Number range CHAPTERIN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

BARRIER BUSTERS, et al., )

)

Plaintiffs, )

) CASE No.: 02-203 E

)

v\. )

)

)

CITY OF ERIE, PENNSYLVANIA )

)

Defendants. )

)

**UNITED STATES\' MEMORANDUM IN SUPPORT**

**OF ITS MOTION FOR LEAVE TO PARTICIPATE AS [AMICUS
CURIAE]{.underline}**

**AND MEMORANDUM IN SUPPORT OF PLAINTIFFS' OPPOSITION TO**

**DEFENDANTS' MOTION TO RESTRICT PLAINTIFFS' ACTION**

**TO A TWO-YEAR PRE-FILING PERIOD**

[Introduction]{.underline}

Municipalities violate title II of the Americans with Disabilities Act
when they fail to install curb ramps during street and sidewalk
construction and alteration. In this case, plaintiffs allege, and
defendant admits, that numerous violations have occurred over several
years, both before and after the expiration of the statute of
limitations. Although curbs without ramps present a permanent barrier
and safety hazard to people with disabilities, the City of Erie
maintains that it should be relieved of any obligation to correct curbs
that were installed outside the two year statute of limitations.
Plaintiffs maintain that defendant should not be relieved of its
obligation to correct these curbs because these violations are related
and constitute a continuing violation of the Americans with Disabilities
Act.

The United States submits this memorandum in support of its Motion for
Leave to Participate as [amicus curiae]{.underline} and in support of
plaintiffs' opposition to defendant's Motion to Restrict Plaintiffs'
Action to a Two-Year Filing Period. For the reasons set forth below, the
United States requests the Court to grant its motion to participate as
[amicus curiae]{.underline} and to deny the defendant's motion.

[Background]{.underline}

The ADA requires all public entities to install curb ramps at
intersections where road construction and alterations are done and to
ensure that all curbs installed after January 26, 1992, are accessible
to and usable by persons with disabilities. 28 C.F.R. § 35.151(b) and
(e).[^1] On June 26, 2002, plaintiffs brought this suit to challenge the
City of Erie's practice of constructing, or altering city streets and
sidewalks without installing accessible curb ramps at affected
intersections. In its Answer, the city admits that, since 1992, it has
not completed "thousands of curb ramps" and has constructed others that
do not comply with regulatory standards. Answer at para. 4.
Notwithstanding this admission, the city has now filed a motion in which
it argues that plaintiffs' claims for acts occurring before June 26,
2000 are time barred because they fall outside the two year statute of
limitations period.[^2] The city thus seeks to have the Court relieve it
of its obligation to install or correct those curbs where violations
occurred between January 26, 1992, when the ADA went into effect, and
June 26, 2000. Defendant's Motion at 2.

[Argument]{.underline}

I. **[The United States Should be Permitted to Participate as Amicus
Curiae in this Action]{.underline}**

Title II of the ADA, 42 U.S.C. 12132, prohibits discrimination on the
basis of disability by public entities. One of the purposes of the Act
is "to ensure that the Federal Government plays a central role in
enforcing the standards established in this Act on behalf of individuals
with disabilities." 42 U.S.C. 12101(b)(3). As part of this
responsibility, the Department of Justice has, pursuant to statutory
directive, 42 U.S.C. § 12134(a), promulgated the regulation implementing
title II, found at 28 C.F.R. Pt. 35. The United States has a strong
interest in ensuring that the case law developed in private litigation
is consistent with its interpretation of the statute and the Department
of Justice\'s regulation.

The United States believes that this case raises an important issue: the
ability of private litigants to enforce state or local governments'
obligation to construct curb ramps. The ADA requires all public entities
to install curb ramps at intersections where road construction and
alterations are done and to ensure that all curbs installed after
January 26, 1992, are accessible to and usable by persons with
disabilities. 28 C.F.R. § 35.151(b) and (e). The attention to curb ramps
in the regulations reflects their importance in ensuring that
individuals with mobility impairments will be able to travel through
cities safely and independently. The Court of Appeals in *Kinney* has
emphasized how critical curb ramps are to the citizens of Pennsylvania:

The lack of curb cuts is a primary obstacle to the smooth integration of
those with disabilities into the commerce of daily life. Without curb
cuts, people with ambulatory disabilities simply cannot navigate the
city; activities that are commonplace to those who are fully ambulatory
become frustrating and dangerous endeavors. At present, people using
wheelchairs must often make the Hobson\'s choice between traveling in
the streets\--with cars and buses and trucks and bicycles\--and
traveling over uncut curbs which, even when possible, may result in the
wheelchair becoming stuck or overturning, with injury to both passenger
and chair.

*Kinney*, 9 F.3d at 1069.

The city asserts that it should be relieved of its obligation to install
or correct curbs where the construction or alteration occurred prior to
the statute of limitations, even though the lack of curb ramps creates
an ongoing barrier to access to persons with disabilities. This case
will be the first case in this Circuit addressing this important issue
and may affect many future cases alleging violations of title II of the
ADA. We have previously participated as [amicus]{.underline}
[curiae]{.underline} in *Deck v. City of Toledo*, 56 F. Supp. 2d 886
(N.D. Ohio W.D. 1999), in which the city of Toledo raised the defense
Erie seeks to raise here. The Court in *City of Toledo* rejected the
city's argument that acts occurring outside the limitations period were
time barred. 56 F. Supp. 2d at 893-94.

This case has considerable importance for private enforcement of the
ADA. The Department of Justice has limited resources and cannot address
every violation of title II of the ADA; private litigation is an
integral component of effective enforcement of the ADA. *See, e.g.*,
*Trafficante v. Metropolitan Life Ins. Co.*, 409 U.S. 205, 210 (1972)
(where Attorney General's ability to enforce civil rights law is
limited, "main generating force must be private suits in which
complainants act not only on their own behalf but also as private
attorneys general in vindicating a policy that Congress considered to be
of the highest priority."). It is important that private litigants not
be unduly limited in the relief they can achieve.

Given the strong interest of the United States in effective enforcement
of the ADA and the importance of this case to other private litigation
under the ADA, the United States requests that its motion for leave to
participate as [amicus]{.underline} [curiae]{.underline} on all issues
relating to the ADA be granted.

II\. **[The Defendant's Action Represents a Continuing Violation of the
ADA]{.underline}**

Plaintiffs allege that curb cuts were not installed, or were not
installed correctly, at intersections constructed or altered by the City
of Erie between 1992 and 2002. Complaint at paras. 11- 17. The city
admits that it has failed to complete "thousands of curb ramps" and that
others are in need of repair or do not meet regulatory standards. Answer
at para. 4. This pattern of repeated and related violations constitutes
a continuing violation; plaintiffs' cause of action would not be
time-barred so long as at least one of the violations occurred within
the statute of limitations.

In *Havens Realty Corporation v. Coleman*, plaintiffs alleged "racial
steering" in a suit under the Fair Housing Act. Although only one of the
five alleged incidents was timely, the Supreme Court held that all of
the incidents were actionable. The Court explained,

> We agree with the Court of Appeals that for purposes of § 812(a), a
> "continuing violation" of the Fair Housing Act should be treated
> differently from one discrete act of discrimination. Statutes of
> limitations such as that contained in § 812(a) are intended to keep
> stale claims out of the courts. Where the challenged violation is a
> continuing one, the staleness concern disappears.

*Havens Realty Corp. v. Coleman*, 455 U.S. 363, 380 (1982). Thus, "
where a plaintiff challenges not just one incident of conduct violative
of the Act, but *an unlawful practice* that continues into the
limitations period," the complaint is timely." *Id.* at 381. (emphasis
added).

The Court of Appeals for the Third Circuit recognizes the continuing
violation doctrine. The court held in *Cowell v. Palmer Township*, 263
F.3d 286 (3d Cir. 2001):

> when a defendant's conduct is part of a continuing practice, an action
> is timely so long as the last act evidencing the continuing practice
> falls within the limitations period; *in such an instance, the court
> will grant relief for the earlier related acts that would otherwise be
> time barred*. (Emphasis added)

*Cowell*, 263 F.3d at 292, *citing* *Brenner v. Local 514, United Bhd of
Carpenters and Joiners of Am*, 927 F. 2d 1283, 1295 (3d Cir. 1991). In
*Cowell*, the Court set forth three factors that must be considered in
determining whether there has been a continuing violation: "(1) subject
matter - whether the violations constitute the same type of
discrimination, tending to connect them in a continuing violation; (2)
frequency - whether the acts are recurring or more in the nature of
isolated incidences; and (3) degree of permanence - whether the act had
a degree of permanence which should trigger the plaintiff's awareness of
and duty to assert his/her rights and whether the consequences of the
act would continue even in the absence of a continuing intent to
discriminate." *Id.*

All three factors are present here. The first two factors are met
because road and sidewalk repairs have been on-going for ten years; the
attendant failure to install curb cuts, or to install them correctly, is
the same violation repeated year after year. *See, e.g., Brenner*, 927
F.2d 1283 (NLRA)(3d Cir. 1991)(claim that union retaliated against
certain members for 13 years, including during the limitations period,
by refusing to refer them for jobs, is "continuing course of conduct"
that is not time barred); *Wright v. O'Hara*, 2002 WL 1870479 (E.D. Pa.
2002) (harassment of prisoner over period of years not time barred where
some harassment occurred in limitations period). *See also Deck v. City
of Toledo*, 56 F. Supp. 2d 886, 893-94 (N.D. Ohio W.D. 1999) (numerous
failures to properly construct curb ramps, including violations in the
limitations period, constitute continuing violation). With regard to the
third factor, the process of altering roads is not a discrete act that
will trigger an awareness in a citizen that he must take legal action.
In a city such as Erie, there are hundreds, if not thousands, of roads,
and unless a citizen happens to observe the road crew, it is impossible
to know whether -- or when -- a city street was altered. Indeed, to hold
that each construction or alteration is an isolated incident that
triggered the statute of limitations, would create an absurd result,
effectively placing the burden on plaintiffs to follow road crews around
to make sure they were properly installing curb ramps. Such a reading
would allow the city to benefit from years of knowing, discriminatory
policies and practices.

To hold that the city's on-going practice of failing to install curb
ramps is a continuing violation is fully consistent with *Brenner*,
where the Court of Appeals for the Third Circuit held that there was a
continuing violation when a labor union refused to refer certain union
members for jobs. The practice continued from 1979-86, with many of the
incidents occurring outside the limitations period. The court did not
view each failure to refer as an isolated incident. Instead, the court
held "the allegation of a continuing course of conduct constituting a
violation of the union's duty of fair representation is sufficient to
warrant the application of the continuing violation theory to
plaintiffs' claims." 927 F.2d at 1296.

Applying *Brenner* to the City of Erie's repeated failure to construct
curb ramps, demonstrates that the continuing violation doctrine is
warranted here. As in *Brenner*, the plaintiffs' claims allege a
"continuing course of conduct" that recurred over a long period of time:
the City of Erie has continually violated the alterations and new
construction requirements of title II by failing to install curb cuts
(or installing them incorrectly) when the city did construction or
alteration on roads and sidewalks. These same violations allegedly
occurred both before and after the date on which the individual claims
may have ordinarily been time-barred. As such, they represent a
continuing violation and none of these claims are barred by the
applicable statute of limitations.

The continuing violation theory also supports the broad remedial purpose
of the ADA. In *Havens Realty Corporation*, the Court noted that:

> Petitioners' wooden application of \[the statute of limitations\],
> which ignores the continuing nature of the alleged violation, only
> undermines the broad remedial intent of Congress embodied in the
> \[Fair Housing\] Act.

455 U.S. at 380.

Similarly, when a municipality regularly constructs inaccessible curbs,
it would frustrate the purpose of title II of the ADA to require persons
with disabilities to constantly monitor local street resurfacing
projects and then bring suit for each violation independently in order
to satisfy the statute of limitations. This difficulty this would impose
on persons with disabilities would be compounded by the fact that
information about street improvement projects may not be readily
available to the public, and, as in this instance, available only from
the entity which seeks to evade its legal obligation.

Recognizing the continuing violation theory is important here because
title II is broad remedial legislation designed to correct a long
history of discrimination by public entities. In enacting the
predecessor of title II, Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794, Congress recognized that society has historically
discriminated against people with disabilities. The sponsors of that
legislation condemned the \"invisibility of the handicapped in
America,\" and introduced bills responding to the country\'s \"shameful
oversights\" that caused individuals with disabilities to live among
society \"shunted aside, hidden, and ignored.\" [Alexander]{.underline}
v. [Choate]{.underline}, 469 U.S. 287, 296 (1985). Almost twenty years
later, Congress recognized that the Rehabilitation Act had not met the
\"compelling need \... for the integration of persons with disabilities
into the economic and social mainstream of American life,\" S. Rep. No.
116, 101st Cong., 1st Sess. 20 (1989), and enacted the ADA \"to continue
to break down barriers to the integrated participation of people with
disabilities in all aspects of community life.\" H.R. Rep. No. 485
(III), 101^st^ Cong., 2d Sess. 49-50 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 472-473.

The need for remedial legislation is particularly important when basic
physical access is at issue. Without a curb cut, a person with a
mobility impairment may be simply unable to access the adjoining
sidewalk and may be denied any goods and services provided in that
space. Lack of curb cuts may also present a serious safety hazard to a
person with a mobility impairment who cannot seek refuge from vehicular
traffic by accessing a sidewalk. The legislative history of the ADA
supports the proposition that the elimination of architectural barriers
such as curbs is among the most basic and fundamental purposes of the
statute. The House Education and Labor Committee report recognized that
\"\[t\]he employment, transportation, and public accommodation sections
of \[the ADA\] would be meaningless if people who use wheelchairs were
not afforded the opportunity to travel on and between the streets.\" H.
R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at 84 (1990).[^3]
Accordingly, \"local and state governments are required to provide curb
cuts on public streets.\" [Id.]{.underline} Accord *Kinney*, 9 F.3d at
1069 and [supra]{.underline} at 4 ("lack of curb cuts is a primary
obstacle to the smooth integration of those with disabilities into the
commerce of daily life"). This laudable legislative purpose is
undermined where, as here, state and local governments could disregard
their obligation to build accessible curbs -- and get away with it --
unless their efforts were continually monitored by persons with
disabilities who were prepared to run into court after each violation.

The United States believes that these important public policy concerns
strongly counsel for recognizing a continuing violation exception to a
statute of limitations defense where, as here, the city has failed, year
after year, to install curb ramps.

[Conclusion]{.underline}

For the foregoing reasons, the United States respectfully urges the
Court to grant its Motion for Leave to Participate as Amicus Curiae and
to deny defendant's motion to limit relief only for those acts that
occurred since June 26, 2000.

JOHN ASHCROFT

Attorney General

RALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

MARY BETH BUCHANAN

United States Attorney

Western District of Pennsylvania

JESSICA LIEBER SMOLAR

Assistant United States Attorney

Western District of Pennsylvania

633 U.S. Post Office and Courthouse

Pittsburgh, PA 15219

\(412\) 644-5890

PA ID No. 65406

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOHN L. WODATCH, Chief,

PHILIP L. BREEN, Special Legal Counsel

> ALLISON J. NICHOL
>
> LAURA F. EINSTEIN
>
> United States Department of Justice

Civil Rights Division -NYA

950 Pennsylvania Avenue NW

Washington, DC 20005

\(202\) 514-9583 (Einstein)

[^1]: 1 ^1^ 28 C.F.R. 35. 151(b) states that "each facility or part of a
    facility altered by, on behalf of, or for the use of a public entity
    in a manner that affects or could affect the usability of the
    facility or part of the facility shall, to the maximum extent
    feasible, be altered in such manner that the altered portion of the
    facility is readily accessible to and usable by individuals with
    disabilities." Facility is defined to include walks and passageways.
    28 C.F.R. 35.104. 35.151(e) states: "Newly constructed or altered
    streets, roads and highways must contain curb ramps or other sloped
    areas at any intersection having curbs or other barriers to entry
    from a street level pedestrian walkway."\
    \
    The Court of Appeals for the Third Circuit, in *Kinney v.
    Yerusalim*, 9 F.3d 1067, 1075 (3d Cir.1993), *cert. denied sub nom.,
    Hoskins v. Kinney*, 511 U.S. 1033, 114 S.Ct. 1545, 128 L.Ed.2d 196
    (1994) held that the resurfacing of the city streets can be an
    alteration within the meaning of 28 C.F.R. 35.151(b) and thus must
    be accompanied by the installation of curb ramps under 28 C.F.R.
    35.151(e).

[^2]: 2 ^2^ Title II does not include a statute of limitations for
    private actions. Therefore, the court must look to state law and
    apply the statute of limitations for the most analogous state law
    claim unless doing so would be inconsistent with federal law. See
    *Goodman v. Lukens Steel Co.*, 482 U.S. 656, 660-64 (1987). The
    parties in the lawsuit agree that in Pennsylvania the applicable
    statute of limitations is the two year limitations period for
    personal injury. *See, e.g.*, *Estrada v. Trager*, 2002 WL 31053819
    (E.D. Pa. 2002)(two year statute of limitations for personal injury
    claims applies to ADA and Section 504). *See also Cowell v. Palmer
    Township*, 263 F.3d 286 (3d Cir. 2001) (same for actions brought
    under Section 1983). The United States takes no position with
    respect to the correct statute of limitations that is applicable to
    this case.

[^3]: 3 ^3^ The installation of curb ramps is important not only for
    persons in wheelchairs but also for ambulatory persons with mobility
    impairments, such as those who use walkers and crutches.