good afternoon in may it please the court i'm characterization i represent mr stephen hayes well established under the law that when a case is presented before a court and some of the claims are timely and some of the claims are untimely the proper response by the district to proceed with the good claims and to leave the band under the americans with disabilities act the statutes prohibit exclusion or denial on the basis of disability here mr stephen hamer was excluded and denied decided to essentially decide this case on the narrowest possible grounds and then it said there was legal precedent so if that's an issue remaining it is in fact an issue remaining if if we agree with you and say  sidewalk or service and there are number of other issues that still have to be deciding this case various defenses that have been asserted by the defendant so there's still a long way to go in this case and but the ultimately the america to believe act prohibits exclusion prior to filing suit it says there were quote a original act of discrimination but the text of the statute is very clear that it prohibits exclusion or denial of access and so that's really the main question here today is what is the unlawful act under the americans with disabilities act and what is appropriate conduct well apart from that question isn't there a preliminary question about whether the continuing violation doc would apply i don't necessarily is i think what's happened is that there's been some confusion with the language of the word the continuing violation doctrine could well mr hammer saying is that each time he is excluded or denied access to the sidewalk each time  it and the end tomorrow i do it the next day i do it i still can't access it does that mean that the statute of limitations would never expire because well every day i try to  instances of exclusion or denial in the first six months ok so those first six months those damages are out so the answer is yes i can see damages are going to be limited to a two year period right and only as to  exclusion or denial caused in that two year period and so that's one thing that if if you had damages that were caused by the earlier instances of exclusion or denial those would still be out so so although there's a case that the defense brought up the road case on that and unpublished case and in that case the individual he was excluded in two thousand and six through the spring of two thousand and seven right and then he filed student august of two thousand and nine but he had a surgery in two thousand and eight and he said well it's a continuing violation a continued to be harmed but he filed suit two years in four months after the last instance of exclusion or denial so the fact that he felt damages  injuries later in a matter because he was the last instance of exclusion or denial was more than two years old and that's exactly what we're saying here is that it's an ongoing violation of law and each time that mr it's possible you know it's enough to get a summary judgment and that's what we're saying is that each day a sensually on he's being excluded because that he goes you can use the site you have to go in the street or you know he's a risk of falling out of his  mobility scooter because you know there are large potholes there's huge huge bricks in the way those sort of things and so there is evidence that he has suffered exclusion and the tenure how did the district court look at this and how was the  barrier and can't do what he wants to do that triggers a two year sets of them attentions correct and that he has to file suit immediately and if he ever encountered that barrier for the rest of his life he's forever you know if  doing that that will never be occurring but if you can then you can be sued now if you if you wait to more than two years in colorado you can't sue over that specific instance of exclusion or cannot but if it happens multiple times it happens once a pollutants and the issue under the clean air act is whether or not i need a permit operate my facility and let's say i need to get a permit before i admit pollutants and out i don't affirmative obligation versus something that is a building code or something about a fact because they're the obligation is to it's to install the filter for example or to get a permit or to get the permit and if you if you just say there's a violation of the stop say excluding but there the prohibited act is not having the permit here the prohibited act is literally the exclusion of mr hammer or the exclusion of the individual with a disability each time you are excluded then you  a fully understand why it would be a different answer that for those two scenarios the different answer is that you have a one time obligation to get a permit and with you don't have that permit in the statute of limitations starts to run that so it's a one time the one time and so you're an environmental group you've got to catch them within two years of three years or whatever it maybe versus eighty eight which is continuously you have to accommodate all and so that kind of leads also to a major point which is when you refer literally doing a wrong again and by excluding him denying him access and not allowing him to use the sidewalks and so we can draw parallels from the fact that he have to show that he's been excluded or denied access anyone and he'd have to either he or was excluded and dyed axes in the two years prior to filing suit and that's the point that the seventh and the ninth circuit were making in the picture in the sherrod case because they were dealing with title three title three is very different like title three says that you can have an injunction for any person who is being subjected to discrimination on the basis of disability as in the present since it's an ongoing violation much like what took place in work with hos can exclude individuals based on their disability and that this is a continuous obligation it's not a one time thing and you walk away and you're done if you have it obligation i'd like to reserve  good morning may it please the court my name is marty nathan cluster and along with my colleague nicholas poppy is our pleasure to represent the city of trinidad at mcmaster the issue in this a pill can easily be distilled down to the following mr hammer had of that siri what do we do with that argument why i think there's two components one has to do with the substance right of whether sidewalks or service which as my colleague mentioned was not decided by the district court  because the court decided the more limited issue of statute of limitations but even if it were a service which our contention is it's not then under statute of limitations when you had knowledge of that violation you statute begins to run and the evidence was undisputed that mr hammer had knowledge in april of two thousand and fourteen he went before the city council on numerous occasions and he filed a complaint with the department of justice and in that complaint he specifically described the curb cuts and sidewalk issues which formed the basis of this lawsuit is thereby saying he had knowledge of his allegation he was being denied meaningful lack of every access issue a separate cause of action i don't know that we have a definitive precedent on that but what we do have here is the fact that there is no specific violation or event that occurred within the two years prior to suit being filed in october two thousand and sixteen the evidence that summary judgment was undisputed about that and the district court specifically acknowledged that in its order that even if this court chose to decline to issue a decision on the greater question of can you apply a continuing violation theory to a title to claim under the a b a you don't even have to get that far in this case because there is no specific sidewalk there is no specific access point that mr hammer pointed to at any point in the two years prior to filing suit all of his examples occurred prior to his complaint to the department of justice deposition on that thursday i tried to access location b and could not get through the day i'm continuously denied access because i can't move around the city i think general like during the course of his deposition he had a  montra being denied meaningful access and being denied meaningful access now what was the specific denial the date it occurred on and where it occurred which is what's required for there to be an actual event right for purposes of standing an injury is not something that he could ever point to despite the opportunity to do so in his complaint in written discovery requests in deposition in summary judgment and on appeal there's limitation would have he would have testified at a deposition within the two year study that was in the lights limitations period that he was down by the mcdonald's on march thirteenth and some date within the limitations period they tried he needed to get process in the end of april he goes to the department of justice and says we're being denied meaningful access in a wide variety of circumstances and he itemizes everything that he contends has happened and he told the city council i believe the he contended in all of the city of trinidad he had been through already in his short tenure that were in violation so in this case he had knowledge by his own admission he had knowledge in april and i think that would be hard pressed to find a get up on the sidewalk by mcdonald's and didn't do anything about it and then two years later he went and tried to dig in and he still couldn't get up on the sidewalk does he have a claim manors it too late because the first time he tried it he couldn't get up and he should have complained them i think i under a number of the cases it would be too late because whether he shouted from the rooftops i've been denied access and i couldn't get out he still had the civic knowledge that he could not use for the same playing it will be the only way that you have also the n c a a and it's there for a reason too and that requires the student to provide access and that is a continuing duty and the city is providing access mr hammer as in the record the civically admitted that he has access to all city building that he's had access to all city parks that there is not been a location that the city has control of that he cannot get it may not be in the most efficient route that he would like but he can still get to those locations and the city as set forth in the record is already spending more than a million dollars working on remediation but turnabout is a hundred plus year old city and money can only go so far and is only available in so many circumstances and working in consultation with the department of justice they have come up with a list and they are making slow and steady progress through that list but  so that that they knew it april when he stood up at the council meeting and complained about these things and let's assume that trinidad is spending millions of dollars to remediate these curves arguing i think more elegantly than i put it that there is in effect every time he tries to do to excess occur a separate equivalent of b b can be beaten up sidewalks maybe others might require multiple areas where they can access in order for it to be there but even beyond that under your theory if every day is a new wrong then there isn't a statute o table in which case the morgan case which the physically by the supreme court indicated that we are going to continue to have statute of limitations and that there is this very subjective cases where we shouldn't and we should be able to have the idea was that the employer could have sued sponsored i mean if i apply for a promotion and i'm denied that's if they have that is not that the repeated moral it's a discrete event that is not that nature repetitive and that's the only event that was isolated is not limitations it could be five years later and someone's lack of promotion puts them at a lower level and therefore not available for other training opportunities promotions and salary increases it's no different than here we have the the is that we have the sense in april of two thousand and fourteen it's the impact or the injury that he's claiming continues and that's no different than in the morgan case where the court said the continuing violation doctrine does not apply it should only be applied when you have to have a series of these that in order that when you look at them in combination show that there is this hostile work environment pattern so with morgan as the example you need to show pervasive and one small comment or look may it really you know does the continuing violation doctrine really matter in light of your contention that he never specifically identified a single time he couldn't or location where he couldn't go  i would agree your honor i don't think you need to get to the continuing violation it's undisputed there's a two year statute of limitations it's undisputed that mr hammer contends that the incident occurs in april of two thousand and fourteen but doesn't file suit until the end of october two thousand and sixteen that's two and a half years he's six months too late so we have to look at these depositions now like to see what he did assert that is his denial of oxalis and when it occurred and the courts summary judgment order because she talked about that specifically in even referenced discussing during oral argument she discusses in her order about talking to mr de roos about if i don't apply the continuing violation i mean isn't it enough to say i'm handicapped i can't get to the grocery store i haven't been able to get the negotiates or since i moved here twenty years ago and i still can't get to the grocery store do i need to say on tuesday at four a went to the curb at the corner of fourteenth and tenth street and i couldn't access that only to say that to this i think they need to prove an actual specific violation that they came across and suffered in the timeframe of the statute of limitations cases i think there's a couple of cases that are helpful i think the foster court said it nicely when it said the continuing violations doctrine is an equitable exception to a strict application of the statute of limitation where the conduct complained  prior events should have alerted a reasonable person acting teeming violations very well not overcome or rolled in statute of limitations i think those two courts said it probably better than i can in that regard about why it's once you had noted and in here that was in april and suit was not timely filed thank you your honor we request you affirm the district court decision point was that he pointed out in various testimony that he's been exposed to all of them many times before and has exposed them many times before during the two years and the argument that counsel just brought up that we didn't point out specific in and that should be enough to allow so if we look at the record according to you we're going to see some specifics as to when violations might have occurred i don't know about specifics of when but i'm what i'm saying those pages have instances of where where and he testified that i point out in my home random that he was exposed to these every every day for the last two and a half years i mean under the the ball standards i mean don't you have some duty to plead that but that really wasn't the reason i was dismissed was mostly because he couldn't point to any specific new violations within the two you know i understand that i'm just i'm just concerned that a generalized complaint might not be sufficient and it sounds like maybe we're dealing with a complaint that's generalized about the city as a whole and not one that's directed at specific