidewalk. So, surely, any denial of access to the sidewalk construction crew
cannot be“by reason of . . . disability.”15
Thus, the majority is demonstrably incorrect when it insists that it does not
matter how broadly we analyze the statute. See Majority Op. at 12 (“[W]e believe
this case does not turn on how we frame the issue.”) The proper question is
whether a sidewalk is itself a service. The answer is that it is not.
VI.
From reading the majority opinion and this dissent, it is evident that the
statute has not been drawn with preciseness. Nevertheless, this dissent has
demonstrated that the statute itself differentiates services from facilities, and has
addressed sidewalks only as transportation barriers and facilities, but never as
a service. The regulations that implement the statute, however, define sidewalks
as a facility. Like the statute, these regulations never refer to sidewalks as a
service.
This dissent has thus shown that the majority errs when it conflates
services and facilities. This error is further demonstrated because the statute
and the regulations allow facilities to be inaccessible to the disabled in many
circumstances but require all services to be made equally accessible. Thus, a
proper reading of the statute makes clear that facilities and services are treated
with distinct and separate meanings. When the statute and regulations are
considered as a whole, it should be clear, except perhaps to the most intractable,

15
For the same reasons, we can safely reject the majority’s argument that the
Rehabilitation Act provides the plaintiffs with a private cause of action to seek access to the
services provided by the city’s labor force. See 29 U.S.C. § 794(a)(“No otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity . . . .”) (emphasis added).

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that Congress never intended for sidewalks to constitute a service, accompanied
by a private cause of action.
Finally, this dissent has shown the non-functionality of the majority’s
abstract argument that the labor construction services morph into the sidewalk
itself.
For the reasons stated above, I respectfully dissent. I would remand to
allow the district court to determine whether the plaintiffs can show that
particular sidewalks deny access to services that are not otherwise accessible.

59