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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDELL DECKER, and SCOTT UPDIKE,
Plaintiffs, v. THE CITY OF ARLINGTON, TEXAS,
Defendant.

§ § § § § CIVIL ACTION NO. 4:05-CV-0470-Y § § § § §

DEFENDANT CITY OF ARLINGTON’S THIRD RENEWED RULE 12(b)(6) MOTION TO DISMISS PLAINTIFFS’ CLAIMS

TO THE HONORABLE JUDGE OF SAID COURT: Defendant City of Arlington, Texas (“Defendant”) files this third renewed motion to
dismiss Plaintiffs’ claims, pursuant to Fed. R. Civ. P. 12(b)(6) and this Court’s Order Amending Initial Scheduling Order, dated April 12, 2007, because notwithstanding the changes and additions made in Plaintiffs’ Third Amended Complaint, filed October 18, 2006, Plaintiffs have failed to state a claim upon which relief may be granted and Defendant is entitled to dismissal of Plaintiffs’ claims. In support hereof, Defendant respectfully shows the Court the following:
I. INTRODUCTION AND PROCEDURAL HISTORY Plaintiffs filed this action on July 22, 2005. See Court’s Docket. After being served, Defendant filed, as its initial pleading, Defendant City of Arlington’s Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims and Brief, on August 22, 2005. Id. In response, Plaintiffs’ First Amended Complaint was filed on September 12, 2005, pursuant to Fed. R. Civ. P. 15(a). Id. Plaintiffs also filed a response to Defendant’s dismissal motion urging that, because of the

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amended pleading, Defendant’s Rule 12 motion was moot. Id. The Court denied Defendant’s Rule 12 motion as moot by Order, dated September 15, 2005. Id.
The parties conferred, pursuant to the Court’s Order to Submit Joint Status Report and Proposed Discovery Plan, dated August 24, 2005, and thereafter submitted and filed the Parties’ Proposed Discovery Plan and Joint Status Report on September 23, 2005. Id. The parties simultaneously filed an agreed stipulation concerning Plaintiffs’ desire to file a second amended complaint, and the stipulation also specified the timing of Defendant’s response thereto, on September 23, 2005. Id. Plaintiffs’ Second Amended Complaint was filed on October 20, 2005, and Defendant City of Arlington’s Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims was filed on November 4, 2005, the deadline agreed to in the parties’ stipulation. Id. Plaintiffs’ Response to Defendant’s Renewed Motion to Dismiss, and Plaintiffs’ Corrected Response to Defendant’s Renewed Motion to Dismiss, were filed on December 15 and 16, 2006, respectively. Id. Defendant’s Reply to Plaintiff’s Response to Defendant’s Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims was filed on January 6, 2006, and Defendant’s Supplemental Authority Regarding Pending Rule 12(b)(6) Motion to Dismiss was filed on July 7, 2006. Id.
On July 31, 2006, the Court’s Order Denying as Moot Motion to Dismiss and Directing Amended Complaint (“Court’s Order”) was entered, ordering Plaintiffs to file a third amended complaint, and thereby mooting Defendant’s pending motion to dismiss. See Court’s Order, pp. 2-3. The Court’s Order further provided that, upon Plaintiffs’ filing a third amended complaint, Defendant may file another motion to dismiss. Id. After Plaintiffs requested additional time, which the Court denied by Order Denying Motion for Extension of Time, dated October 17, 2006, Plaintiffs’ Third Amended Complaint was filed on October 18, 2006. Defendant City of Arlington’s Second Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims was filed
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pursuant to the Court’s Order and as a result of the Plaintiffs’ Third Amended Complaint’s failure to state a cognizable claim, on October 30, 2006. See Court’s Docket.
The Parties thereafter participated in Court-ordered mediation and settlement discussions, during which time the parties jointly requested a stay of all proceedings during those discussions; the Court granted the parties’ stay requests. See Court’s Docket.1 During the stay period, the Court dismissed Defendant’s renewed dismissal motion without prejudice, and without ruling on the merits presented in said motion, providing that such a motion may be re-filed if the case does not settle. Id. At the conclusion of the stay and after receiving the parties Joint Report on Settlement Negotiations, filed April 11, 2007, the Court’s Order Amending Initial Scheduling Order, dated April 12, 2007, was entered, establishing updated deadlines for events to occur in this case (including, at p. 2, the deadline for filing Defendant’s responsive pleading to Plaintiffs’ current complaint). Id.2 This motion is therefore filed pursuant to the Court’s order.
II. CASE BACKGROUND Plaintiffs’ Third Amended Complaint is ostensibly brought pursuant to 28 U.S.C. §§ 1331 and 1343; Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, and ADA regulations provided in 28 CFR Part 35, specifically, 28 CFR §§ 35.149-35.151; and § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq. (the “Rehabilitation Act”), complaining of Defendant’s alleged intentional discrimination against Plaintiffs and all persons with disabilities in the City of Arlington. See Plaintiffs’ Third Amended Complaint, pp. 1-5. Defendant has not yet answered in this case, and instead hereby files this
1 As a result of the stay of proceedings, Plaintiffs did not file a response to Defendant’s second renewed motion to dismiss. See Court’s Docket. 2 The Court’s Order Amending Scheduling Order references “Plaintiffs’ second amended complaint,” obviously taking its cue from the reference made in the Joint Report on Settlement Negotiations, filed April 11, 2007, at p. 2. Defendant apologizes for that incorrect reference by the parties; there is no dispute that the current live pleading is Plaintiffs’ Third Amended Complaint, to which this motion is directed. See Court’s Docket. DEFENDANT CITY OF ARLINGTON’S THIRD RENEWED RULE 12(b)(6) MOTION TO DISMISS PLAINTIFFS’ CLAIMS – Page 3

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third renewed motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Court’s Docket. This motion is filed to address Plaintiffs’ allegations against Defendant in light of various statutory defenses and pleading deficiencies that exist in Plaintiffs’ Third Amended Complaint.
Plaintiffs make allegations of egregious conduct against Defendant under the ADA. Despite those allegations, Defendant understands, complies with, and embraces the important public policy considerations that form the basis for the ADA and the Rehabilitation Act. The City of Arlington does not intend to discriminate against anyone on the basis of race, gender, national origin, sexual orientation or disability. The need to determine whether Plaintiffs have alleged any viable intentional discrimination causes of action in this case is of paramount importance, however; if a cause of action is alleged, then Defendant is entitled to, and by this motion requests the Court to, provide definition and clarification to such cause(s) of action. This is a crucial and necessary first step in formulating Defendant’s defensive response to this case of first impression in the Fifth Circuit. As pleaded, Plaintiffs’ Third Amended Complaint seems to allege that Defendant’s ADA obligations are unlimited under the law. As set forth herein and in the brief accompanying this Motion, the deficiencies that exist in Plaintiffs’ Third Amended Complaint instead mandate dismissal of Plaintiffs’ claims as a matter of law.
III. GROUNDS FOR DISMISSAL The grounds upon which this Motion is based are: 1. The applicable statute of limitations either bars Plaintiffs’ discrimination claims in their entirety, or the statute limits Plaintiffs’ claims to only those events that occurred within two (2) years prior to the filing of this lawsuit, and Plaintiffs’ revised allegations in their Third Amended Complaint do not remedy this defect. 2. Plaintiffs lack legal standing to bring this lawsuit to allege discrimination on behalf of disabled persons in general, to complain of non-specific acts of alleged discrimination,
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to complain generally under Section 504 of the Rehabilitation Act that Defendant’s general receipt of federal funding triggers court review, to bring suit against Defendant’s transition plan and self-evaluation, or to complain of Defendant’s alleged violation of other regulations.
3. Plaintiffs’ allegations fail to assert that the City has discriminated against them: a. Plaintiffs have failed to allege facts that indicate a sufficient alteration to
existing facilities to trigger ADA scrutiny. b. Sidewalks and other facilities in the public rights-of-way are not a
program, activity or service under the ADA, and there are no existing accessibility standards.
c. Alternatively to the preceding issue, if there is such an obligation to perpetually maintain, construct, or retrofit all sidewalks in the City, then such a finding renders the ADA and Rehabilitation Act unconstitutional.
d. There are no viable ADA or Rehabilitation Act claims to complain of Defendant’s transition plan and self-evaluation actions, to complain of Defendant’s paratransit waivers and releases, or to complain of Defendant’s alleged violation of ADA regulations. As set forth in Defendant’s Brief filed concurrently with this Motion, these issues should be granted in Defendant’s favor, rendering Plaintiffs’ Third Amended Complaint subject to dismissal as a matter of law for its failure to state a viable claim of intentional discrimination, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
IV. CONCLUSION The City of Arlington remains committed to following and complying with the ADA, the Rehabilitation Act, and its implementing regulations. It has followed those important laws since Congress passed them so many years ago. Plaintiffs’ Third Amended Complaint seeks to impose
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Case 4:05-cv-00470-Y Document 86 Filed 04/30/07 Page 6 of 7 PageID 794 substantially greater burdens upon the City than are required by law, however, in a manner that would be unreasonable and that would create potentially unlimited liability. This Motion presents important issues that warrant certification to the Fifth Circuit Court of Appeals under 28 U.S.C. 1292(b), if this Court does not grant Defendant’s motion and dismiss Plaintiffs’ Third Amended Complaint. Defendant has advised Plaintiffs, through their counsel, that it will be requesting such appellate relief in this matter, if necessary. Based upon the argument and authority presented in the Brief accompanying this Motion, such appellate relief should not be necessary at this stage of the case. This Court should dismiss this case because the allegations of intentional discrimination in Plaintiffs’ Third Amended Complaint fail to state a claim under existing jurisprudence.
WHEREFORE, PREMISES CONSIDERED, Defendant City of Arlington, Texas, prays that the Court grant this Motion and dismiss Plaintiffs’ claims against it, and Defendant prays for such other and further relief to which it is justly entitled.
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Respectfully submitted,
By: /s/ Edwin P. Voss, Jr. Kent S. Hofmeister State Bar No. 09791700 Edwin P. Voss, Jr. State Bar No. 20620300
BROWN & HOFMEISTER, L.L.P. 740 East Campbell Road, Suite 800 Richardson, Texas 75081 214-747-6100 (Telephone) 214-747-6111 (Telecopier)
Denise V. Wilkerson Assistant City Attorney State Bar No. 20534100
City of Arlington P.O. Box 90231 Arlington, Texas 76004-3231 817-459-6878 (Telephone) 817-459-6897 (Telecopier)
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of this document was served by certified
mail, return receipt requested, upon Mr. John M. Nevins, Moseley Law PC, 3878 Oak Lawn
Avenue, Suite 400, Dallas, Texas 75219-4469 (Plaintiffs’ local counsel), and upon Messrs.
Miguel M. de la O and Charles D. Ferguson, De la O, Marko, Magolnick & Leyton, 3001 S.W. 3rd Avenue, Miami, Florida 33129, lead counsel for Plaintiffs, on the 30th day of April, 2007, in
addition to service provided by the Court’s ECF procedures.
By: /s/ Edwin P. Voss, Jr. Edwin P. Voss, Jr.
DEFENDANT CITY OF ARLINGTON’S THIRD RENEWED RULE 12(b)(6) MOTION TO DISMISS PLAINTIFFS’ CLAIMS – Page 7

 
 Case 4:05-cv-00470-Y Document 94 Filed 08/09/07 Page 1 of 52 PageID 911

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDELL DECKER, §

SCOTT UPDIKE, JUAN NUNEZ, a minor, §

by his next friend and mother,

§

GABRIELA CASTRO, MARK HAMMAN §

and JOEY SALAS,

§

§

Plaintiffs,

§

§

v.

§

§

THE CITY OF ARLINGTON,

§

a Municipal Corporation,

§

§

Defendants.

§

Civil Action No. 4-05CV-470-Y

FOURTH AMENDED COMPLAINT1 Plaintiffs, RICHARD FRAME; WENDELL DECKER; SCOTT UPDIKE; JUAN NUNEZ, a minor, by his next friend and mother, GABRIELA CASTRO; MARK HAMMAN; and JOEY SALAS (collectively, the “Plaintiffs”); sue Defendant, CITY OF ARLINGTON, and allege: 1. On July 26, 1990, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., was enacted and established the most important civil rights law for people with disabilities in our country’s history. Congress explicitly stated that among the purposes of the ADA are:
A. “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,”

1 The Fourth Amended Complaint includes three (3) additional plaintiffs: Juan Nunez, a minor, by his next friend and mother, Gabriela Castro, in new paragraphs 21 and 27; Mark Hamman, in new paragraphs 22 and 28-29; and Joey Salas, in new paragraphs 23 and 30-31. No other substantive changes have been made.

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B. “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” and C. “to provide the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people--e with disabilities.” 42 U.S.C. § 12101(b). 2. In passing the ADA, Congress identified some 43,000,000 Americans as having one or more disabilities. 42 U.S.C. § 12101(a)(1). Congress found that, historically, society 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. 42 U.S.C. § 12101(a)(2). 3. Congress also found that discrimination against individuals with disabilities persists in such critical areas as housing, institutionalization, and access to public services. 42 U.S.C. § 12101(a)(3). 4. The ADA has a clear and comprehensive nationals mandate to eliminate discrimination against individuals with disabilities and to establish clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1)(2). 5. To further ensure a comprehensive and uniform federal law, the ADA preempts state and local laws unless those laws provide protection for the rights of individuals with disabilities that is greater than, or equal to, the protection afforded by the ADA. 42 U.S.C. §§ 12131-12134; 28 C.F.R. §§ 35.101, et seq.

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6. The City of Arlington (“Arlington”) has discriminated against the Plaintiffs by failing to properly install or maintain curb ramps where sidewalks intersect with vehicular ways, when resurfacing, repairing, and/or altering city streets and/or sidewalks in violation of the ADA. Certain intersections in Arlington either have no curb ramps whatsoever, or contain non-compliant curb ramps that constitute a hazard when persons with mobility impairments attempt to travel between sidewalks and streets.
7. Arlington has also discriminated against the Plaintiffs by failing to maintain accessible pedestrian rights-of-way as required by the ADA. For example, many sidewalks contain abrupt vertical changes in level violations, excessive cross slopes, and/or protruding objects which make travel dangerous if not impossible for the mobility impaired. This failure prohibits people with mobility impairments from being able to travel safely and independently along such pedestrian rights-of-way within Arlington.
8. Arlington has also discriminated against the Plaintiffs by failing to provide a sufficient number of handicap parking spaces or fully compliant handicap parking spaces in certain public facilities described infra.
9. The Plaintiffs in this action challenge Arlington’s failure to properly design and install curb ramps when constructing, resurfacing, or altering city streets and sidewalks, as well as Arlington’s failure to provide program access to pedestrian rightsof-way. These actions are in violation of the ADA, and Section 504 of the Rehabilitation Act of 1973, which require public entities and entities receiving federal funds to provide equal access to public services for the disabled.
10. The Plaintiffs in this action also challenge Arlington’s failure to maintain accessible routes along the City’s pedestrian rights-of-way in violation of the ADA, and

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Section 504 of the Rehabilitation Act of 1973, which require public entities and entities receiving federal funds to provide equal access to public services for the disabled.
11. Plaintiffs include individuals with mobility impairments who require the use of a wheelchair or motorized scooter to travel along pedestrian rights-of-way. Such use requires compliant curb ramps so Plaintiffs can use the pedestrian rights-of-way to travel to and from their desired destinations of travel without being required to travel in streets often against oncoming traffic, and/or traverse over hazardous and unsafe curb ramps. In order to have the safe and navigable use of sidewalks in Arlington, Plaintiffs also require properly maintained pedestrian rights-of-way that are free from abrupt vertical changes in level of over ¼ inch (1/2 inch if the change in level is beveled). Plaintiffs also require the removal of dangerous and excessive cross slopes and obstacles or protruding objects that narrow and prohibit the path of travel.
12. This action also challenges Arlington failure to provide proper curb ramps at all streets and roadways under the control and responsibility of Arlington including but not limited to, city owned streets and county and/or state roadways within Arlington for which Arlington has maintenance responsibilities.
13. The action also challenges Arlington’s failure to properly maintain pedestrian rights-of-way under the responsibility and control of Arlington, including but not limited to sidewalks and crosswalks serving city owned streets and county and/or state roadways with Arlington for which Arlington has maintenance responsibilities. Many, if not all, of the streets at issue, including relevant portions of Abram, Border, Bowen, South, and Mesquite, were substantially resurfaced, reconstructed, repaved, and otherwise altered by or on behalf of Defendant either within the last two years or after 1992.

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JURISDICTION AND VENUE 14. This action is brought by the Plaintiffs to enforce Title II of the ADA, 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 C.F.R. part 35, as well as § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701, et seq. (“the Rehabilitation Act”). 15. This Court is vested with original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as the events complained of occurred within this district and division.
THE PARTIES 17. Arlington in a Texas municipal corporation which has been given the authority to install, repair, and maintain streets and sidewalks within Arlington, including the installation, repair and maintenance of curb ramps. Arlington is a public entity within the meaning of Title II of the ADA, which is defined as any state or local government or any department or agency of a state or local government. 42 U.S.C. § 12131(1)(a)-(b). 18. Plaintiff Richard Frame (“Mr. Frame”) resides at 6209 Arrowwood Drive in Arlington, Texas, and travels within Arlington to conduct business and/or other routine daily activities as further described infra. Mr. Frame is a quadriplegic and requires the use of a motorized wheelchair to navigate within Arlington. Mr. Frame is an individual with a disability under the ADA. 19. Plaintiff Wendell Decker (“Mr. Decker”) resides at 1312 Redbud Drive in Arlington, Texas and travels within Arlington to conduct business and/or other routine daily activities as further described infra. Mr. Decker has diabetic neuropathy and is required by prescription to limit his driving time and walking distance. Mr. Decker

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requires the use of a motorized wheelchair to navigate within Arlington. Mr. Decker is an individual with a disability under the ADA.
20. Plaintiff Scott Updike (“Mr. Updike”) resides at 6700 Paces Trail #911, Arlington, Texas, and travels within Arlington to conduct business and/or other routine daily activities as further described infra. Mr. Updike is a quadriplegic and requires the use of a motorized wheelchair to navigate within Arlington. Mr. Updike is an individual with a disability under the ADA.
21. Plaintiff Juan Nunez (“Juan”), a minor of thirteen years of age, resides with his next friend and mother, Gabriela Castro (“Ms. Castro”) at 3301 Steeplechase Trail, Arlington, Texas, and travels within Arlington to conduct business and/or other routine daily activities as further described infra. Juan has Duchenne Muscular Dystrophy (DMD) and requires the use of a motorized wheelchair to navigate within Arlington. Juan is a qualified individual with a disability under the ADA.
22. Plaintiff Mark Hamman (“Mr. Hamman”) resides at 2709 Serenade Court, Arlington, Texas, and travels within Arlington to conduct business and/or other routine daily activities as further described infra. Mr. Hamman has been a long-time paraplegic who recently had rotator cuff surgery so that he is currently tri-plegic. He requires the use of a motorized wheelchair to navigate within Arlington. Mr. Hamman is a qualified individual with a disability under the ADA.
23. Plaintiff Joey Salas (“Mr. Salas”) resides at 419 Summit Avenue #106 in Arlington, Texas, and travels within Arlington to conduct business and/or other routine daily activities as further described infra. Mr. Salas has cerebral palsy and requires the use of a motorized wheelchair to navigate within Arlington. Mr. Salas is a qualified individual with a disability under the ADA.

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FACTS COMMON TO ALL COUNTS 24. Within the last two years, if not also longer, the Plaintiffs have been unable to travel safely on Arlington’s sidewalks and streets without curb ramps or properly installed curb ramps because of the use of motorized wheelchairs. Within the last two years, if not also longer, the Plaintiffs have been unable to travel safely on Arlington’s pedestrian rights-of-way because many sidewalks are not properly maintained, contain abrupt vertical changes in level violation, excessive cross slopes, and/or contain obstructions from protruding objects. Curbs and poorly maintained sidewalks are major obstacles to persons who use wheelchairs. The front wheels are sensitive to obstacles, and any non-compliant change in level, crack or slope can impede the progress of a wheelchair, damage a wheelchair, or increase the possibility of overturning a wheelchair and seriously injuring its passenger. 25. The Plaintiffs have traveled on and will continue to travel on the pedestrian rights-of-way within Arlington which either contain no curb ramps or unsafe curb ramps due to improper design, installation, construction, and/or maintenance and sidewalks which contain abrupt vertical changes in level violations, excessive cross slopes, and/or protruding objects which make travel dangerous if not impossible for the mobility impaired. 26. The Plaintiffs live in Arlington and frequently travel within Arlington to conduct business and other routine daily activities. They are frequently denied the full and equal use and enjoyment of Arlington’s pedestrian rights-of-way while conducting daily activities. Their ability to live within their home community is negatively impacted by the inaccessible sidewalks, lack of curb ramps and/or non-compliant curb ramps, which include streets and sidewalks primarily in close proximity to their home and

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beyond. As a result, they are forced to engage in difficult and/or risky dangerous travel in order to reach certain destinations. The difficulty lies in the fact that they often must take longer routes to avoid access barriers that non-disabled persons can easily overcome. The danger lies in the fact that they are often forced from sidewalks onto busy streets where they must negotiate through vehicular traffic. Once in the street, they are often inhibited from regaining access to sidewalks due to intersections with no curb ramps and/or non-compliant curb ramps that are either too steep and/or contain excessive vertical changes in level violations at their transition base.
27. Juan travels independently in his motorized wheelchair. Every day, for example, he goes to Young Junior High School on 3200 Woodside Drive in Arlington. On information and belief, Juan encounters violations of the ADA along the public rights of way in Arlington. For example, Juan travels to Martin High School on 4501 W. Pleasant Ridge Road in Arlington – his future full-time school. (Juan is presently active in the school choir and performs there.) He should be able to travel on existing sidewalks to get there and not in the middle of streets with traffic. Woodside Drive has the sidewalk that will take him to W. Pleasant Ridge Road, but it is missing curb ramps, e.g. at the intersection of Woodside Drive and W. Mayfield Road. In addition, approximately twice per week, Juan visits his aunt and her son (who is also in a wheelchair). Juan should be able to travel independently to their house near the intersection of Woodside Drive and W. Arkansas Lane, but since there is no sidewalk on Steeplechase Trail, he is forced to travel in the street. Due to his mobility impairment, he is unable to jump out of the way of oncoming traffic or to walk on the grass. To protect him, Ms. Castro is forced to travel alongside him in a vehicle so he does not get sideswiped or struck by traffic. Juan does go independently to his cousin’s school,

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however, at least once per year for carnivals and other open-house events. To arrive at Dunn Elementary School, on 2201 Woodside Drive in Arlington, Juan travels north on Woodside Drive, but finds no curb cuts north of West Arkansas Lane to allow him to get up on the existing sidewalk. Juan must travel in the street with vehicular traffic when all others may simply step up onto the sidewalk. Juan has frequented these locations regularly within the past two (2) years, if not longer.
28. When Mr. Hamman leaves his house, he travels on California Lane, which is characterized by commercial, residential, and municipal areas. Mr. Hamman votes at Short Elementary School on 2000 California Lane, and has difficulty with the excessive slope of the eastern curb ramp at the entrance to the school. Mr. Hamman would love to visit the park that is in proximity to the school, and the nature preserve, together with his son; however, he is denied access due to a lack of curb cuts. Another problem is that the sidewalks along California Lane are not contiguous, e.g. several areas provide a sidewalk that simply stops in the middle of a neighborhood block. Another type of non-contiguous sidewalk is found on the northern side of California Lane across from Short Elementary School: a wheelchair user must travel from the sidewalk to the noncompliant surface of a gravel driveway to get out onto the street, must move approximately 15 feet together with vehicular traffic, and drive up another driveway to reach the sidewalk again.
29. In the past two years, if not longer, Mr. Hamman has traveled to various destinations in proximity to California Lane to which he has the intent to return, such as the commercial areas of Cooper Street in the east and S. Bowen Road in the west, and he has personally encountered a multitude of ADA violations along the way. Numerous utility poles are located directly in the middle of sidewalks on California Lane; sidewalks

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that are no wider than 36 inches. Due to the obstructions, the sidewalks are effectively off-limits to people in wheelchairs. Arlington also installs many support cables in the middle of sidewalks with the same result: inaccessibility for the wheelchair user. Many areas along California Lane have excessive cross slope violations, and many areas have excessive vertical changes in level. A non-exclusive list of other specific violations follow:
A. California Lane and Monties Lane. Southeastern curb cut is too narrow, approximately 24-26 inches. Southwestern sidewalk has excessive cross slope.
B. California Lane and Westchester Drive. No curb cuts are found. C. California Lane and Duther Drive. No curb cuts are found. D. California Lane and Fox Hill Drive. No curb cuts are found. E. California Lane and Avon Hill Drive. No curb cuts are found. F. California Lane and Canongate Drive. No curb cuts are found. G. California Lane and Inniswood Circle. Excessive cross slope is found. H. California Lane and Monterey Street. No curb cuts are found. I. California Lane and S. Fielder Road. No curb cuts are found except for the southwestern corner. The other corners show newly poured concrete, but no curb cuts were provided to make the intersection accessible. J. California Lane between S. Fielder Road and Monterey Street. Noncontiguous sidewalks are found. K. California Lane just east of S. Fielder Road. Electrical box is found in the middle of the northern sidewalk.

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L. California Lane and Medin Drive. No curb cuts are found. 30. Mr. Salas is a student at the University of Texas at Arlington (“UTA”) and is active in the downtown area. Mr. Salas has frequented the locations described below regularly within the past two (2) years, if not longer. He uses his motorized wheelchair to cover a wide span of the city within the four corners of Bowen Road to the west, State Road 360 to the east, Interstate 30 to the north, and Interstate 20 to the south. Regular destinations in Arlington include: Allumed, 2004 E. Randol Mill Road; Rangers Ballpark, 1000 Ballpark Way; Wal-Mart, 915 E. Randol Mill Road; Elron’s Cost Plus, 550 W. Randol Mill Road; Kroger’s, 301 S. Bowen Road; Guaranty Bank, 100 E. Abram Street; and the Parks Mall, 3811 S. Cooper Street. Mr. Salas travels to these destinations and many others in his wheelchair since he has no other mode of transportation; he travels on average 8 miles every day. For example, Mr. Salas travels to Allumed, where he gets his wheelchair serviced, approximately once every 1-2 months, usually by traveling east on UTA Boulevard, then north on West Street, then east on W. Front Street, then north on either Mesquite Street, Elm Street or East Street, then east on W. Rogers Street, then north on N. Collins Street, then east on E. Randol Mill Road and past Ballpark Way to his destination. (Neither Mesquite, Elm nor East streets have any sidewalks, but he drives on those roads to avoid Collins Street due to its lack of compliant sidewalks and heavy traffic on the road. Collins Street has, for example, noncontiguous sidewalks, so rather than risk riding a wheelchair in traffic, Mr. Salas has been forced to ride on non-compliant grass surface and uneven ground.) On numerous trips in Arlington, Mr. Salas has personally encountered ADA violations, and/or has actual notice of the violations and purposely avoids them. The ADA violations include, but are not limited to:

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A. UTA Boulevard, on both sides of the street, has street signs that obstruct and narrow the width of the sidewalk to less than the required minimum of 36 inches. B. E. Copeland Road and Ballpark Way. E. Copeland Road has sidewalks but no curb cuts. C. W. Randol Mill Road and N. Oak Street. No curb cuts are found on the south side of the intersection. On the north side, a utility pole is found in the middle of the sidewalk surrounded by newly poured concrete. D. Randol Mill Road and N. Center Street. New concrete has been poured where a curb cut was removed from the southeast intersection. On the northern side of the intersection, curb cuts exist to cross Randol Mill Road but no curb cuts exist to cross Center Street. E. E. Randol Mill Road and Mesquite Street. Southeast corner is covered in a non-compliant surface of dirt and grass. F. E. Randol Mill Road and Thannisch Drive. Curb cuts are missing and there is a utility pole in middle of sidewalk. G. E. Randol Mill Road and Web Street. No curb cuts are found on the south side of the intersection. H. E. Randol Mill Road and Roosevelt Street. No curb cuts are found on the north side or the south side of the intersection. I. E. Randol Mill Road and Collins Street. This intersection is adjacent to the new Dallas cowboy football stadium. There is a signal pole and signal control box in middle of the sidewalk on the southwest corner of the intersection. The signal control box obstructs the curb

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ramp’s clear landing. The sidewalk on the east side of Collins Street is narrowed to a width of 9 to 21 inches in places due to construction. Arlington provided no temporary right of way. Further east on E. Randol Mill Road, Mr. Salas has not been able to reach the pedestrian push buttons from the sidewalk at various intersections. J. E. Division Street and Truman Street. Car dealerships position their barriers over the public sidewalk, obstructing it. On the north and south sides of the intersection, utility poles also block the sidewalk. In the northwestern corner, access to the curb ramp is blocked by a pole, a stop sign, a fire hydrant and the car dealership barrier. In the northeastern corner, the curb ramp has excessive slope. There is construction in various locations along Division Street and no temporary accessible path of travel is provided. There is also excessive cross slope over many areas of Division Street. K. E. Division Street and East Street. No curb cuts are provided. L. E. Division Street and Mesquite Street. The southeastern corner sidewalk has non-compliant surface with excessive vertical changes in level and excessive slope. M. E. Division Street and Elm Street. The NW and NE corners have no curb cuts and the car dealership barriers obstruct the sidewalk. N. E. Division Street and Center Street. The curb cuts on the north side of the intersection are non-compliant. O. Division Street between Center Street and Cooper Street. Division Street has many obstructions (poles) in the middle of the sidewalk, the

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sidewalks have areas of excessive cross slope, and the intersections lack curb cuts or have extremely noncompliant curb cuts, especially on the north side. The non-compliant intersections are: Pecan Street, Oak Street, L. Robinson Drive, West Street, Indiana Street/Jerry Crocker Street, Terry Lewis Street, and Taylor Street. The intersection of Division Street with West Street has a hole on the corner that prevents Mr. Salas from being able to reach the pedestrian push button. 31. Mr. Salas is often prevented from arriving at his destination by more than architectural barriers. The police have been called regularly, approximately twice per month, to get him off the street. The only reason he has been in the street is because of a lack of accessible sidewalks. While he was on E. Copeland Road near Ballpark Way, he was stopped by four police officers, a fire truck and an ambulance on or about May 12, 2007. One of the police officers thought he was drunk and was going to arrest him until a firefighter intervened and told the officer that Mr. Salas had cerebral palsy. Insulted, Mr. Salas was forced to arrange for transportation to his residence. All of that could have easily been avoided. E. Copeland Road does indeed have a sidewalk- just no curb cuts. Mr. Salas has been hit twice by vehicular traffic, on or about November 12, 2005 and March 19, 2006. On both occasions he received major physical injuries from which he still suffers pain and a decreased ability to live independently. 32. Several important destinations for Mr. Frame include, but are not limited to, the Medical Center of Arlington, Arlington Memorial Hospital, and the downtown area of the City of Arlington. When Mr. Frame travels to these destinations he is driven by his caretaker in a van. On several occasions within the last two years, Mr. Frame had a test performed at these hospitals and was instructed to come back in approximately two

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hours. Because it is difficult to find van-accessible parking at businesses in the surrounding areas, Mr. Frame has left his van parked in the hospital parking lot and attempted to travel on the surrounding public rights-of-way areas in his motorized wheelchair. However, regardless of which medical district Mr. Frame has traveled in, he encounters numerous access barriers on the surrounding public rights-of-way areas.
33. Mr. Frame visited Medical Center of Arlington on several occasions during 2004. These dates include, but are not limited to, August 13, 2004, August 6, 2004, and January 22, 2004. During these visits while awaiting test results and additional testing, Mr. Frame attempted to travel to nearby medical supply stores, restaurants such as Café Pulidos, a barbershop for a haircut, Vandergriff Park, and Central Imaging of Arlington. In order to reach these destinations, Mr. Frame has attempted to travel on the sidewalks adjacent to Omega, Mayfield, and Matlock Road. However, the sidewalk adjacent to Mayfield between Matlock Road and Hospital Drive has several cracks and major indentations reducing the sidewalk to 25 and 31 inches prohibiting the path of travel for a wheelchair user. There are also several abrupt vertical changes in level that are at least 1.5 inches and several excessive non-compliant cross slopes ranging between 5.1% and 6.5%. Continuing further, the curb ramp at Hospital Drive and Mayfield has an excessive non-compliant running slope of 11.3%. The curb ramp on the northeast corner of Mayfield and Matlock Road has an excessive non-compliant running slope of 17%.
34. On information and belief, the portion of Mayfield that runs in front of Medical Center of Arlington has been altered or resurfaced after the 1992 effective date of the ADA. Portions of the sidewalk have also been altered or redone in this area within ten (10) years of Plaintiffs’ initial complaint. A curb ramp was redone or poured in

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this area within three (3) years of Plaintiffs’ initial complaint, and the curb on the other side was never addressed.
35. Mr. Frame may also travel to the above-named destinations by riding his wheelchair on the sidewalk adjacent to Matlock Road. However, when Mr. Frame has attempted to travel on the Matlock Road sidewalk, he has fared no better. Several noncompliant cross slopes ranging between 6.1% and 9.5% exist near the main handicap entrance where the sidewalk intersects with driveways. The curb ramp at Omega and Matlock Road next to the Vandergriff Park entrance has an excessive non-compliant running slope of 5.9% and cross slope of 7.7%, along with a utility pole obstruction prohibiting the path of travel for a wheelchair user. Further along the Matlock Road sidewalk in front of Vandergriff Park, the sidewalk has many areas containing excessive non-compliant cross slopes ranging 4.1% to 5.4%. Finally, the curb ramp in front of the Texas Department of Human Services has an excessive non-compliant running slope of 21%, and an excessive vertical change in level of 2 inches at its transition base, along with another obstruction prohibiting the path of travel for a wheelchair user. On information and belief, several other sidewalks and curb ramps within close proximity to the above described areas also have similar access violations.
36. On information and belief, the portion of Matlock that runs adjacent to Medical Center of Arlington has been altered or resurfaced after the 1992 effective date of the ADA. Portions of the sidewalk in this area have also been altered or redone in this area within five (5) to ten (10) years of Plaintiffs’ initial complaint.
37. The Arlington Memorial Hospital district has been another important destination for Mr. Frame. On information and belief, in the Arlington Memorial Hospital area described below (¶¶ 30 - 32), Randol Mill Road has been altered, or resurfaced

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within ten (10) years prior to Plaintiffs’ initial complaint. On information and belief, the sidewalks on both sides of Randol Mill Road in this area have large portions that have been reconstructed, altered, or resurfaced within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location.
38. On or about September 29, 2003, after having minor outpatient surgery at Arlington Memorial Hospital, Mr. Frame attempted to navigate the surrounding public rights-of-way areas located on Randol Mill Road. When attempting to reach another Central Imaging of Texas location on Randol Mill Road, Mr. Frame encountered many of the same types of access violations as described supra.
39. The public sidewalks on both sides of Randol Mill Road have many intersections with either non-compliant curb ramps or no curb ramps at all. The sidewalks also contain numerous obstructions prohibiting the path of travel for wheelchair users, including tree stumps and brand new utility poles. On information and belief, several other sidewalks and curb ramps within close proximity to the above described areas also have similar access violations.
40. On or about December 18, 2004, when again attempting to reach the Central Imaging of Texas location on Randol Mill Road, Mr. Frame encountered many of the same barriers to access as previously described.
41. The Arlington Memorial Hospital district around Randol Mill Road is also an important destination for Mr. Decker. Mr. Decker often travels to the 7-11 store located on Randol Mill Road and must also travel to Arlington Memorial Hospital three times a week for cardiac rehabilitation exercises. Quite often, there are no available handicap parking spaces in the hospital parking lot. In addition, driving is something that has become increasingly difficult and will continue to worsen for Mr. Decker over

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time. As an option, because Mr. Decker lives within one (1) mile of the hospital, he would like to have the full benefit and use and enjoyment of Arlington’s public rights-ofway to access Randol Mill Road in order to reach Arlington Memorial Hospital. However, due to the access violations described supra, Decker is prohibited from traversing the sidewalk on either side and must engage in risky street travel to reach his destination. In addition to the access violations on Randol Mill Road, the southwest corner of Redbud and Davis near Mr. Decker’s home has no curb ramp, forcing Mr. Decker into the street when he begins his travel.
42. In or about September 2004, Mr. Decker attempted to access the shopping center located at Cooper and Randol Mill Road. When Mr. Decker attempted to navigate the surrounding public rights-of-way areas on Redbud, Davis, and Randol Mill Roads, he was forced to engage in difficult and/or risky dangerous travel in order to reach his destination, resulting from having to take longer routes or being forced into the streets to avoid access barriers that non-disabled persons could easily overcome.
43. On information and belief, the sidewalks on Randol Mill Road near Davis are pre ADA construction but several curbs have been redone within five (5) years of Plaintiffs’ initial complaint. Randol Mill Road has been altered or repaved within the last ten (10) to twelve (12) years over several City blocks in this area. Sections of the sidewalk on the north side of Randol Mill Road just east of Cooper show fresh sidewalk pour with no curb cuts being provided. Again, Randol Mill Road has been altered or repaved within the last ten (10) to twelve (12) years over several City blocks in this area. On information and belief, the sidewalks servicing Redbud and Davis are pre ADA construction and Redbud and Davis appear to have not been altered since the ADA.

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44. Another important destination for Mr. Frame is the downtown Arlington area where he would like to have the full benefit and use and enjoyment of Arlington’s public rights-of-way to access streets such as Border Street, South Street, and Abram Street in order to conduct personal and/or business activities including accessing the U.S. Post Office, the Municipal and Sub Courthouses, his attorney’s office, and restaurants including J. Gilligan’s. Within the last two years, if not also earlier, Mr. Frame has frequently visited these locations. These dates include, but are not limited to, July 1, 2005, March 14, 2005, February 8, 2005, and October 30, 2003.
45. On information and belief, Border Street has been altered or resurfaced over several city blocks in the downtown area described below (¶ 39 A – P) within five (5) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, there are portions of the sidewalks on both sides of Border Street in these areas that have been reconstructed, altered, or resurfaced within ten (10) years prior to Plaintiffs’ initial complaint.
46. On information and belief, Abram Street has been altered or resurfaced over several city blocks in the downtown area described below (¶ 39 A – P) within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, there are portions of the sidewalks on both sides of Abram Street in these areas that have been reconstructed, altered, or resurfaced within ten (10) years prior to Plaintiffs’ initial complaint.
47. On information and belief, South Street has been altered or resurfaced over several city blocks in the downtown area described below (¶ 39 A – P) within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, there are portions of the sidewalks on both sides of Abram Street

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in these areas that have been reconstructed, altered, or resurfaced within ten (10) years prior to Plaintiffs’ initial complaint.
48. Mr. Frame has attempted to travel on Border Street (“Border”), South Street (“South”), and Abram Street (“Abram”). However, in each of these locations he is confronted with numerous access barriers as discussed supra. Those locations and access barriers include, but are not limited to, the following:
A. The sidewalk on Abram directly in front of City Hall has a noncompliant cross slope of 3.7%. The sidewalks on the south side of Abram between West and College, East and Elm, and Lampe and Cooper are non-contiguous. B. The northwest corner of Abram and Mesquite has a non-compliant curb ramp with an abrupt vertical change in level at its transition base in one direction and no curb ramp in the other direction. C. The southwest corner of Abram and Center has a non-compliant curb ramp with an excessive running slope and the sidewalk just beyond the curb ramp has a non-compliant cross slope. On information and belief, Center has also been altered or resurfaced between Abram and South within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. D. The northwest corner of Abram and Oak has a non-compliant curb ramp with an excessive running slope and the sidewalk just beyond the curb ramp has an excessive cross slope. E. The southwest and southeast corners of Abram and West have non-compliant curb ramps and non-contiguous sidewalks.

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F. The southeast corner of Abram and Elm has a non-compliant curb ramp with an excessive running slope and a non-contiguous sidewalk just beyond the curb ramp. G. The southwest corner of Abram and East has a non-contiguous sidewalk and no curb ramp at all. H. The sidewalks near the northeast and southeast corners of South and West have extended and excessive cross slopes ranging between 5.6% and 7%. I. The northwest corner of South and Mesquite has a utility pole obstruction prohibiting the path of travel for wheelchair users, while the northeast corner has a non-contiguous sidewalk in one direction beyond the curb ramp. The sidewalk beyond the northwest corner is also noncompliant. J. The sidewalks on the south side of South and Mary and the south side of South and Elm in front of the post office are non-contiguous, while the north side of South and Mary has no curb ramps at all. On information and belief, Mary has been altered or resurfaced within the last five (5) to ten (10) years prior to Plaintiffs’ initial complaint between from Abram to Border. K. The sidewalk on the south side of Border in front of the Sub Courthouse and beyond is non-contiguous and contains non-compliant curb ramps projecting wheelchair users into vehicular lanes. The sidewalk on the north side of Border directly across from the Sub Courthouse is also non-contiguous.

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L. The southeast corner of Border and Mary has no curb ramp, while the northwest corner of Border and Mary has a non-contiguous sidewalk beyond the curb ramp. Again, on information and belief, Mary has been altered or resurfaced within the last five (5) to ten (10) years prior to Plaintiffs’ initial complaint between from Abram to Border. M. The sidewalk on the south side of Border near Mesquite and between Mary and East and is non-contiguous and also contains no curb ramps in an area of the sidewalk between Mesquite and Elm. N. The northeast corner of Border and Elm by the rear of the post office has no curb ramp at all. Just beyond the northeast corner where a curb ramp should exist, the sidewalk also has an abrupt vertical change in level of at least 2 inches and an excessive non-compliant cross slope of 6.1%. O. Mr. Frame has also become aware of other access barriers while attempting to access South Pecan Street near Mission Arlington. On information and belief, this area also contains numerous access barriers as described supra. P. The Sub Courthouse located on Border contains two (2) handicap accessible parking spaces with excessive running slopes or cross slopes. 49. Another destination for Mr. Frame includes the area around Matlock and Cravens. Mr. Frame would like to have the full benefit and use and enjoyment of Arlington’s public rights-of-way in this area to access his credit union, pharmacy, veterinarian’s office, and park where he would like to walk his dogs after their visits to the veterinarian’s office. Within the last two years, if not also earlier, Mr. Frame has

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frequently visited these locations. These dates include, but are not limited to, July 14, 2005, June 28, 2005, April 7, 2005, November 12, 2004, and April 7, 2004. However, because of the poor condition of the sidewalks in this area, Mr. Frame is unable to do so safely. He must either take a more difficult and longer route, or risk traveling in the street. On information and belief, the sidewalks and streets in this area appear to be pre ADA construction and have not been altered since the ADA.
50. Other destinations for Mr. Frame include the Bob Duncan Community Center and the Cliff Nelson Recreation Center where he has voted within the last two years, including the most recent presidential election, when he attempted to vote early in October 2004. The handicap accessible route at the front of the Cliff Nelson Recreation Center has an excessive running slope. The facility also has an insufficient number of handicap accessible parking spaces and lacks a van space. On information and belief, the parking lot and accessible route at the Cliff Nelson Recreation Center was constructed within the last five (5) to ten (10) years. The Bob Duncan Community Center lacks a van accessible handicap parking space.
51. Mr. Updike is a veteran of the U.S. Army, and he was discharged in 1985, after two years of service to our country. He became a quadriplegic on September 8, 2003, after a tragic automobile accident. Now the only motorized vehicle he drives is his wheelchair. Although Mr. Updike triumphed over the challenges of military service, he finds it extremely difficult to overcome the barriers to accessibility that Arlington has not rectified. For example, Mr. Updike has two school-age daughters, and in order to remain a responsible, loving father, he attends school events and supports his daughters’ education. One daughter goes to Bailey Junior High on 2411 Winewood Avenue, and the other daughter attends Ruby Ray Swift Elementary on 1101 S. Fielder

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Road. For example, on Tuesday, September 27, 2005, he had to travel in his wheelchair on Bowen Road in order to accompany his daughter to a school event. Since Arlington does not provide proper access to the school for Mr. Updike by providing ADA-compliant sidewalks and curb ramps, he is forced to travel in the street with vehicular traffic and also forced to take longer routes.
52. Mr. Updike has lived in Arlington for the past two years, and regularly travels to Albertsons on Little Road to buy groceries, about six to ten times per month. He also shops at Big Lots on Green Oaks Boulevard about two times per month. He goes roughly every other day to CVS Pharmacy at Little Road and Green Oaks Boulevard. Further, Mr. Updike goes twice per month to Wells Fargo on Little Road. These are examples of destinations that are important for Mr. Updike to access regularly, but this is certainly not an exclusive list of all destinations that Mr. Updike has attempted to access in the past two years.
53. On information and belief, Arkansas Lane has been altered or resurfaced in the areas below within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, portions of the sidewalks in the areas below (subparagraphs A – F) have been reconstructed, altered, or resurfaced within ten (10) years prior to Plaintiffs’ initial complaint. Mr. Updike has attempted to travel along Arkansas Lane (“Arkansas”), which he uses as a transit route to destinations on other streets. However, he is confronted with numerous access barriers on Arkansas as discussed supra. The access barriers include, but are not limited to, the following:
A. On the south side of Arkansas between Roosevelt Drive and Bowen, the storm drain is elevated and has an abrupt 2.5 inch vertical

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change in level. The storm drain elevation is important to note since it encroaches upon the sidewalk, as does a telephone pole at the same location. The resulting width of sidewalk between the storm drain and the telephone pole is about 18 inches, prohibiting the path of travel for a wheelchair user. A little further east on Arkansas, the same sidewalk abruptly ends at the construction site, with no temporary provisions being made for the mobility impaired to enter or exit from the sidewalk to the road. The same sidewalk also has another storm drain behind which the sidewalk has been removed, requiring a wheelchair to traverse on risky uneven ground. B. On the north side of Arkansas, about halfway between Bowen and Westchester Drive, a sidewalk that might otherwise be compliant is badly maintained so that greenery encroaches on the sidewalk making it impassable in a wheelchair. In the same overgrown area, a telephone pole encroaches on the sidewalk prohibiting the path of travel to a wheelchair user. Next to that, a driveway that intersects with the sidewalk has a non-compliant cross slope. Further east and closer to Westchester Drive, the sidewalk is non-contiguous at the telephone pole, and a wheelchair user must travel on risky uneven ground. C. On the north side of Arkansas, further east and closer to Windy Pine Lane, there is a telephone poll in the center of the sidewalk that prohibits the path of travel for a wheelchair user. The sidewalk has an excessive non-compliant cross slope of 12.8%, where it intersects with a driveway. A little further east, a storm drain nearly eclipses the entire

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sidewalk, and contains an abrupt 2 inch vertical change in level. Further east and closer to Engleford Drive, the sidewalk was repaved on both sides of the storm drain, but the new pavement stops short about a yard away from the curb, which also has no curb ramp. D. On the south side of Arkansas near Engleford Drive, the telephone pole is positioned on the sidewalk, blocking the exit or entrance to the portion of the sidewalk that crosses a driveway, which also has an excessive cross slope. The portion of the sidewalk that is not blocked by the telephone pole does not have a curb ramp. Further east on the south side, there are no curb ramps and the sidewalk that intersects with a driveway has an excessive non-compliant cross slope. E. On the south side of Arkansas near Avonhill Drive, a wheelchair user needs to overcome a 1 inch vertical change in level to enter the sidewalk from the driveway. As a further hindrance, both the running slope and the cross slope of the curb are extremely excessive and noncompliant. Further to the east, a wheelchair user may choose to either drive over a narrow area of grass with uneven ground and a dangerous slope that is encroached by a telephone pole, or risk falling down from the same curb where there is no curb ramp. Further to the east, closer to Laredo Court, there is an extremely narrow curb ramp with excessive noncompliant cross and running slopes. F. On the north side of Arkansas, about 25 yards west of Fielder, the sidewalk that intersects with a parking lot driveway has a non-compliant cross slope of 8%. A little further east, the sidewalk intersects with

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another parking lot driveway producing a non-compliant cross slope of 11%. A third area of the sidewalk that intersects with another parking lot driveway also has a non-compliant cross slope. 54. On information and belief, Green Oaks Boulevard has been altered or resurfaced in the areas below within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, portions of the sidewalks in the areas below (subparagraphs A – E) have been reconstructed, altered, or resurfaced within ten (10) years prior to Plaintiffs’ initial complaint. Mr. Updike has also attempted to travel to and on Green Oaks Boulevard (“Green Oaks”). However, he is confronted with numerous access barriers on Green Oaks as discussed supra. The access barriers include, but are not limited to, the following: A. The southwest intersection of Green Oaks and Ronny Snow Drive the curb ramp has a non-compliant cross slope of 13.6%, and noncompliant running slope of 13.1%. B. Further north, on the east side of Green Oaks and south side of Quail Lane, the curb has an excessive non-compliant slope of 9.9%, and an excessive non-compliant slope of 16%. C. Further north on the east side, the sidewalk has an excessive noncompliant slope is 12.1%. Close to Chaperito Trail, the east side has a curb with an excessive non-compliant running slope of 22.1% and a noncompliant vertical change in level its transition base. D. Also near Chaperito Trail, the sidewalk is non-contiguous and broken in front of the telephone pole, and the ground that must be traversed is uneven with loose dirt and grass.

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E. Further north near Holly Hollows Drive, the sidewalk is also broken in front of a telephone pole with a ditch resulting on the side closest to the pole, making it impassable by a wheelchair user. 55. On information and belief, Little Road has been altered or resurfaced in the areas below within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, many of the sidewalks, where they are provided, have been reconstructed, altered, or resurfaced within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. Mr. Updike has attempted to travel to and on Little Road, but he is confronted with numerous access barriers, as discussed supra. The access barriers include, but are not limited to, the following: A. On the east side from Treepoint Drive to US-287, the curb ramp has a non-compliant running slope of 10.5%. On both the east and west sides, there are numerous segments with no sidewalks or accessible routes provided, not even to access pedestrian cross signal buttons. Where a sidewalk is provided, it is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. B. On the west side from US-287 to Arborgate Drive, the curb ramp has an excessive non-compliant running slope of 10.9%, and the accessible route has an excessive cross slope of 6.3% with an abrupt 1 inch vertical change in level. The south curb ramp has an excessive noncompliant running slope of 14.1%. There is a non compliant cross slope of 6.2% where the sidewalk intersects with a driveway. The north curb

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ramp has an excessive non-compliant running slope of 14.8%. The southwest curb ramp has an excessive non-compliant running slope of 10.4%. The northwest curb ramp has an excessive non-compliant running slope of 18.4%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within ten (10) years prior to Plaintiffs’ initial complaint. On the east side, no sidewalk or accessible route is provided. C. On the east side from Arborgate Drive to Dangerfield Court, the sidewalk does not have a curb ramp where the accessible route crosses the curb. The sidewalk also contains several abrupt vertical changes in level, several non-compliant cross slopes of 4.5% or higher which extend 20 feet in some areas. Several accessible routes have non-compliant cross slopes of 7%, 7.4%, 4.1%, 4.3%, and 8.8%. No sidewalk or accessible route is provided to the pedestrian cross signal button. The sidewalk has non-compliant cross slopes of 12.6% and 10.8% where it intersects with two driveways. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. D. On the west side from Arborgate Drive to Dangerfield Court, the sidewalk has non-compliant cross slopes of 4.4% and 8.3%, and abrupt 3inch vertical change in level. There is also no curb ramp where the accessible route meets the curb. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint.

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E. On the west side from Dangerfield Court to I-20 Highway, the sidewalk has a 1 inch vertical change in level. The south curb ramp has an excessive non-compliant running slope of 15.1%. The sidewalk has non-compliant cross slopes of 4.2% and 8%. The north curb ramp has an excessive non-compliant running slope of 11.2%. The foot of the curb ramp also has an abrupt 1 inch vertical change in level. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. On the east side, no sidewalk or accessible route is provided. F. On the west side from I-20 to Poly Webb Road, the sidewalk has a non-compliant cross slope of 5.3% where it intersects with a driveway, and has an abrupt 1.5 inch vertical change in level. The sidewalk also has a non-compliant cross slope of 4.6% at another location. The southwest curb ramp has a non-compliant running slope of 9.7% and a noncompliant cross slope of 4.7%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. On the east side, no sidewalk or accessible route is provided. G. On the west side from Poly Webb Road to Office Park Drive, the curb ramp has an excessive non-compliant running slope of 11.3%. The sidewalk also has various non-compliant cross slopes of 4.6%, 4%, 4.4%, 5.1%, and 5.6% where it intersects with a driveway. Another curb ramp has an abrupt 1 inch vertical change in level at its transition base. Another curb ramp has a non-compliant running slope of 9.1% and cross slope of

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9.8%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. On the east side, no sidewalk or accessible route is provided. H. On the east side from Poly Webb Road to W. Green Oaks Boulevard, the sidewalk does not have a curb ramp where an accessible route meets the curb. The curb ramps have non-compliant cross slopes of 7.1%, 8.3%, and 4.1%, and non-compliant running slopes of 9.2% and 9.8%. The surface of the sidewalk is unstable and has loose material in multiple places. The sidewalk or accessible route has many noncompliant cross slopes of 7.5%, 6.6%, 9.9%, 6.7%, 11.7%, 4.3%, and 4.6% at different locations. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. I. On the east side from W. Green Oaks Boulevard to W. Pleasant Ridge Road, the curb ramps have non-compliant running slopes of 9.8%, 13.1%, 9.4%, 10.4%, and 15.4% and cross slopes of 8.1%, 7.3%, 7%, and 8.7%. The surface of the sidewalk is unstable with loose material and has an abrupt 3.5 inch vertical change in level. There is no sidewalk or accessible route provided to the pedestrian push button prohibiting access by a wheelchair user. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the

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location, and there is a brand new concrete pour at one curb where no curb cut was provided. J. On the west side from Office Park Drive to W. Green Oaks Boulevard, the curb ramp has a non-compliant cross slope of 9.9%. The accessible route has non-compliant cross slopes of 7.7%, 9.9%, 5.6% and an excessive 11.2% where it intersects with a driveway. Curb ramps have non-compliant cross slopes of 8.4%, 9.9%, 8.9%, 8.1%, and 7.3%, plus running slopes of 16.5% and 14%. The island clear floor space has a 7.4% surface slope. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within ten (10) years prior to Plaintiffs’ initial complaint. K. On the west side from W. Pleasant Ridge Road to W. Green Oaks Boulevard, curb ramps have non-compliant running slopes of 13.5% and 9.8%. One of these curb ramps has a 21.5% slope on the flare side. These curb ramps also have non-compliant cross slopes of 7.6%, 18.4%, 11.9%, and 9.7%. The sidewalk has an excessive 20.8% cross slope where it intersects with a driveway. The sidewalk also has abrupt vertical changes in level of 1.25 inch and 1-inch. In other locations, the accessible route has excessive non-compliant cross slopes of 11.7%, 6.3%, 5.2%, 12.7%, 10.2%, 8.3%, and 4.8%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within ten (10) years prior to Plaintiffs’ initial complaint. L. On the east side from W. Green Oaks Boulevard to Tate Springs Road, curb ramps have non-compliant running slopes of 9%, 10%, and

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9.8%, and a cross slope of 4.2%. The foot of one curb ramp has an excessive non-compliant running slope of 34.3%. The sidewalk has a 1inch vertical change in level. The sidewalk does not have a curb ramp where an accessible route meets the curb. The accessible route has other non-compliant cross slopes of 8.2%, 9.2% and an excessive 15.8% where it intersects with a driveway. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within ten (10) years prior to Plaintiffs’ initial complaint. M. On the east side from Tate Springs Road to W. Pleasant Ridge Road, the feet of curb ramps have 9.6%, 36.9%, 28.7%, and 36.6% running slopes. The foot of one curb ramp has an abrupt 2.5 inch vertical change in level, and another has a 2-inch vertical change in level. The accessible route has cross slopes of 5%, 5.8%, and 6.3%. The surface of the sidewalk is unstable with loose material. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within ten (10) years prior to Plaintiffs’ initial complaint. 56. On information and belief, Bowen Road has been altered or resurfaced in the areas below within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, depending on the location. On information and belief, the sidewalks have been reconstructed, altered, or resurfaced within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. Mr. Updike has attempted to travel to and on W. Bowen Road, but he is confronted with numerous access barriers, as discussed supra. The access barriers include, but are not limited to, the following:

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A. On the east side from W. Sublett Road to Collard Road, curb ramps have non-compliant running slopes of 9.5%, 9.6%, and 9.3%, and cross slopes of 9.7%, 5.8%, 4.3%, 6.6% and an excessive 9.4% where it intersects with a driveway. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. B. On the east side from Collard Road to SW Green Oaks Boulevard, curb ramps have non-compliant running slopes of 8.6%, 9.3%, and 8.9%, and cross slopes of 7.9% and 7.2%. The foot of one curb ramp has a non-compliant running slope of 9.2%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. C. On the west side from Collard Road to SW Green Oaks Boulevard, the curb ramp has a non-compliant running slope of 10.5%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. D. On the west side from SW Green Oaks Boulevard to Mandy Way, curb ramps have non-compliant running slopes of 9.4%, 10.1%, and 8.5%, and cross slopes of 6.8%, 9%, 5.3%, 4.7%, and 5.4%. The sidewalk has an abrupt 1-inch vertical change in level. A ramp with a slope of 6.3% runs 50 feet in length and does not have the required handrails. Another ramp has an excessive non-compliant running slope of 16.3%. The sidewalk or accessible route has numerous non-compliant cross slopes of

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9%, 5.5%, 4.5%, and 7.6% where it intersects with driveways. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. E. From Chad Drive, the west side’s curb ramps have non-compliant cross slopes of 10.1% and 5.6%. The east side’s curb ramps have noncompliant cross slopes of 8.7% and 13.7%. The sidewalk on the east and west side in this area are believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. F. On the east side from SW Green Oaks Boulevard to Courtland Drive, the sidewalk has an abrupt 1 inch vertical change in level. The accessible route has non-compliant cross slopes of 5%, 4.5% and an excessive 12.8% where it intersects with a driveway. The curb ramps have non-compliant cross slopes of 10% and 7.8%, and a running slope of 8.6%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. G. On the east side from Courtland Drive to Wimbledon Drive, the curb ramp has a non-compliant running slope of 10.3% and a non-compliant cross slope of 10.2%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint.

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H. On the east side from Wimbledon Drive, the curb ramp has a noncompliant cross slope of 7.1%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. I. On the east side from Villa Vera Drive, the curb ramps have noncompliant cross slopes of 6.1% and 4.1%, and a non-compliant running slope of 11.7%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. J. On the east side from El Salvador Court, the curb ramps have noncompliant running slopes of 10% and 10.7%, and two abrupt 1-inch vertical changes in level at their transition base. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. K. On the east side from W. Barding Road, the curb ramps have noncompliant running slopes of 8.5% and 10.8%, and the foot of one curb ramp has an excessive non-compliant 22.8% running slope. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. L. On the east side from Oak Shadow Court, the curb ramps have non-compliant running slopes of 9.2% and 9.1%, and non-compliant cross slopes of 4.8%, 5.2%, and 6.3%. The sidewalk on the east side in this

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area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. M. On the west side from I-20 to Patridge Avenue, the segment is under construction. Nonetheless, no temporary provisions are made to provide another accessible route. The accessible route has excessive non-compliant cross slopes of 6.1% and 6.8%. A curb ramp has a noncompliant cross slope of 5.5%, and its foot has a non-compliant running slope of 9.4%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. N. On the west side from Blue Quail Drive to Chad Drive, the curb ramps have non-compliant cross slopes of 6%, 4.7%, 8.4%, 8.9% and 7.3%, and non-compliant running slopes of 10.3% and 11.5%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. O. On the east side from I-20 to W. Pleasant Ridge Road, the curb ramp has a non-compliant running slope of 10.3% and a non-compliant running slope of 8.6%. The sidewalk or accessible route has an excessive non-compliant cross slope of 8.2% where it intersects with a driveway. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, with curbs that appear to have been poured within five (5) years prior to Plaintiffs’ initial complaint.

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P. On the west side from I-20 to W. Pleasant Ridge Road, the curb ramps have non-compliant running slopes of 9.3%, 10.7%, and 13.3%, and a non-compliant cross slope of 4.6%. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, with curbs that appear to have been poured within five (5) years prior to Plaintiffs’ initial complaint. Q. On the east side from W. Pleasant Ridge Road to Pleasant Circle S, one curb ramp has a non-compliant running slope of 9.4%. Several curb ramps also have non-compliant cross slopes of 6.7%, 6.5%, and 7.6%. The foot of one curb ramp has a non-compliant running slope of 10.9%, and 7.3% where it intersects with a driveway. The sidewalk also has an abrupt 2-inch vertical change in level. The sidewalk on the west side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. R. On the east side from Pleasant Circle S and Pleasant Circle N, two curb ramps each have non-compliant cross slopes of 10.3%. Two other curb ramps have non-compliant cross slopes of 10.7% and 6.8%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. S. On the east side from W. Arbrook Boulevard, the curb ramp has an excessive non-compliant cross slope of 12.1%. The foot of the curb ramp has an excessive non-compliant running slope of 19.9%. Further, the

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pedestrian cross signal button is mounted at 46 inches, with no clear floor space for a wheel chair user to maneuver on. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. T. On the east of Garden Lane, the curb ramp has a non-compliant cross slope of 8.8%. Further, the pedestrian cross signal button is mounted at 44 inches, with no clear floor space for a wheelchair user to maneuver on. The sidewalk to W. Mayfield Road has an abrupt 2.25 inch vertical change in level, and a curb ramp has a 1.5-inch vertical change in level at its transition base. The sidewalk or accessible route has an excessive non-compliant cross slope of 12.7%. The feet of two other curb ramps have excessive non-compliant running slopes of 10% and a 54.8%. The sidewalk on the east side in this area is believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint, and the curbs in this area appear to have been poured or redone within five (5) years of Plaintiffs’ initial complaint. U. On the east side from Sunset Lane to California Lane, the curb ramp has a non-compliant cross slope of 11%, and its foot has an excessive and non-compliant running slope of 54.8%. Another curb ramp has a non-compliant cross slope of 7.2%, and its foot has an excessive non-compliant running slope of 37%. The sidewalk has a non-compliant cross slope of 7.4% where it intersects a driveway. The sidewalk and curbs on the east side in this area are believed to have been constructed,

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reconstructed, or altered within ten (10) years prior to Plaintiffs’ initial complaint. V. On the east side from California Lane, curb ramps have noncompliant running slopes of 11.8% and 14.3%. Pedestrian cross signal buttons are mounted at 51 and 48 inches. The sidewalk and curbs on the east side in this area are believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. W. On the east side from Catalina Drive, curb ramps have noncompliant cross slopes of 9.5% and 12.1%. The sidewalk and curbs on the east side in this area are believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. X. On the east side from Palo Alto Drive, curb ramps have noncompliant cross slopes of 12% and 5.7%. The sidewalk and curbs on the east side in this area are believed to have been constructed, reconstructed, or altered within five (5) years prior to Plaintiffs’ initial complaint. Y. On the east side from W. Arkansas Lane, many curb ramps have non-compliant running slopes of 13.1%, 9.3%, 9.2%, 11.1%, 11.2%, 12.9%, 13.9%, and 16.3%, and non-compliant cross slopes of 7.6%, 10.1%, 5.8%, 5.9%, and 7.9%. In addition, a pedestrian cross signal push button does not have the required clear floor space for a wheelchair user to maneuver on. The sidewalk and curbs on the east side in this area are

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believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. Z. On the west side from W. Arkansas Lane, many curb ramps have non-compliant running slopes of 10.7%, 9.5%, 11.6%, 9.5%, 15.6%, 10.0%, and 8.5%. In addition, the curb ramp with the 8.5% running slope also has a non-compliant 18.5% running slope at the foot of its transition base. Many of these curb ramps also have unstable and loose material. The sidewalk and curbs on the west side in this area are believed to have been constructed, reconstructed, or altered within five (5) to ten (10) years prior to Plaintiffs’ initial complaint. 57. On information and belief, Arlington has several other roads not mentioned above which Mr. Updike has attempted to access that have non-compliant sidewalks and curb ramps as described infra. Those roads include Cooper Street, Collins Street, Fielder Road, New York Avenue, Park Row, and Pioneer Parkway. However, Plaintiffs’ expert has not had the opportunity to inspect these areas. 58. On information and belief, Arlington has routinely failed to install curb ramps when resurfacing, repairing, altering, or constructing city streets, roads, and sidewalks or construct such curb ramps properly since the effective date of the ADA. Any recently repaved streets or roads in Arlington which lack curb ramps or contain non-compliant curb ramps are in violation of the ADA. 59. On information and belief, many city streets, roads, and sidewalks have not been altered or repaired since the effective date of the ADA. Many of these streets, roads, and sidewalks are inaccessible and unsafe for wheelchair users because they contain no curb ramps or non-compliant curb ramps. These conditions are a result of

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Arlington’s failure to properly develop and implement a Transition Plan as required by

the ADA.

60. On information and belief, Arlington has also received Federal financial

assistance, subjecting it to the requirements of § 504 of the Rehabilitation Act. To that

end, Arlington operates a federally funded paratransit service that requires occupants to

execute a liability waiver absolving Arlington of any liability, even for the negligent acts

of Arlington employees. Mr. Frame would like to have the full benefit and use and

enjoyment of Arlington’s paratransit service, but is unreasonably required to risk his

safety to do so.

61. Arlington has discriminated against the Plaintiffs simply because of their

disabilities by denying him them the navigable use and benefit of sidewalks, streets, and

intersections within Arlington. Without accessible curb ramps and side walks, the

Plaintiffs will be prevented from undertaking commonplace activities available to those

who are fully ambulatory. Arlington has also discriminated against the Plaintiffs by

failing to provide sufficient handicap parking spaces at certain public facilities.

COUNT I – VIOLATION OF THE AMERICANS WITH DISABILITIES ACT

Plaintiffs reallege each and every allegation contained in paragraphs 1 through

61 above as though fully restated below and further state as follows:

62. Title II of the ADA prohibits a public entity from excluding persons with

disabilities from participating in, or denying the benefits of, the goods, services,

programs and activities of the entity or otherwise discriminating against persons on the

basis of disability. 42 U.S.C. § 12132.

63.

Pursuant to the mandates of 42 U.S.C. § 12134(a), on July 26, 1991,

the Department of Justice, Office of the Attorney General, promulgated federal

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regulations to implement the requirements of the ADA. Those regulations are codified at 28 C.F.R. Part 36, the ADA Accessibility Guidelines (“ADAAG”).
64. The regulations implementing Title II of the ADA, require that when a public entity alters any existing street, road, sidewalk or other facility in any manner that affects usability, the altered portions must be made accessible to and usable by individuals with disabilities 28 C.F.R. § 35.151(b).
65. These regulations also require a public entity to install curb ramps at intersections whenever it alters sidewalks, streets, roads, and/or highways at anytime after January 26, 1992. 28 C.F.R. § 35.151(e)(1) & (2).
66. When a public entity resurfaces streets, it affects the accessibility and usability of those streets and appurtenant sidewalks and is therefore an alteration within the meaning of the ADA. However, Arlington has failed to provide proper curb ramps at several of these altered locations since the effective date of the ADA. 28 C.F.R. § 35.151(b).
67. A public entity is also required to maintain the features of all facilities which are required to be accessible by the ADA. 28 C.F.R. § 35.133. Facilities required to be accessible include any portions of buildings, roads, walks, passageways, parking lots, or other real property, including the site where the building is located. 28 C.F.R. § 35.104.
68. Arlington’s practices as set forth above, constitute unlawful and intentional discrimination on the basis of disability, in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq., as follows:
A. Arlington’s failure to properly install or maintain curb ramps when resurfacing streets and altering or installing city sidewalks;

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B. Arlington’s failure to install all necessary curb ramps when resurfacing streets and altering or installing city sidewalks; C. Arlington’s failure to maintain accessible pedestrian rights-of-way by failing to fix abrupt and impassable vertical changes in level, by failing to remove dangerous and excessive cross slopes, and by failing to remove obstacles and protruding objects that narrow and restrict the path of travel; D. Arlington’s failure to provide a sufficient number of handicap accessible parking spaces or fully compliant parking spaces at certain City buildings, property, or offices; E. Arlington’s failure to correct architectural barriers to access on accessible routes and entrances to City buildings, property, or offices; F. Arlington’s failure to properly implement a Transition Plan as required by the ADA and its implementing regulations. 28 C.F.R. § 35.150(d)(1); and G. Arlington’s failure to implement as part of their Transition Plan, a prioritized schedule for installing curb ramps at existing pedestrian walkways, which have not been installed or altered since the effective date of the ADA, giving priority to walkways serving entities covered by the ADA, including State and local government offices and facilities; transportation, places of public accommodation, and employers, followed by walkways serving other areas. 28 C.F.R. § 35.150(d)(2).

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69. The Plaintiffs who use a motorized wheelchair have repeatedly tried to use public sidewalks, intersections, and streets in Arlington, only to encounter the barriers to access delineated above.
70. As residents of Arlington, the Plaintiffs have experienced these barriers in the past and will continue to do so in the future as they frequently travel on Arlington’s sidewalks, streets, and intersections to various locations, including local restaurants, stores, hospitals, the post office and other government property, buildings, and/or offices.
71. Arlington’s discrimination against the Plaintiffs constitutes an ongoing and continuous violation of the ADA and unless restrained from doing so, Arlington will continue to violate the law. Unless Arlington’s unlawful conduct is enjoined, Plaintiffs will continue to sustain injuries for which they have no adequate remedy at law. Consequently, Plaintiffs are entitled to injunctive relief pursuant to the ADA, 42 U.S.C. § 12188.
72. Plaintiffs have been obligated to retain the undersigned counsel for the filing and prosecution of this action. Plaintiffs are entitled to recover those attorney fees, expert fees, costs and expenses incurred in this case from Arlington. 28 C.F.R. § 35.175.
WHEREFORE, Plaintiffs demand judgment against Arlington and request that this Court enter an Order:
A. Accepting jurisdiction of this case and declare that policies, procedures and services of Arlington are discriminatory and are not in compliance with the ADA;

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B. Requiring Arlington to alter its streets to comply with federal law and regulations to install curb ramps; C. Requiring Arlington to install curb ramps at any street intersection that was constructed, resurfaced, restored, and/or rehabilitated within Arlington since January 26, 1992; D. Requiring Arlington to alter their sidewalks to make them accessible to and usable by individuals with disabilities to the extent required by Title II of the ADA; E. Directing Arlington to evaluate and neutralize their policies, practices, and procedures toward persons with disabilities, for such reasonable time so as to allow Arlington to undertake and complete corrective procedures; F. Mandating that Arlington undertake a self-evaluation and that such evaluation contain a description of all Arlington streets, sidewalks, curbs, public parking, public restrooms, and entrances to government buildings with Arlington; a review of all policies and practices that govern the administration of Arlington’s streets, sidewalks, curbs, public parking, and entrances to government buildings; and an analysis of whether the policies and practices regarding such administration adversely affect the full participation of and use by individuals with disabilities; G. Mandating Arlington to expeditiously make all reasonable and appropriate modifications in their policies, practices and procedures, remove all architectural barriers that are readily achievable, provide alternative means when necessary; and, otherwise, take all such steps as

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are reasonable and necessary to ensure that persons with disabilities are no longer excluded, denied services, segregated or otherwise treated differently and discriminated against in Arlington; H. Awarding reasonable attorney’s fees, expert fees, costs, and expenses to the Plaintiffs; I. Awarding such other and further relief as the Court deems necessary, just and proper; and J. Retaining jurisdiction of this case until Arlington has fully complied with the orders of this Court. COUNT II – VIOLATIONS OF THE REHABILITATION ACT Plaintiffs reallege each and every allegation contained in paragraphs 1 through 61 above as though fully restated below and further state as follows: 73. The Plaintiffs are individuals with disabilities. 74. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 prohibits discrimination against people with disabilities by recipients of federal funding. Section 504 provides that “no otherwise qualified handicapped individual…shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 75. Plaintiffs, as City, County, and State residents who do or would like to frequent the businesses and facilities that are currently inaccessible, are otherwise qualified to use the programs, services, and benefits provided by Arlington in the form of City sidewalks, curb ramps, streets, intersections, and handicap accessible parking spaces.

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76. Upon information and belief, Arlington has received Federal financial assistance so as to subject it to the requirement of § 504 of the Rehabilitation Act.
77. Arlington has excluded the Plaintiffs, solely by reason of their disabilities, from participation in, denied the Plaintiffs the benefits of, and subjected the Plaintiffs to discrimination by failing to provide access to services, programs, and activities.
78. Arlington is in violation of Section 504 of the Rehabilitation Act by discriminating against the Plaintiffs and other disabled persons, as a result of the following violations:
A. Arlington’s failure to properly install or maintain curb ramps when resurfacing streets and altering or installing city sidewalks; B. Arlington’s failure to install all necessary curb ramps when resurfacing streets and altering or installing city sidewalks; C. Arlington’s failure to maintain accessible pedestrian rights-of-way by failing to fix abrupt and impassable vertical changes in level, by failing to remove dangerous and excessive cross slopes, and by failing to remove obstacles and protruding objects that narrow and restrict the path of travel; D. Arlington’s failure to provide a sufficient number of handicap accessible parking spaces or fully compliant parking spaces at certain City buildings, property, or offices; E. Arlington’s failure to correct architectural barriers to access on accessible routes and entrances to City buildings, property, or offices.

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F. Arlington’s failure to properly implement a Transition Plan as required by the ADA and its implementing regulations. 28 C.F.R. § 35.150(d)(1); and G. Arlington’s failure to implement as part of their Transition Plan a prioritized schedule for installing curb ramps at existing pedestrian walkways, which have not been installed or altered since the effective date of the ADA, giving priority to walkways serving entities covered by the ADA, including State and local government offices and facilities; transportation, places of public accommodation, and employers, followed by walkways serving other areas. 28 C.F.R. § 35.150(d)(2). 79. The Plaintiffs, who each use a motorized wheelchair, have repeatedly tried to use public sidewalks, intersections, and streets in Arlington, only to encounter barriers to access delineated above. 80. Arlington has discriminated, and continues to so discriminate, against the Plaintiffs by denying them access to, and full and equal enjoyment of one or more of, the goods, services, programs, facilities, privileges, advantages, and/or accommodations by failing to remove substantially all architectural barriers as required by Title II of the ADA, as a result of the violations, inter alia, discussed above. WHEREFORE, Plaintiffs demand judgment against Arlington and request that this Court enter an Order: A. Accepting jurisdiction of this case and declare that policies, procedures and services of Arlington are discriminatory and are not in compliance with the Rehabilitation Act;

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B. Requiring Arlington to alter its streets to comply with federal law and regulations to install curb ramps; C. Requiring Arlington to install curb ramps at any street intersection that was constructed, resurfaced, restored, and/or rehabilitated within the City since January 26, 1992; D. Requiring Arlington to alter their sidewalks to make them accessible to and usable by individuals with disabilities to the extent required by the Rehabilitation Act; E. Directing Arlington to evaluate and neutralize their policies, practices, and procedures toward persons with disabilities, for such reasonable time so as to allow Arlington to undertake and complete corrective procedures; F. Mandating that Arlington undertake a self-evaluation and that such evaluation contain a description of all the Arlington streets, sidewalks, curbs, public parking, public restrooms, and entrances to government buildings within Arlington; a review of all policies and practices that govern the administration of Arlington streets, sidewalks, curbs, public parking, and entrances to government buildings; and an analysis of whether the policies and practices regarding such administration adversely affect the full participation of and use by individuals with disabilities; G. Mandating Arlington to expeditiously make all reasonable and appropriate modifications in their policies, practices and procedures, remove all architectural barriers that are readily achievable, provide

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alternative means when necessary; and, otherwise, take all such steps as

are reasonable and necessary to ensure that persons with disabilities are

no longer excluded, denied services, segregated or otherwise treated

differently and discriminated against in Arlington;

H. Awarding reasonable attorney’s fees, expert fees, costs, and

expenses to the Plaintiffs;

I. Awarding such other and further relief as the Court deems

necessary, just and proper; and

J. Retaining jurisdiction of this case until Arlington has fully complied

with the orders of this Court.

Respectfully submitted,

DE LA O, MARKO, MAGOLNICK & LEYTON Attorneys for Plaintiffs 3001 S.W. 3rd Avenue Miami, Florida 33129 Telephone: (305) 285-2000 Facsimile: (305) 285-5555

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By: /s/ Charles D. Ferguson Miguel M. de la O Florida Bar No. 0822700 delao@dmmllaw.com Charles D. Ferguson Florida Bar No. 0741531 ferguson@dmmllaw.com LEAD COUNSEL MOSELEY · MARTENS, LLP John L. Freeman, Esq. State Bar No. 07425500 John Mitchell Nevins, Esq. State Bar No. 14935800 4949 Hedgcoxe Road, Suite 270 Plano, Texas 75024-3928 Telephone: (214) 525-3905 Facsimile: (214) 387-9434 LOCAL COUNSEL

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CERTIFICATE OF SERVICE I hereby certify that on August 9, 2007, a true and correct copy of the foregoing Third Amended Complaint was electronically filed with the Clerk of the Court by using the CM/ECF system, which sends a notice of electronic filing to the following: Kent S. Hofmeister of Brown & Hofmeister, LLP, Counsel for Defendant, 740 East Campbell Road, Suite 800, Richardson, Texas 75081; and Denise V. Wilkerson, Assistant City Attorney, City of Arlington, P.O. Box 90231, Arlington, Texas 76004-3231.

/s/ Charles D. Ferguson Charles D. Ferguson

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 Case 4:05-cv-00470-Y Document 97 Filed 09/04/07 Page 1 of 31 PageID 968

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDELL DECKER, §

SCOTT UPDIKE, J.N., a minor,

§

by his next friend and mother,

§

GABRIELA CASTRO, MARK HAMMAN §

and JOEY SALAS,

§

§

Plaintiffs,

§

§

v.

§

§

THE CITY OF ARLINGTON,

§

a Municipal Corporation,

§

§

Defendants.

§

Civil Action No. 4-05CV-470-Y

PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS

Miguel M. de la O Florida Bar No. 0822700

Charles D. Ferguson Florida Bar No. 0741531

LEAD COUNSEL DE LA O, MARKO, MAGOLNICK & LEYTON Attorneys for Plaintiffs 3001 S.W. 3rd Avenue Miami, Florida 33129 Telephone: (305) 285-2000 Facsimile: (305) 285-5555

LOCAL COUNSEL MOSELEY · MARTENS, LLP John L. Freeman, Esq. State Bar No. 07425500 John Mitchell Nevins, Esq. State Bar No. 14935800 4949 Hedgcoxe Road, Suite 270 Plano, Texas 75024-3928 Telephone: (214) 525-3905 Facsimile: (214) 387-9434

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TABLE OF CONTENTS
TABLE OF CITATIONS....................................................................................................ii I. BACKGROUND ....................................................................................................... 1
A. FACTUAL BACKGROUND................................................................................... 1
B. LEGAL BACKGROUND ....................................................................................... 3
II. ARGUMENT............................................................................................................. 4 A. THE LEGAL STANDARD ON A MOTION TO DISMISS ...................................... 4
B. THE CITY’S STATUTE OF LIMITATIONS ARGUMENT MISAPPREHENDS THE
LAW, AND IN ANY EVENT, THERE ARE NO GROUNDS TO DISMISS THE
COMPLAINT BASED ON THE STATUTE OF LIMITATIONS. .................................... 5
1. The Statute of Limitations Does Not Apply to Plaintiffs’ Claim. ......................... 5 2. The Proper Accrual Test and the Continuing Violations Doctrine Militate Against Dismissal..................................................................................................... 6 3. The Statute of Limitations Argument is Inapplicable At This Juncture. ............. 9 C. PLAINTIFFS HAVE LEGAL STANDING TO BRING ALL OF THEIR CLAIMS. .... 9
1. Plaintiffs Satisfy The Legal Requirements For Standing. ................................ 12 2. Plaintiffs Have Standing To Assert Rehabilitation Act Claim........................... 13 3. Plaintiffs Have Standing To Enforce Self-Evaluation and Transition Plan Requirements Because Arlington’s Failure To Adopt and Implement a SelfEvaluation and Transition Plan Is The Reason Why It Fails To Comply with the ADA........................................................................................................................ 14 D. PLAINTIFFS HAVE CLEARLY ESTABLISHED DISCRIMINATION ................... 15
1. Plaintiffs Have Alleged Facts To Show Alterations That Trigger Violations Of The Ada And Rehabilitation Act. ............................................................................ 15 2. Sidewalks Are A Service, Program, Or Activity And Must Be Accessible As A Whole..................................................................................................................... 16 3. Arlington’s Constitutional Argument Is Wrong................................................. 20 4. Plaintiffs State A Clam Under The Ada And Rehabilitation Act Because The Liability Waiver Denies Them Meaningful Access To Arlington’s Paratransit Services. ................................................................................................................ 20 CONCLUSION .............................................................................................................. 23 CERTIFICATE OF SERVICE ........................................................................................ 24

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TABLE OF CITATIONS
CASES
Ability Ctr. of Greater Toledo v. City of Sandusky 385 F.3d 901 (6th Cir. Ohio 2004) ................................................................ 20, 21
Alexander v. Choate 469 U.S. 287 (1983) ........................................................................................... 21
AMTRAK v. Morgan 536 U.S. 101 (2002) ............................................................................................. 7
Baker v. Putnal 75 F.3d 190 (5th Cir. 1994) .................................................................................. 4
Board of Trustees v. Garrett 531 U.S. 356 (2001) ........................................................................................... 20
Borkowski v. Valley Central Sch. District 63 F.3d 131 (2d Cir. 1995) ................................................................................... 3
Brown v. Sibley 650 F.2d 760 (5th Cir. 1981) ............................................................................... 13
Capitol Records, Inc. v. Wings Digital Corp. 218 F. Supp. 2d 280 (E.D.N.Y. 2002)................................................................... 5
Carter v. Orleans Parish Public Sch. 725 F.2d 261 (5th Cir. 1984)............................................................................... 13
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003)............................................................................. 21
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ........................................................................................... 18
City of Boerne v. Flores, 521 U.S. 507 (1997) ........................................................................................... 20
City of Sacramento v. Barden, 292 F.3d 1073 (9th Cir.), cert denied, 539 U.S. 958 (2002)............................ 3, 17
Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 884 F. Supp. 487 (S.D. Fla. 1994) ................................................................ 14
Conley v. Gibson, 355 U.S. 41 (1957) .................................................................. 4

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Deck v. City of Toledo 56 F. Supp. 2d 886 (N.D Ohio 1999) ...................................................... 6, 7, 8, 13
Deck v. City of Toledo 76 F. Supp. 2d 816 (N.D Ohio 1999) .............................................................. 6, 14
Disabled America for Equal Access, Inc. v. Ferries del Caribe, Inc. 405 F.3d 60 (1st Cir. 2005)................................................................................. 12
Drew v. Department of Correctional 297 F.3d 1278 (11th Cir. 2002)............................................................................. 6
Duvall v. County of Kitsap 260 F.3d 1124 (9th Cir. 2001)............................................................................. 14
Ferguson v. City of Phoenix 157 F.3d 668 (9th Cir. 1998)................................................................................. 9
Ford v. New Britain Trans. Co. 2004 WL 3078827 (D. Conn. Dec. 21, 2004) ....................................................... 6
Geiger v. City of Upper Arlington 2006 WL 1888877 (S.D. Ohio 2006) .................................................................. 18
Green v. Los Angeles County Superintendent of Schools 883 F.2d 1472 (9th Cir. 1989)............................................................................... 7
Gulf Underwriters Insurance Co. v. Great W. Casualty Co. 2005 WL 946834 (W.D. Tex. Mar. 2, 2005) .......................................................... 5
Haithcock v. Frank 958 F.2d 671 (6th Cir. 1982)................................................................................. 6
Henrickson v. Potter 327 F.3d 444 (5th Cir. 2003)................................................................................. 7
Holmberg v. Armbrecht 327 U.S. 396 (1946) ............................................................................................. 6
Huckabay v. Moore 142 F.3d 233 (5th Cir. 1998)................................................................................. 7
Kinney v. Yerusalem 9 F.3d 1067(3rd Cir. 1993) ................................................................................. 19
Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc. 677 F.2d 1045 (5th Cir. 1982)........................................................................... 5, 9

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Jones v. ALCOA, Inc. 339 F.3d (5th Cir. 2003) ..................................................................................... 10
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).......................................................................... 5, 15
Lightbourn v. County of El Paso, Texas 118 F.3d 421 (5th Cir. 1997)............................................................................... 13
Lujan v. Defenders of Wildlife 504 U.S. 555 (1992) ........................................................................................... 12
Matthews v. Jefferson 29 F. Supp. 2d 525 (W.D. Ark. 1998) ................................................................. 14
McCarthy v. Hawkins 381 F.3d 407 (5th Cir. 2004)............................................................................... 20
Melton v. Dart 391 F.3d 669 (5th Cir. 2004)......................................................................... 21, 22
Moore v. Baylor Health Care System 2004 U.S. Dist. LEXIS 7009 (N.D. Tex. Apr. 23, 2004) ........................................ 9
Moore v. McDonald 30 F.3d 616 (5th Cir. 1994) .................................................................................. 6
Moseke v. Miller & Smith, Inc. 202 F. Supp. 2d 492 (E.D. Va. 2002) ................................................................... 8
New Jersey Protection and Advocacy, Inc. v. Township of Riverside 2006 WL 2226332 (D.N.J. 2006) ............................................................ 14, 18, 19
Parker v. Universidad de Puerto Rico 225 F.3d 1 (1st Cir. 2000)............................................................................... 3, 17
Pascuiti v. New York Yankees 87 F. Supp. 2d 221 (S.D.N.Y. 1999)............................................................... 4, 11
Pickern v. Quality Foods, Inc. 293 F.3d 1133 (9th Cir. 2002)............................................................................. 12
Presta v. Peninsula Corridor Joint Powers Board 16 F. Supp. 2d 1134 (N.D. Cal. 1998) .................................................................. 9
Ross v. Gatlinburg 327 F. Supp. 2d 834 (E.D. Tenn 2003)............................................................... 14

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Schonfeld v. City of Carlsbad 978 F. Supp. 1329 (S.D. Cal. 1997) ................................................................. 3, 7
Steinbrecher v. Oswego Police Officer Dickey 138 F. Supp. 2d 1103 (N.D.Ill. 2001) .................................................................. 16
Tandy v. City of Wichita 380 F.3d 1277 (10th Cir. 2004)........................................................................... 12
Tex. Commercial Energy v. TXU Energy, Inc., 2004 WL 1777597 at 5 (S.D. Tex. Jun. 24, 2004), aff'd, 413 F.3d 503 (5th Cir. 2005) ........................................................................ 5
Union Carbide Corp. v. State Board of Tax Comm'rs, 992 F.2d 119 (7th Cir. 1993)................................................................................. 6
FEDERAL STATUTES, RULES & REGULATIONS
42 U.S.C. § 12101 (a)(9) ................................................................................... 17
42 U.S.C. § 12132 ................................................................................................ 3
42 U.S.C. § 12143(a).......................................................................................... 23
Fed. R. Civ. P. 8(a)......................................................................................... 5, 10
Fed. R. Civ. P. 12.B............................................................................................ 10
Fed. R. Civ. P. 12(b)(6) ...................................................................................... 10
28 C.F.R. 35.150 ........................................................................................ 4, 5, 21
28 C.F.R. § 35.151(a)............................................................................... 4, 11, 12
MISCELLANEOUS
60 Fed. Reg. 58.462, 58463, (1995)..................................................................... 2
Section 1108 of the Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107 (23 U.S.C. 133(b)(3))..................................... 18
Americans with Disabilities Act of 1989: hearings on H.R. 2273, Before the Subcomm. On Civil and Constitutional Rights of the House Comm. On the Judiciary, 101st Cong., 1st Sess. 248 (1989) ...................................... 18
H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 49-50 (1990) .................... 17

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Justice Department Brief of Amicus Curiae, Barden (No. 01-15744), at 1112 .................................................................................................................. 18
U.S. Architectural and Transportation Barriers Compliance bd., Accessible Rights of Way: A Design Guide (Nov. 1999) ............................................... 17

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PLAINTIFFS’ BRIEF RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS
Plaintiffs, Richard Frame (“Frame”), Wendell Decker (“Decker”), Scott Updike (“Updike”), J.N., a minor, by his next friend and mother, Gabriela Castro, Mark Hamman (“Hamman”), and Joey Salas (“Salas”) (collectively, the “Plaintiffs”), hereby respond to Defendant, City of Arlington, Texas’ (“Arlington” or the “City”), Third Renewed Rule 12(b)(6) Motion to Dismiss.

I. BACKGROUND
Once again in its third renewed motion to dismiss, Arlington dismissively says that Plaintiffs are making picayune complaints about “individual technical violations” of the ADA and Rehabilitation Acts (the “Acts”)1 and/or sweeping demands that the City tear itself apart and build a brand new infrastructure according to a hyper-extreme interpretation of the Acts. Arlington’s intentionally distorted characterization of Plaintiffs’ position allows it to set up and attack a Straw Man, i.e., the City ignores Plaintiffs’ actual position, and substitutes a distorted and exaggerated version of Plaintiffs’ position, which is easier for the City to attack. On the few occasions Arlington does address Plaintiffs’ actual position, it misapprehends or misapplies the law. Accordingly, the third renewed motion to dismiss should be denied.
A. FACTUAL BACKGROUND. Plaintiffs are wheelchair-bound residents of Arlington. Fourth Am. Compl. ¶¶ 18 – 23. They want to access and use the City’s services, programs and activities. For instance, Plaintiffs want (and – for medical and basic services – need) to be able to get around Arlington’s business and downtown districts and areas where they reside, so

1 Arlington accepts federal financial assistance, subjecting it to § 504 of the Rehabilitation Act. Fourth Am. Compl. ¶ 60.

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they can access, among other places, City Hall, U.S. Post Offices, Municipal and Sub Courthouses, voting locations, professional offices, medical facilities, pharmacies, supermarkets, sports stadiums, schools, colleges, parks and restaurants. Id. ¶¶ 27, 2829, 30, 32 – 33, 37, 41, 44, 49-52. But they cannot, because Arlington’s system of streets, sidewalks and intersections in these crucial areas – including, but not limited to, Abram Street, Border Street, Bowen Road, Cooper Street, Division Street, South Street, Mesquite Street, Matlock Road, Randol Mill Road, Copeland Road, and Mayfield – lack curb ramps or lack accessible curb ramps and contain sidewalks that drop or rise sharply, stop abruptly, or are impassable because of major obstructions embedded in them. Id. ¶¶ 27-30, 33, 35, 38-42, 48-50, 51-56. Far from being minor inconveniences, these conditions routinely put Plaintiffs in harm’s way, by forcing them into the street or making it impossible for them to get to where they need to go. Id. ¶¶ 26, 31, 41-42, 51.
All of these conditions violate the Acts, and demonstrate that Arlington, despite having had over 10 years to do so, has utterly failed to achieve program accessibility as required by the ADA. Id. ¶ 62. Notably, most or all of these violations exist on streets and sidewalks altered since the January 26, 1995 deadline for Arlington to make itself “readily accessible” to the disabled. Id. ¶¶ 13, 34, 36-37, 43, 45-47, 50, 53-56. In addition, there is evidence that Arlington has failed to implement a systematic program for providing curb ramps in many sidewalks/curbs predating the ADA. Moreover, Plaintiffs have traveled on – or attempted to travel on – all the streets and sidewalks mentioned herein during the two year period prior to the filing of the complaint, and they intend to continue traveling – or attempting to travel – on these streets and sidewalks in the future. Id. ¶¶ 24, 27, 29-30, 32-33, 38, 40-42, 44, 49-52.

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B. LEGAL BACKGROUND Title II of the ADA obligates State and local governments to make their programs and services accessible to disabled persons. 42 U.S.C. § 12132. Streets, sidewalks and curb ramps are among the “programs and services” that must be made accessible under Title II. City of Sacramento v. Barden, 292 F.3d 1073, 1076 (9th Cir.), cert denied, 539 U.S. 958 (2002) (maintaining public sidewalks is a normal function of a city and … maintaining their accessibility for individuals with disabilities therefore falls within the scope of Title II of the ADA); Parker v. Universidad de Puerto Rico, 225 F.3d 1, 6 (1st Cir. 2000) (Congress emphasized that ADA protections “would be meaningless if people who used wheelchairs were not afforded the opportunity to travel on and between the streets”); Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1337 (S.D. Cal. 1997) (“Streets are considered existing facilities under the regulations and, as such, curb ramps at existing sidewalks are subject to the general requirements for program accessibility”). If necessary to achieve program accessibility, municipalities were required to make structural changes by January 26, 1995. Not every facility, or every portion of every facility, must be made accessible, but the entire program or service must be accessible. See Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. Pt. 35, App. A, at 492 (explaining program access requirement); 28 C.F.R. 35.150. Municipalities are not required to take actions that fundamentally alter the nature of a service, program or activity, or that would impose an undue burden. But the onus is on the city to demonstrate that there are alternatives to structural change or to prove its entitlement to available exceptions. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 142–43 (2d Cir. 1995) (determination

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of undue burden is a fact-specific inquiry the burden of which is on the defendant). While the issue is overall program accessibility, each individual barrier found is a “building block” for finding that the city, viewed in its entirety, is not readily accessible. Pascuiti v. New York Yankees, 87 F. Supp. 2d 221, 224 (S.D.N.Y. 1999).
All new facilities – again, including new sidewalks, streets, rights-of-way and so forth – “shall be designed and constructed to be readily accessible to and usable by” disabled persons. 28 C.F.R. § 35.151(a). When a facility is altered (which includes instances where a city alters or resurfaces a street, sidewalk and/or road), it must be made “readily accessible” to the maximum extent feasible. 28 C.F.R. § 35.151(b). Finally, the relevant regulations compel programmatic installation of curb ramps in sidewalks pre dating Title II of the ADA in accordance with a transition plan. 28 C.F.R. § 35.150(d)(1). A schedule for providing curb ramps on walkways controlled by the public entity must give priority to walkways servicing entities covered by the ADA, including state and local government offices and facilities, transportation, places of public accommodation (described in sect. I. A., supra), and employers, followed by walkways servicing other areas. 28 C.F.R. § 35.150(d)(2).

II. ARGUMENT

A. THE LEGAL STANDARD ON A MOTION TO DISMISS In evaluating a motion to dismiss, the Court considers only the complaint, assumes that all well-pleaded facts in it are true, and resolves any ambiguity in the plaintiff’s favor. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1994). A motion to dismiss should only be granted where it appears – beyond doubt – that the plaintiff cannot assert any fact that would entitle the party to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, motions to dismiss are viewed with disfavor and should

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rarely be granted. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
A pleading shall contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Courts do not apply a heightened pleading standard to a complaint alleging a civil rights violation against a municipality. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). “[F]actual details and evidentiary issues [are left to be] developed during discovery.” Capitol Records, Inc. v. Wings Digital Corp., 218 F. Supp. 2d 280, 284 (E.D.N.Y. 2002). For this reason, the “Court construes plaintiff's pleading liberally, and lack of detail does not constitute a sufficient ground to dismiss a complaint under Rule 12(b)(6).” Tex. Commercial Energy v. TXU Energy, Inc., 2004 WL 1777597, at *5 (S.D. Tex. Jun. 24, 2004), aff’d, 413 F.3d 503. “Dismissal for failure to state a claim is highly disfavored and is not granted routinely because of the liberal "notice pleading" requirements of the Federal Rules.” Gulf Underwriters Ins. Co. v. Great W. Cas. Co., 2005 WL 946834, at *7 (W.D. Tex. Mar. 2, 2005). The City’s motion should be denied.
B. THE CITY’S STATUTE OF LIMITATIONS ARGUMENT MISAPPREHENDS THE LAW, AND IN ANY EVENT, THERE ARE NO GROUNDS TO DISMISS THE COMPLAINT BASED ON THE STATUTE OF LIMITATIONS.
Arlington argues that Plaintiffs must bring (and have not brought) an action for ADA violations no later than two (2) years after a given street, sidewalk or facility is altered or built, and that any claims for discrimination arising out of events that occurred more than two (2) years preceding the date of Plaintiffs’ filing their complaint are barred by the statute of limitations. Both positions are fundamentally wrong.
1. The Statute of Limitations Does Not Apply to Plaintiffs’ Claim.

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The statute of limitations does not apply to claims seeking purely equitable relief. Holmberg v. Armbrecht, 327 U.S. 396 (1946). Declaratory and injunctive relief is equitable, and is not governed by a statute of limitations. Id.; Drew v. Dep’t of Corr., 297 F.3d 1278 (11th Cir. 2002); Union Carbide Corp. v. State Bd. of Tax Comm’rs, 992 F.2d 119 (7th Cir. 1993). Plaintiffs herein seek solely equitable relief (e.g., injunctive and declaratory relief); thus, the statute of limitations does not apply. Ford v. New Britain Trans. Co., 2004 WL 3078827 (D. Conn. Dec. 21, 2004) (Title II claim, filed 13 years after incident giving rise to the action, was not untimely, as statutes of limitations do not apply to claims seeking solely equitable relief).
2. The Continuing Violations Doctrine Militates Against Dismissal.
It is true that, where statutes of limitations apply and where plaintiffs are, at the time, in a position to evaluate the accessibility of public rights-of-way, the limitations period for a Title II accessibility action accrues when a ramp or alteration is “completely constructed and in plain view.” Deck v. City of Toledo, 56 F. Supp. 2d 886, 893 (N.D Ohio 1999).2 “However, doctrines such as the continuing violation theory exist to usurp the statute of limitations period and address situations where wrongful conduct is ongoing.” Id. at 892. “[W]here there is an ongoing, continuous series of discriminatory acts, they may be challenged in their entirety as long as one of those discriminatory acts falls within the limitations period.” Haithcock v. Frank, 958 F.2d 671, 677–78 (6th Cir. 1982). In the context of a Title II claim, a continuing violation exists where plaintiffs show that (a) defendant’s wrongful conduct continued after the initial event that began the pattern, (b) the injury to plaintiffs continued after the event and (c) the injury to

2 Deck is the type of Title II accessibility case where a state statute of limitations applies, because the Deck plaintiffs sought money damages. Deck v. City of Toledo, 76 F. Supp. 2d 816, 817 (N.D Ohio 1999).

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plaintiffs must have been avoidable if the defendant had at any time ceased their wrongful conduct. Deck, 56 F. Supp. 2d at 893.
Here, Plaintiffs allege that (a) Arlington began violating Title II when it failed to make itself readily accessible after the deadline for it to do so under the ADA, and continued to violate it by thereafter building non-compliant facilities (or failing to make facilities compliant when altering them), (b) plaintiffs’ injuries continued to accrue as the City repeatedly violated Title II, and (c) additional injury to plaintiffs could have been avoided if the City complied with the ADA by making itself readily accessible and by ensuring that new construction was ADA compliant.3 This makes out a claim for continuing violations under Title II. Deck, 56 F. Supp. 2d at 894. See Schonfeld, 978 F. Supp. at 1333 (complaint that alleges municipal inaccessibility and includes at least one violation inside the limitations period sets forth a continuing violations claim under Title II of the ADA); Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480–81 (9th Cir. 1989) (maintaining a discriminatory system both before and during the limitations period is a continuing violation). For this reason, the motion to dismiss should be denied.
The cases upon which Arlington relies to suggest that Plaintiffs in a Title II accessibility action must prove an “organized scheme” of discrimination in order to present a claim under the continuing violations doctrine – Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998), AMTRAK v. Morgan, 536 U.S. 101 (2002), and Henrickson v. Potter, 327 F.3d 444 (5th Cir. 2003) – make no such point. All three cases involve alleged employment discrimination (often racial or gender discrimination), where the bar is set higher to make out a continuing violation claim, as incidents of employment

3 As was the case in the City of Toledo, “curb ramps are constructed on a continual basis” in Arlington, and accordingly, “Plaintiffs are not attempting to rectify ‘passive inaction’ of a ‘continuing ill effect’ and thus a continuing violation exists.” Deck, 56 F. Supp. 2d at 894.

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discrimination are more apparent but less continuing in nature (such incidents should,
therefore, be easier to identify but less likely to have long-lasting effects, which justifies
setting the bar higher before permitting a plaintiff to go forward on a continuing
violations theory):
Clearly, there is a distinction between a situation involving a gender or racial based “pattern” of discriminatory conduct where wrongful intent is apparent and numerous separate curb cut installations, each of which are at different sites with different characteristics, completed by different contractors and which are likely the result of the City’s lack of oversight rather than discriminatory intent.
Deck, 56 F. Supp. 2d at 984. Indeed, the entire notion of “wrongful intent,” a notion that
explains why plaintiffs alleging intentional employment discrimination are required to
establish an “organized scheme” of discrimination in order to assert a continuing
violation, is fundamentally inapplicable to a Title II accessibility claim:
It is not necessary to show that the City specifically intended to discriminate against disabled individuals; the ADA imposes a duty upon the City to comply with its provisions and accommodate persons with disabilities. . . . An affirmative act of intentional discrimination, although generally integral to a claim of race or gender discrimination, is not necessary under the ADA. The City of Toledo has breached its duty under the statute; the City’s benign neglect in the oversight of curb ramp construction creates an adverse impact on disabled individuals who live or frequently travel within Toledo. Therefore, if the City was engaged in a discriminatory practice by failing to oversee the contractors, even if they did not affirmatively intend to discriminate, and at least one of the ramps was installed within the statutory two year period (which is undisputed), the statute of limitations will not bar the claims because the City’s actions constitutes a continuing violation.
Deck, 56 F. Supp. 2d at 984.4 Moreover, equitable remedies (which are all Plaintiffs
request herein) are available regardless of intent. Ferguson v. City of Phoenix, 157

4 Accord Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d 492, 504 n.14 (E.D. Va. 2002) (noting that “unlike ‘patterns’ of racial or gender discrimination requiring wrongful intent, the construction of a FHA

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F.3d 668, 674–75 (9th Cir. 1998). The phantom “organized scheme” requirement is the only argument Arlington makes against the application of the continuing violations theory, and the argument is wholly inapplicable.
3. The Statute of Limitations Argument is Inapplicable At This Juncture.
Additionally, the statute of limitations can only form the basis for dismissal when all the facts necessary to support it appear on the face of the complaint. See Fed. R. Civ. P. 8(c); Fed. R. Civ. P. 12(b)(6); Moore v. Baylor Health Care Sys., 2004 WL 884436 at *1 (N.D. Tex. Apr. 23, 2004); Kaiser Aluminum at 1050. “However, where the alleged failure to comply with the statute of limitations does not appear on the face of the complaint, a motion for summary judgment is the proper procedure.” Moore at *6. Contrary to Arlington’s assertions, Plaintiffs allege that they encountered ADA violations within the two years prior to filing the complaint. (Fourth Am. Compl. ¶¶ 24, 27, 29-30, 32-33, 38, 40-42, 44, 49-52). The statute of limitations is an issue for summary judgment or trial, if at all, but it is not a basis upon which to dismiss the claim pursuant to Fed. R. Civ. P. 12.B.
4. Arlington’s Hodgepodge of Pleading Issues Do Not Support Dismissal.
Finally, Arlington raises a series of pleading issues that it mislabels as arguments in support of its statute of limitations position. First, it says that Plaintiffs have failed to sufficiently allege facts that would support a tolling allegation. But the recent complaint recites many examples where Plaintiffs encountered barriers and ADA violations at

non-compliant building may result from neglect or oversight,” and “the effects of gender and racial discriminatory acts are not usually continuing in nature, unlike the continuing effects of the construction of a FHA non-compliant building”); Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d 1134, 1136 (N.D. Cal. 1998) (Title II of the ADA “guards against both intentional discrimination and simple exclusion from services resulting not from intentional discriminatory acts, but rather from inaction, thoughtlessness, or equal treatment when particular accommodations are necessary”).

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sidewalks, curb ramps and other facilities within two (2) years of filing their complaint, and longer. Fourth Am. Compl. ¶¶ 24, 27, 29-30, 32-33, 38, 40-42, 44, 49-52. Arlington cites Jones v. ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003), which involves another employment discrimination (racial) case where the incidents of discrimination would be easier to recognize, and the plaintiffs in Jones never alleged specific awareness of discrimination which resulted in their § 1981 claims being barred by the statute of limitations. Here, Plaintiffs have clearly alleged facts that would support a tolling allegation. Moreover, if the statute of limitations applies, then these events, which took place within the limitations period, entitle Plaintiffs to bring all of their claims under the continuing violations theory. See Sect. II. B. 1-2, supra.
Second, Arlington claims that because Plaintiffs have specifically alleged 3, 5, 10, or 12 year timelines with respect to construction and/or alteration of City streets and sidewalks, that Plaintiffs have failed to allege harm or discrimination within the two (2) year statute of limitations. Arlington seems to be confusing and/or merging the dates of construction with the dates Plaintiffs sustained an injury, and it also relies on an incorrect interpretation of the law. See Sect. II. B. 1-2, supra. As more fully articulated in other parts of this brief (sect. I. B. and sect. II. D. 2.), Title II of the ADA imposes different obligations on public entities for construction and alterations that occur before and after the January 26, 1992 effective date. The dates or timelines that were alleged in Plaintiffs Fourth Amended Complaint were for the specific purpose of identifying those areas where Arlington has a heightened obligation under 28 C.F.R. § 35.151, and to identify other areas where Arlington is governed by 28 C.F.R. § 35.150. Those dates and timelines are irrelevant to and completely separate from the dates of Plaintiffs’ injuries that are clearly and separately articulated in the most recent complaint. Fourth

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Am. Compl. ¶¶ 24, 27, 29-30, 32-33, 38, 40-42, 44, 49-52. Contrary to Arlington’s assertions, there is nothing vague regarding Plaintiffs’ allegations, and Plaintiffs made a good faith effort regarding the timelines, which involved an objective analysis from Plaintiffs’ experts.5
The Fourth Amended Complaint recites many examples of existing sidewalks, curb ramps and other facilities that Arlington has failed to make accessible, (see, e.g., Fourth Am. Compl. ¶¶ 27, 28-30, 33, 35, 38-40, 48-51, 53-56), each of which is a building block for finding that the City, when viewed in its entirety, is not readily accessible. Pascuiti, 87 F. Supp. 2d at 224. Moreover, the vast majority of noncompliant streets, roads, sidewalks and rights-of-way identified in the complaint have been resurfaced or altered after January 26, 1992, which imposes on Arlington a higher standard to make all such facilities “readily accessible” to the maximum extent feasible. Fourth Am. Compl. ¶¶ 13, 34, 36-37, 43, 45-47, 50, 53-56. With respect to topography, the violations identified in the complaint were measured based on ADAAG guidelines, e.g., 28 C.F.R. § 35.151(c), but any issue on this point should be reserved for discovery and trial. Moreover, Arlington’s arguments are attempts to force Plaintiffs to plead with far more specificity than is required by the federal rules. See Sect. II. A., supra.
C. PLAINTIFFS HAVE LEGAL STANDING TO BRING ALL OF THEIR CLAIMS.
Arlington argues Plaintiffs lack standing because they purportedly fail to allege

5 The allegations about timelines are based on Plaintiffs’ expert's evaluation from extensive photographic evidence gathered on the areas alleged to be non-compliant. Plaintiffs’ expert’s determination about timelines of alteration and/or construction is based on the following factors many of which are present in Plaintiffs’ photographic evidence: Materials used and their typical life cycle, evident "newer" layers of material over older surfaces which are often indicated by darker color (asphalt), condition of adjacent surfaces, sharp edges resulting from formwork (on curbs) or saw cuts on pavement for resurfacing, overlay of one material over the adjacent surface (i.e. asphalt over concrete gutter), among others.

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(a) a sufficiently specific personal injury-in-fact, (b) any basis for a real controversy as to possible future injuries Plaintiffs will suffer if the City remains inaccessible, (c) “specific acts of intentional discrimination,” (d) that the City receives “federal financial assistance for any particular program by which they are directly benefited,” and which, if any, program, service or activity provided by the City has been denied to them, (e) any basis for a private cause of action to enforce the ADA’s self-evaluation and transition plan requirements (the City says there is no such legal claim). (Def.’s Mem. Supp. Mot. Dismiss at 8 – 13). All of these arguments miss the mark.
1. Plaintiffs Satisfy The Legal Requirements For Standing. Notwithstanding Arlington’s bare assertion, Plaintiffs unmistakably allege that they have personally suffered the type of injury in fact that entitles them to seek retrospective and prospective relief. Plaintiffs have standing when they are personally prevented from patronizing a public accommodation due to a defendant’s existing and future failure to achieve programmatic accessibility and to make its new and altered construction ADA compliant. Disabled Am. for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60 (1st Cir. 2005); Pickern v. Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “Past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury,” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004), which bears on whether Plaintiffs will likely be injured in the future, justifying prospective relief. Also, Plaintiffs unmistakably allege that they are denied meaningful access to essential services throughout Arlington because of the City’s rights-of-way system, which is inaccessible when viewed in its entirety and which features inaccessible barriers at new, altered, and existing streets. These barriers continuously subject

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Plaintiffs to danger, as they are often forced into busy streets to travel. This is far more than Plaintiffs merely experiencing “difficulty” and “problems” maneuvering around Arlington.
Next, Arlington repeats the bogus claim that Plaintiffs must show intentional discrimination on the City’s part. As more fully discussed above, in the context of seeking equitable relief to correct inaccessibility under Title II, “[i]t is not necessary to show that the City specifically intended to discriminate against disabled individuals.” Deck, 56 F. Supp. 2d at 984; see Sect. II, supra. The only time intentional discrimination must be shown is when plaintiffs seek money damages. Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) (plaintiff needs to show intentional discrimination only when he or she seeks to recover money damages).6 Here, Plaintiffs seek equitable relief only; there is no requirement to show the City intentionally discriminated against them.
2. Plaintiffs Have Standing To Assert Rehabilitation Act Claim. Arlington argues that, in order to state a Rehabilitation Act claim, Plaintiffs must allege that the City receives federal financial assistance to a program that directly benefits Plaintiffs and that the Plaintiffs cannot participate in or enjoy the benefits of these programs because of the program’s inaccessible nature. The cases Arlington cites in support of this argument, however – Lightbourn v. County of El Paso, Texas, 118 F.3d 421 (5th Cir. 1997) and, in a later section, Brown v. Sibley, 650 F.2d 760 (5th Cir. 1981) – confront these issues at trial, not on a motion to dismiss. Moreover,

6 The only case Arlington cites to support its argument -- Carter v. Orleans Parish Pub. Sch., 725 F.2d 261 (5th Cir. 1984) – only offers more support for Plaintiffs’ position. In Carter, the Fifth Circuit held that plaintiff’s “claim for damages must also fail,” because a recent Supreme Court case “reversed an award of damages to a private plaintiff who had failed to prove intentional discrimination.” Carter, 725 F.2d at 264 (emphasis added). As Arlington is well-aware, Plaintiffs herein seek only equitable relief, Carter does not apply and Plaintiffs are not required to show that the City intentionally discriminated against them.

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Plaintiffs do allege that the City receives federal financial assistance in connection with its sidewalk, curb ramp, street, intersection, handicap accessible parking space and paratransit programs, and that Plaintiffs have been denied the benefits of these programs because they are inaccessible. Fourth Am. Compl. ¶¶ 60, 62, 75-76. These allegations satisfy the federal rules’ notice pleading requirements. See Sect. II. A., supra.
3. Plaintiffs Have Standing To Enforce Self-Evaluation and Transition Plan Requirements Because Arlington’s Failure To Adopt and Implement a Self-Evaluation and Transition Plan Is The Reason Why It Fails To Comply with the ADA.
Arlington argues that Plaintiffs lack standing to enforce the self-evaluation and transition plan requirements set forth in the regulations accompanying Title II of the ADA, because no private cause of action exists to enforce these requirements. In one sense, the City is right: a separate, independent cause of action of this sort (for failure to conduct a self-evaluation and prepare and implement a transition plan) does not exist, and Plaintiffs do not assert one. However, Arlington’s failure to comply with the ADA’s self-evaluation and transition plan requirements is relevant to the extent it bears a causal connection to Plaintiffs’ claims of discrimination. See Ross v. Gatlinburg, 327 F. Supp. 2d 834, 841 (E.D. Tenn 2003); Deck, 76 F. Supp. 2d at 823; Matthews v. Jefferson, 29 F. Supp. 2d 525, 339-40 (W.D. Ark. 1998); Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 884 F. Supp. 487, 490 (S.D. Fla. 1994). “The failure to explicitly articulate the curb ramp requirement outside the context of a transition plan does not abrogate the Department of Justice’s clear intention to require curb ramps or other sloped areas where pedestrian walks cross, giving priority to walkways serving entities covered by the Act.” New Jersey Protection and Advocacy, Inc. v. Township of Riverside, 2006 WL 2226332 at *3 (D.N.J. 2006). Thus, Plaintiffs

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can point to Arlington’s failure to adopt and implement a self-evaluation and transition plan as the reason why the City fails to comply with the ADA.
D. PLAINTIFFS HAVE CLEARLY ESTABLISHED DISCRIMINATION 1. Plaintiffs Have Alleged Facts to Show Alterations that Trigger Violations of the ADA and Rehabilitation Act.
Arlington, without support, claims Plaintiffs must make highly particularized allegations about when alterations and/or new construction occurred, and carefully “describe the scope of the particular alteration,” in order to state a claim that the City is required to install curb ramps at specific locations. Arlington goes so far as to suggest – again without support – that Plaintiffs must address in their complaint whether the depth of the resurfacing overlay on a given street sufficiently impacts its usability. (Def.’s Mem. Supp. Motion Dismiss at 15). There are no such pleading requirements. As noted, federal courts do not apply a heightened pleading standard to complaints alleging a civil rights violation against a municipality; instead, the usual pleading requirement of Federal Rules of Civil Procedure 8(a) applies. Leatherman, 507 U.S. at 163. Under Rule 8, Plaintiffs only need to give notice of their claim, leaving “factual details and evidentiary issues to be developed during discovery.” Capital Records, 218 F. Supp. 2d at 284. Plaintiffs easily meet that low threshold herein.
Plaintiffs allege that many, if not all, of the streets at issue, including relevant portions of Abram, Border, Bowen, South, Randol Mill, and Mesquite, were substantially resurfaced, reconstructed, repaved, and otherwise altered by or on behalf of the City either within the last two years or after January 26, 1992. Fourth Am. Compl. ¶¶ 13, 34, 36-37, 43, 45-47, 50, 53-56. Even to the untrained eye, it is very apparent that fresh resurfacing has occurred on these streets. And, while it is unnecessary to make this allegation in the complaint, it is worth noting that many photographs taken by Plaintiffs

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indicate that the resurfacing at issue herein is at least 1.5 inches in depth and involves the length and width of at least a city block, thereby affecting the usability of the street and triggering the duty to install curb ramps at these locations even under the City’s interpretation of the law.
Finally, Plaintiffs allege that the City’s rights-of-way program is, viewed in its entirety, inaccessible, and further allege, on information and belief, that the City has routinely failed to install curb ramps when resurfacing or altering city streets, roads, and sidewalks or constructed such curb ramps properly. Fourth Am. Compl. ¶ 58. Allegations based on information and belief are sufficient to satisfy federal notice pleading requirements. Steinbrecher v. Oswego Police Officer Dickey, 138 F. Supp. 2d 1103, 1109-10 (N.D.Ill. 2001). Facts that show additional alterations are an issue that Plaintiffs’ should be allowed to further develop through discovery. Therefore, the motion to dismiss should be denied.
2. Sidewalks are a Service, Program, or Activity and Must Be Accessible as a Whole.
Arlington claims that (a) sidewalks are not a “program, activity or service” under the ADA and (b) Plaintiffs improperly seek to impose a “continuous obligation” on it to maintain all public rights-of-way at some ideal accessibility standard, “whether located on City property or not, in perpetuity,” and force it to “install sidewalks that meet some [ideal] accessibility standard at all streets and roadways under its control and responsibility.” (Def.’s Mem. Supp. Mot. Dismiss at 17). Arlington’s first argument is unsupportable. Its second argument is a pure red herring.
Sidewalks are a “program, activity or service” under the ADA. Arlington furiously attempts to distinguish, a Ninth Circuit case which held that “anything a public entity does” and any “normal function of government,” including maintaining public sidewalks,

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is covered by Title II. City of Sacramento v. Barden, 292 F.3d 1073 (9th Cir.), cert denied, 539 U.S. 958 (2002).7 But the Court’s reasoning in Barden is supported both by agencies charged with creating regulations and guidelines under Title II and by the legislative history of the ADA itself. U.S. Architectural and Transportation Barriers Compliance Bd., Accessible Rights-of-Way: A Design Guide (Nov. 1999) (public rightsof-way constitute a program offered by a government to its citizens); Parker v. Universidad de Puerto Rico, 225 F.3d 1, 6 (1st Cir. 2000) (“Congress emphasized in enacting the ADA that the employment, transportation, and public accommodations sections of the ADA would be meaningless if people who used wheelchairs were not afforded the opportunity to travel on and between the streets”).
The legislative history of Title II supports a finding that sidewalks are a service program, or activity. During congressional hearings, testimony established that one of the greatest barriers disabled persons faced while trying to participate in economic life was the inability to use sidewalks to reach places of employment and commerce. See, e.g., Americans with Disabilities Act of 1989: Hearings on H.R. 2273, Before the Subcomm. On Civil and Constitutional Rights of the House Comm. On the Judiciary, 101st Cong., 1st Sess. 248 (1989) (disabled citizens are forced to stay home or use the street because curb cuts and sidewalks are inadequate). Moreover, in subsequent legislation, Congress has explicitly recognized that public sidewalks are covered by Title II. See Section 1108 of the Transportation Equity Act for the 21st Century, Pub. L. No.

7 After the Barden Court issued its opinion, the City of Sacramento petitioned the U.S. Supreme Court for a writ of certiorari and before ruling on the writ, the Supreme Court accepted a powerful amicus brief (the “Brief”) from the Department of Justice (“DOJ”) supporting the Barden holding. Justice Department Brief of Amicus Curiae, Barden (No. 01-15744). In the Brief, the DOJ emphasized among other things that a public entity is required to make its entire system of public sidewalks accessible, not just the sidewalks that provide access to other government services and programs. Id. at 12. The DOJ also recognized that when Congress enacted the ADA, it made a determination that societal benefits of promoting community access to the disabled outweigh the societal costs of complying with the ADA. Id. (citing to 42 U.S.C. § 12101 (a)(9); H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 49-50 (1990). After the Supreme Court received the Brief, it quickly denied Sacramento’s petition.

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105-178, 112 Stat. 107 (23 U.S.C. 133(b)(3)) (authorizes the use of federal funds set aside for transportation improvements undertaken by states for the modification of public sidewalks to comply with the ADA). Finally, Title II regulations are premised on the view that public sidewalk systems are a covered service, program, or activity under Title II. See 60 Fed. Reg. 58.462, 58463, (1995) (observing that curb ramp requirements for existing sidewalks were premised on the view that “maintenance of pedestrian walkways by public entities is a covered program”) (notice of proposed rulemaking). “That position, embodied in the DOJ’s regulations implementing Title II, is entitled to substantial deference.” See Justice Department Brief of Amicus Curiae, Barden (No. 01-15744), at 11-12 (citing to Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Without accessible sidewalks between curb ramps, the regulations’ requirements for curb ramps in sidewalks would be meaningless. Barden, 292 F.3d at 1077.
Arlington cites New Jersey Protection and Advocacy, Inc. v. Township of Riverside, 2006 WL 2226332 at *3 (D.N.J. 2006) for the proposition that “sidewalks, curb ramps, and parking spaces are not a program, activity, or service of a public entity within the meaning of § 12132 of the ADA.”8 However, in deciding not to find sidewalks to be programs, services, or activities for ADA implementing regulations, and instead finding them to be “facilities,” the New Jersey Protection and Advocacy Court seemed to be engaging in the “needless hair splitting arguments” the Barden Court sought to avoid. See Barden, 292 F.3d at 1076 (“attempting to distinguish which public functions

8 Arlington also cites Geiger v. City of Upper Arlington, 2006 WL 1888877 at *3 (S.D. Ohio 2006) for the same proposition. However, the Geiger opinion does not reject this premise. Rather, the Geiger opinion states that the Barden decision did not require a city to build brand new sidewalks where none exist in order to comply with the ADA. As articulated below, a requirement that Arlington build brand new sidewalks where none exist is not a position that Plaintiffs have taken. Plaintiffs simply demand that Arlington make their existing sidewalks readily accessible and bring them into compliance with the ADA.

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are services, programs, or activities, and which are not, would disintegrate into needless hair splitting arguments”). What Arlington fails to mention however, is that the New Jersey Protection and Advocacy Court also recognized that relevant ADA regulations “compel installation of curb ramps in preexisting sidewalks in most instances, regardless of whether the sidewalks constitute a facility, or a program, service or activity.” See New Jersey Protection and Advocacy, Inc., 2006 WL 2226332 at *3. According to the New Jersey Protection and Advocacy Court, 28 C.F.R. § 35.150(d)(2) “implies a more general obligation to install curb ramps in all sidewalks, even those predating the ADA, and the emphasis on curb ramps … suggests that the DOJ considered accessible sidewalks necessary to insure equal participation in and enjoyment of a public entities’ services, programs, or activities. Id. at *4 (finding the curb cut obligation to be mandated by 42 U.S.C. § 12132); Kinney v. Yerusalim, 9 F.3d 1067, 1069 (3rd Cir. 1993)( 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).
Arlington also mischaracterizes Plaintiffs’ argument as noted in FN 8, supra. Plaintiffs are not suggesting, and have never suggested, that the City has an obligation to build new sidewalks where none exist (and certainly Plaintiffs have never suggested the City must install sidewalks on every street and roadway under its control). Rather, Plaintiffs make the unremarkable claim that the City must make its public rights-of-way program “readily accessible” to disabled persons, ensure that new construction is readily accessible, and ensure that altered construction is readily accessible to the maximum extent feasible. Arlington can argue that the exceptions mentioned above relieve it of the obligation to make a given street, sidewalk, curb ramp, or similar facility

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ADA compliant, or it can argue that there is a preferable alternative, but – where those exceptions are available -- it is the City’s burden to raise and prove those arguments.9

Tellingly, Arlington has had the opportunity to make itself accessible for years, but has

chosen not to do so. The motion to dismiss should be denied, and the City made to

comply with the ADA.

3. Arlington’s Constitutional Argument is Wrong.

Arlington again argues Plaintiffs are trying to force upon it “very expansive

obligations” to make “the entirety of Arlington . . . have wide, level, and unobstructed

sidewalks,” that meet Plaintiffs’ “ideal standards for accessibility,” (see Def.’s Mem.

Supp. Mot. Dismiss at 22 – 23), and again commits the Straw Man fallacy.

To reiterate, Plaintiffs do not claim Arlington must build entirely new sidewalks

and continuously, “in perpetuity,” maintain all City sidewalks to some ideal level of

accessibility. Rather, Plaintiffs simply request that Arlington make their public rights-ofway readily accessible around areas of public accommodation.10

4. Plaintiffs State a Claim Under the ADA and Rehabilitation Act Because the Liability Waiver Denies them Meaningful Access to Arlington’s Paratransit Services.

9 Arlington has not suggested any effective alternative to providing compliant sidewalks and curb ramps. Any such alternative would be an issue for trial or summary judgment.
10 Plaintiffs do not read Arlington’s argument as suggesting that Title II is inherently unconstitutional. However, in an abundance of caution, it should be noted that Title II’s requirement of program accessibility has been determined to be a “congruent and proportional” response to the pervasive discrimination suffered by the disabled, including segregation and unequal treatment found in the administration of public services and programs, which also includes the systematic deprivation of fundamental rights. City of Boerne v. Flores, 521 U.S. 507, 531 (1997). Title II requires modifications that are reasonable and that do not fundamentally alter the nature of the public facilities, services, and programs. Id at 532. Title II is constitutional, and we do not believe Arlington suggests otherwise.

Moreover, to the extent Arlington relies on Lane v. Tennessee and Reickenbacker v. Foster to support its argument, this Court should note the inapplicability of Lane and its predecessors and progeny because they are based on Eleventh Amendment state immunity principles. Arlington, as a municipality, receives no such protection from the Eleventh Amendment. Board of Trustees v. Garrett, 531 U.S. 356 (2001) ("The Eleventh Amendment does not extend its immunity to units of local government."); McCarthy v. Hawkins, 381 F.3d 407, 421 (5th Cir. 2004) (local entities cannot assert sovereign immunity); Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 902 (6th Cir. Ohio 2004) (“[T]he [Eleventh] amendment protects only states and not municipalities”).

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“The purpose of paratransit service is to provide service to individuals with disabilities comparable to the level of public transportation or fixed route services provided to non-disabled individuals.” See Melton v. Dart, 391 F.3d 669, 673 (5th Cir. 2004) (citing 42 U.S.C. § 12143(a)). Public entities operating paratransit service are not required to make “reasonable modifications” under the ADA or Rehabilitation Act. Id. at 676. Instead, public entities operating a fixed route system must submit an annual plan to the Secretary of Transportation who reviews the plan to insure that public entities are providing comparable services between their paratransit and fixed route services. Id. at 675. Once the FTA approves the plan, the plan itself becomes the accommodation and a violation constitutes prohibited discrimination under Title II. Id. Arlington’s claim that Plaintiffs have not alleged facts to support a claim under the Acts is without merit.
First, Arlington argues that because Plaintiffs have not been denied physical access to the paratransit service or forced to sign a waiver which others are not required to sign, no ADA or Rehabilitation Act discrimination occurred. However, the Supreme Court has held that denial of meaningful access is the equivalent to a full denial of access under the Rehabilitation Act. Alexander v. Choate, 469 U.S. 287, 301 (1983). Although the Firth Circuit in Melton declined to address whether the meaningful access standard should be applied to claims for denial of access to paratransit services under the Acts, other federal circuits have extended the meaningful access standard to ADA claims. See Chaffin v. Kansas State Fair Board, 348 F. 3d 850, 857 (10th Cir. 2003); Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004).
The Tenth Circuit in Chaffin has clearly rejected Arlington’s physical access argument and held that the ADA requires more than “mere physical access.” Instead,

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“the ADA requires public entities to provide disabled individuals ‘meaningful access’ to their programs and services.” Chaffin at 857. Therefore, Plaintiffs mere physical presence on the paratransit service coupled with being subject to the liability waiver as a condition precedent should be construed as a denial to meaningful access of Arlington’s paratransit service.
Arlington’s other argument, that ADA or Rehabilitation Act claims do not trigger reasonable modifications, misses the mark. Arlington’s motion conspicuously fails to mention whether the City’s fixed route system requires patrons to sign liability waivers. In addition to applying the meaningful access standard, Plaintiffs could challenge the liability waiver on the basis that Arlington is requiring more from its paratransit disabled patrons than it requires from non disabled patrons on fixed route systems.
Arlington cites Melton v. Dart to support its claim. Melton, however, expressly left open the possibility of applying the meaningful access standard, and it held that a municipality could be challenged for failing to provide a comparable paratransit service. 391 F.3d 669. Indeed, the Fifth Circuit made clear that its decision did “not relegate disabled individuals to voiceless acceptance of sub par transportation merely because the ADA does not require reasonable modification to its paratransit services.” Id. at 675. For these reasons, as well, the motion to dismiss should be denied.

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CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court enter an
Order denying Arlington’s third renewed motion to dismiss, and for any additional relief
the Court finds appropriate.
Respectfully submitted,
DE LA O, MARKO, MAGOLNICK & LEYTON Attorneys for Plaintiffs 3001 S.W. 3rd Avenue Miami, Florida 33129 Telephone: (305) 285-2000 Facsimile: (305) 285-5555
By: /s/ Charles D. Ferguson Miguel M. de la O Florida Bar No. 0822700 delao@dmmllaw.com Charles D. Ferguson Florida Bar No. 0741531 ferguson@dmmllaw.com LEAD COUNSEL MOSELEY · MARTENS, LLP John L. Freeman, Esq. State Bar No. 07425500 John Mitchell Nevins, Esq. State Bar No. 14935800 4949 Hedgcoxe Road, Suite 270 Plano, Texas 75024-3928 Telephone: (214) 525-3905 Facsimile: (214) 387-9434 LOCAL COUNSEL

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CERTIFICATE OF SERVICE I hereby certify that on September 4, 2007, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court by using the CM/ECF system, which sends a notice of electronic filing to the following: Edwin P. Voss of Brown & Hofmeister, LLP, Counsel for Defendant, 740 East Campbell Road, Suite 800, Richardson, Texas 75081; and Denise V. Wilkerson, Assistant City Attorney, City of Arlington, P.O. Box 90231, Arlington, Texas 76004-3231.
/s/ Charles D. Ferguson Charles D. Ferguson

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 Case 4:05-cv-00470-Y Document 98 Filed 09/19/07 Page 1 of 11 PageID 1035

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, et al., Plaintiffs,
v.
THE CITY OF ARLINGTON, TEXAS, Defendant.

§ § § § CIVIL ACTION NO. 4:05-CV-0470-Y § § §

DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT: Defendant City of Arlington, Texas (“Defendant”), under the Court’s Order Granting
Motion for Leave to File Fourth-Amended Complaint, dated August 9, 2007 (“Order”), and the Court’s Local Rule 7.1(f), submits this reply to Plaintiffs’ Brief in Response to Defendant’s Third Renewed Motion to Dismiss, filed September 4, 2007 (“Plaintiffs’ Response”):
I. INTRODUCTION When Defendant City of Arlington’s Third Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims (“Defendant’s Motion”) and Defendant’s Brief in Support of Its Third Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims (“Defendant’s Brief”) were filed on April 30, 2007, Plaintiffs’ live pleading was their Third Amended Complaint. See Court’s Docket. The Court’s Order, in granting Plaintiffs’ motion to amend their pleadings, found that no changes exist in the legal claims asserted in the Fourth Amended Complaint, when compared to the Third Amended Complaint, except for the addition of three (3) plaintiffs. Order, p. 2. As a result, Defendant respectfully requests that Defendant’s Motion and Brief be considered by the Court as being directed to Plaintiffs’ Fourth Amended Complaint and its identical deficiencies as exist in the Third Amended Complaint (albeit paragraph numbers have changed). This is not a class action case. Plaintiffs’ Response, at pp. 3-4, nonetheless confirms that Plaintiffs’ goal is for the City to remediate its entire streets, sidewalks and public right-of-
DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 1

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way system, even in residential areas of the City. Plaintiffs’ attempted imposition of technical ADAAG standards on sidewalks and other structures in the public rights-of-way, where no City programs, services or activities are offered, is not authorized by the ADA or Rehabilitation Act. Plaintiffs’ allegations fail to state a plausible claim of discrimination and should be dismissed.
II. ARGUMENT AND AUTHORITIES A. The Legal Standard for Motions to Dismiss Under Rule 12
While Plaintiffs’ Response does not materially dispute this section of Defendant’s Motion and Brief, it also completely fails to address the recent United States Supreme Court decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007)(decided on May 21, 2007, after Defendant’s Motion and Brief were filed on April 30, 2007). In Bell Atlantic, the Supreme Court abrogated Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and instead imposed a revised standard for a plaintiff to survive a Rule 12(b)(6) motion to dismiss: plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 127 S.Ct. at 1974. More important to this case, “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic, 127 S.Ct. at 1965. Both the Fifth Circuit and this Court have recognized and applied the Bell Atlantic standard. See In re Katrina Canal Breaches Litig., __ F.3d __, 2007 WL 2200004, at *10 (5th Cir. Aug. 2, 2007); and Garcia v. Boyar & Miller, P.C., 2007 WL 2428572, at *2 (N.D. Tex. Aug. 28, 2007)(slip. op.).
In this case, Plaintiffs have not pleaded a plausible claim of discrimination under the ADA or the Rehabilitation Act beyond the purely speculative level. The only program Plaintiffs allege they were denied access to is the putative “program” of “sidewalks” (and connecting curb ramps). Plaintiffs do not allege that they were excluded from or denied a City program, activity or service, such as the ability to vote, serve on a jury, attend a City Council meeting, or similar program, activity or service. See Tennessee v. Lane, 541 U.S. 509, 524-25 (2004). Plaintiffs’ alleged dates of harm are also vague. Plaintiffs’ have had five opportunities to allege their purported discrimination cause of action, and have increasingly focused their claims not on DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 2

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program exclusion but instead on purported technical violations of 28 C.F.R. §§ 35.149 35.151.1 For example, Plaintiff Frame says he voted at the community center within the last two years even though he alleges it lacks sufficient handicap accessible parking. Plaintiffs’ Fourth Amended Complaint, ¶ 50. That does not state a plausible claim of program access denial. B. Any Violation of the ADA or Rehabilitation Act Prior to July 22, 2003, is
Barred by the Statute of Limitations The applicable limitations period for an ADA case in Texas is two years, and to the extent Plaintiffs’ claims concern alterations occurring prior to July 22, 2003 (two years prior to the date this lawsuit was filed), the two year statute of limitations bars Plaintiffs’ claims. Defendant’s Brief, pp. 3-6. Plaintiffs’ Response does not dispute that law, but instead argues that no limitations period applies because Plaintiffs seek only “equitable” relief. Plaintiffs’ Response, pp. 5-6. The cases Plaintiffs cite, however, stand for the proposition that the equitable tolling doctrine applies to defeat a limitations defense under circumstances where a defendant causes a plaintiff to not pursue his rights. See, e.g., Holmberg v. Armbrecht, 327 U.S. 396 (1946). The equitable tolling doctrine has no applicability here. Plaintiffs’ Fourth Amended Complaint does not allege fraud or any other action by the City that caused Plaintiffs to be delayed in asserting their claims. Plaintiffs’ Response otherwise does not address the well-established Fifth Circuit authorities concerning the statute of limitations defense, or adequately differentiate the holding in Deck v. City of Toledo, 56 F. Supp. 2d 886, 891 (N.D. Ohio 1999) that held that the two year Ohio statute of limitations did indeed apply to the Deck Plaintiffs’ ADA claims. See Plaintiffs’ Response, p. 7. The difference between this case and Deck is that those plaintiffs alleged specific dates of alteration and the complete failure to install curb ramps. Plaintiffs here do not allege one single specific alteration that was made within the two year limitations that did not
1 See Court’s Order Denying as Moot Motion to Dismiss and Directing Amended Complaint, dated July 31, 2006. DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 3

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result in the installation of a curb ramp (the only specific regulation that was enforced in Deck). Plaintiffs’ allegations, therefore, fail to state a plausible claim for relief.
As predicted, Plaintiffs assert a “continuing violation” theory to avoid the application of the two year statue of limitations. Plaintiffs’ Response, pp. 6-9. There is no continuing violation if Plaintiffs cannot point to a specific violation occurring within limitations (indicating a failure on Plaintiffs’ part to conduct adequate pre-filing inquiry under Rule 11). In Deck, for example, there were numerous specific violations within the limitations period. Deck, 56 F.Supp.2d at 892-94. Plaintiffs’ allegations here, that curb ramps are constructed on a continual basis in the City, do not allege a violation of Title II but instead are allegations of compliance with Title II.
Plaintiffs’ Response nonetheless argues that Plaintiffs can bring claims for sidewalks that are allegedly currently out of technical compliance without showing whether they were constructed or altered in compliance with then-existing regulations. Plaintiffs’ alleged duty of perpetual maintenance, and the other issues raised in this case, are important questions of first impression both in this Court and in the Fifth Circuit warranting certification for immediate appeal of these critical issues under 28 U.S.C. § 1292(b).2 C. Plaintiffs Lack Legal Standing to Bring This Action
Plaintiffs’ Response asserts that Plaintiffs have standing to enforce the technical requirements set forth in the ADA regulations issued by the Department of Justice. Plaintiffs’ Response, pp. 11-15. Such an assertion is erroneous. Since the Plaintiffs are not the Department of Justice (“DOJ”), they do not stand in the shoes of the Department of Justice. The ADA applies to the City because the City is a “public entity” as defined under Title II. See 42 U.S.C. § 12131(1)(a). The DOJ is authorized to provide technical assistance to the City
2 The City has previously expressed its desire to pursue certification for appeal under § 1292(b), and Plaintiffs have not objected to certification. Compare Defendant’s Motion, p. 6, with Plaintiffs’ Response. The answer to these scope-of-the-case questions will also control the scope of discovery, the scope of any settlement discussions and prospects, the nature of any further motions (dispositive or otherwise), and (if necessary) trial. Certification for appeal under 28 U.S.C. § 1292(b) is not unusual in ADA litigation. See Deck v. City of Toledo, 76 F.Supp.2d 816, 817 (N.D. Ohio 1999)(certifying issues to Sixth Circuit under § 1292(b)). Apparently Deck settled, however, so that there is no Sixth Circuit opinion. DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 4

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pursuant to Section 506 of the ADA. See 42 U.S.C. § 12206. The DOJ is also authorized, under 28 C.F.R. Part 35, subpart F, to determine the City’s compliance with Title II and the DOJ’s implementing regulations, to issue findings, and where appropriate, to negotiate and secure voluntary compliance agreements. The United States Attorney General is further authorized, under 42 U.S.C. § 12133, to bring a civil action to enforce Title II of the ADA, should the DOJ fail to secure voluntary compliance pursuant to subpart F.
Rather than follow that statutory and regulatory scheme, Plaintiffs are attempting to personally enforce violations of technical regulations regarding slope and grade requirements of sidewalks and curb ramps. Such technical regulations go beyond the straightforward requirements of the ADA itself and its non-discrimination requirement. Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006). Allowing individuals to create a federal case from a crack or other deformity in a city sidewalk improperly extends potential ADA liability. Since the basis of Plaintiffs’ claims are alleged technical violations of regulations, rather than exclusion from City programs, activities or services, Plaintiffs’ allegations should fail. See, e.g., Carrasquillo v. City of New York, 324 F.Supp.2d 428, 443 (S.D.N.Y. 2004)(plaintiff’s alleged difficulty in attending a prison activity, rather than exclusion from it, found insufficient to state an ADA claim).
Plaintiffs’ Response, addressing whether they may file suit alleging a claim that the City’s transition plan is defective, is likewise confusing. Plaintiffs’ Response, pp. 14-15. While agreeing that no cause of action exists for a plaintiff to bring a claim based upon a violation of the regulation that required the City’s transition plan, Plaintiffs’ Response nonetheless concludes that “Plaintiffs can point to Arlington’s failure to adopt and implement a self-evaluation and transition plan as the reason why the City fails to comply with the ADA.” Id. Whether that is true as an evidentiary matter is not relevant here; Plaintiffs’ Response, therefore, agrees that no cause of action exists to complain about alleged violations of the regulations that required transition plans and self-evaluation plans. Id.
DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 5

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D. Plaintiffs Have Failed to Allege Facts Which Show Sufficient Alteration to Trigger a Violation of the ADA or its Accompanying Regulations or a Violation of the Rehabilitation Act Plaintiffs’ lawsuit asserts global allegations and claims concerning the entirety of the
City’s (misnomered) “rights-of-way program.” Plaintiffs’ Response, pp. 15-20. Plaintiffs’ claims are allegations of first impression for this Court and in this Circuit. Plaintiffs’ expansive interpretation of the ADA, suggesting that a duty exists to maintain and construct new sidewalks and curb ramps at every location complained of by Plaintiffs, renders the statute unconstitutional.3 See Section F, below. Rather than defend this position, Plaintiffs’ Response states: “Plaintiffs simply request that Arlington make their public rights-of-way readily accessible around areas of public accommodation.” Plaintiffs’ Response, p. 20. There is nothing “simple” in Plaintiffs’ attempt to force the City to spend tens of millions of dollars it receives from taxpayers to make extensive, global sidewalk improvements throughout the City in this nonclass action litigation. See, e.g., Bacon v. City of Richmond, 475 F.3d 633, 639 (4th Cir. 2007)(in Title II case, court reinforced key liability standards, concluding that specific nature of the violation determines specific scope of remedy). E. Sidewalks in the Public Rights-of-Way are Not a Program, Activity or
Service Under the ADA and There are No Existing Accessibility Standards Plaintiffs’ case is based upon the premise that sidewalks are defined as a “program, service or activity” of the City. Plaintiffs’ Response, pp. 16-20. The implementing regulations do not support that premise. In 36 C.F.R. 1191 (Final Rule), the standards for public rights-of-way are listed as “Reserved.” The editorial amendments contain several comments on this intentional omission. For example, at comment 14 regarding Public Rights-of-Way, “Section 14 of the interim rule contained new construction provisions which were not intended to apply to existing facilities in the public right-of-way. With respect to alterations, section 14 contained less stringent scoping and technical provisions for alterations to established rights-of-way where
3 Plaintiffs are improperly requesting that sidewalks be built where no sidewalk is currently located. See, e.g., Plaintiffs’ Fourth Amended Complaint, ¶¶ 27, 28, 30, 48, 53 and 54. DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 6

Case 4:05-cv-00470-Y Document 98 Filed 09/19/07 Page 7 of 11 PageID 1041
there is site infeasibility. . . . The guidelines contained in section 14 of the interim rule have been adopted by the State of Alabama and are being used to guide policies on pedestrian accessibility in the States of California, New Jersey and Florida.” 63 Fed. Reg. 2,013 (Jan. 13, 1998)(emphasis added). It is noteworthy that Texas is not included in those standards. The original regulation (at 36 C.F.R. Part 1191, Interim Final Rule) provided, in the definition for “Continuous Passage,” the following: “Although public sidewalks are subject to technical provisions similar to those that apply to accessible routes, public sidewalks are not required to meet guidelines for accessible routes unless the public sidewalk is used to provide the required accessible route connecting accessible elements on a site.” (emphasis added).4
As a result, contrary to the argument in Plaintiffs’ Response, under either the old C.F.R., or the existing one, sidewalks in public rights-of-way are not generally and globally required to be accessible. To circumvent that reality, Plaintiffs cite City of Sacramento v. Barden, 292 F.3d 1073 (9th Cir.), cert. denied, 539 U.S. 958 (2002) for the argument that streets, sidewalks and curb ramps are themselves “programs and services” of the City. Plaintiffs’ Response, pp. 3, 1617.5 The Court should review Plaintiffs’ allegations in this case with the denial-of-access-to-acity-program standard in mind, rather than adopting Plaintiffs’ global argument that the City’s entire streets, sidewalks and curb ramps are “programs and services” (a “right-of-way program”) that must be made accessible in their entirety. City of Sacramento v. Barden, a class-action case, is plainly and correctly viewed as an anomaly that should not be followed.6
4 Hence, City sidewalks may not necessarily be “facilities” under 28 C.F.R. §§ 35.104 and 35.150. See, e.g., Brown v. 1995 Tenet Paraamerica Bicycle Challenge, 959 F.Supp. 496, 499 n.1 (N.D. Ill. 1997). 5 Not even all of Plaintiffs’ authorities consistently so hold. For example, Plaintiffs cite the case Parker v. Universidad de Puerto Rico, 225 F.3d 1, 6 (1st Cir. 2000) for their position that “streets, sidewalks and curb ramps are among the ‘programs and services’ that must be made accessible under Title II.” Plaintiffs’ Response, p. 3. Actually, the Parker case merely required that a public entity is obligated to ensure that a service, program or activity at a public facility, when viewed in its entirety, is accessible to individuals with disabilities. Parker, 225 F.3d at 6 (“Although the University is not required to make every passageway in and out of the Monet Garden accessible, it must provide at least one route that a person in a wheelchair can use to reach the Monet Garden safely, absent a defense that excuses such performance”). 6 Plaintiffs’ Response attempts to add credibility to their position (that a few plaintiffs in a non-class action case may assert claims both on behalf of themselves and all other disabled persons in the City to force the City to correct all DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 7

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Even if this Court were to adopt the expansive definition that sidewalks are “programs,” Plaintiffs cannot plausibly show that making all of the streets and sidewalks in the City conform to current ADAAG regulations is a “reasonable accommodation,” as is their burden. See Wright v. Giuliani, 230 F.3d 543, 548 (2nd Cir. 2000). Instead, Plaintiffs’ claims assert a responsibility on the City that amounts to a fundamental or substantial modification that is not appropriate. See Alexander v. Choate, 469 U.S. 287 (1985). In Alexander, the Supreme Court considered whether the Rehabilitation Act was violated by Tennessee’s proposed reduction in the number of in-patient hospital days per year for which state Medicaid would reimburse hospitals on behalf of each recipient. The plaintiffs there argued that the reduction was discriminatory because it would have a disproportionate effect on disabled, lower-income Medicaid recipients. The Supreme Court disagreed. Noting that its previous decisions had struck a balance between the statutory rights of the handicapped to be integrated into society with the legitimate interests of federal grantees in preserving the integrity of their programs, a grantee need not be required to make “fundamental” or “substantial” modifications to accommodate the handicapped (but may be required to make “reasonable” modifications). Alexander, 469 U.S. at 300 (citing Community College v. Davis, 442 U.S.397, 412-13 (1979)). As a result, the Court rejected the argument that the Rehabilitation Act guarantees handicapped persons “equal results” from government initiatives. Plaintiffs’ claims here are “equal results” claims, and likewise should be rejected.7
sidewalks and curb ramps in the City) by asserting the purported strength of the U.S. Department of Justice’s briefing in the City of Sacramento v. Barden case before the United States Supreme Court. Plaintiffs’ Response, p. 17 n. 7. Plaintiffs’ Response boldly asserts that the Supreme Court was so impressed with the DOJ’s brief, “it quickly denied Sacramento’s petition.” Id. Besides the obvious observation (i.e., no one knows for sure why the Supreme Court decides to take or to not take a case), it is equally plausible (and, indeed, is the case) that the Supreme Court denied certiorari simply because the City of Sacramento case had settled. 7 Some of Plaintiffs’ claims actually seek better-than-equal results, e.g., seeking remediation of sidewalks that stop abruptly or are non-contiguous. Plaintiffs’ Fourth Amended Complaint, ¶¶ 27, 28, 30, 48, 53 and 54. DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 8

Case 4:05-cv-00470-Y Document 98 Filed 09/19/07 Page 9 of 11 PageID 1043
F. Alternatively, an Interpretation that the ADA or the Rehabilitation Act Requires Construction, Maintenance and Retrofitting Sidewalks is Unconstitutional Plaintiffs’ Response confirms that this lawsuit seeks to impose a broad and expansive
readily accessible standard on all City rights-of-way, at commercial and residential areas. Plaintiffs avoid addressing the City’s constitutional argument and assert that Title II is constitutional, citing City of Boerne v. Flores, 521 U.S. 507 (1997). Plaintiffs’ Response, p. 20. Nonetheless, Plaintiffs’ attempt to apply the ADA and the Rehabilitation Act in the broad manner they propose renders the statutes unconstitutional. See, e.g., McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 417-33 (5th Cir. 2004) (Garza, J., dissenting from the court’s Eleventh Amendment immunity finding, analyzed the ADA and determined it to be unconstitutional under the Commerce Clause, and under § 5 of the Fourteenth Amendment, in an as-applied review). G. There is No ADA or Rehabilitation Act Claim for Paratransit Waivers and
Releases Plaintiffs’ Response attempts to interject a subjective standard into the Court’s review of whether the City’s requirement (for all persons using its paratransit services to sign waivers and releases) amounts to a denial of “meaningful” access to Arlington’s paratransit services. Plaintiffs’ Response, p. 22. Plaintiffs’ “meaningful access” standard is novel and unique, and is irrelevant. Plaintiffs’ Fourth Amended Complaint does not allege denial of access to the paratransit service. See Plaintiffs’ Fourth Amended Complaint, ¶ 60; and Carrasquillo, 324 F.Supp.2d at 443. Likewise, Plaintiffs further erroneously assert: Arlington’s other argument, that ADA or Rehabilitation Act claims do not trigger reasonable modifications, misses the mark. Arlington’s motion conspicuously fails to mention whether the City’s fixed route system requires patrons to sign liability waivers. In addition to applying the meaningful access standard, Plaintiffs could challenge the liability waiver on the basis that Arlington is requiring more from its paratransit disabled patrons than it requires from non disabled (sic) patrons on fixed route systems. Plaintiffs’ Response, p. 22. No factual basis for this argument exists simply because Arlington does not operate a fixed route transit system in the City. Hence, the City could not make
DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 9

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such a comparative argument.8 The City’s paratransit system is over and above what it provides to its non-disabled citizens. As a result, Defendant’s Motion should be granted because Plaintiffs fail to state a viable claim concerning access to the City’s paratransit services.
WHEREFORE, PREMISES CONSIDERED, Defendant City of Arlington, Texas, prays that the Court grant its motion and dismiss Plaintiffs’ claims against it, and Defendant prays for such other and further relief to which it is justly entitled.
Respectfully submitted,
By: /s/ Edwin P. Voss, Jr. Kent S. Hofmeister State Bar No. 09791700 Edwin P. Voss, Jr. State Bar No. 20620300
BROWN & HOFMEISTER, L.L.P. 740 East Campbell Road, Suite 800 Richardson, Texas 75081 214-747-6100 (Telephone) 214-747-6111 (Telecopier)
Denise V. Wilkerson Assistant City Attorney State Bar No. 20534100 City of Arlington P.O. Box 90231 Arlington, Texas 76004-3231 817-459-6878 (Telephone) 817-459-6897 (Telecopier) ATTORNEYS FOR DEFENDANT
8 This is indicative of Plaintiffs’ repeated failure to conduct reasonable, pre-filing inquiry under Rule 11 of the Federal Rules of Civil Procedure. DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 10

Case 4:05-cv-00470-Y Document 98 Filed 09/19/07 Page 11 of 11 PageID 1045 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of this document was served by certified mail, return receipt requested, upon Mr. John M. Nevins, Moseley Law PC, 3878 Oak Lawn Avenue, Suite 400, Dallas, Texas 75219-4469, and upon Messrs. Miguel M. de la O and Charles D. Ferguson, De la O, Marko, Magolnick & Leyton, 3001 S.W. 3rd Avenue, Miami, Florida 33129, counsel for Plaintiffs, in addition to service by the Court’s ECF System, on the 19th day of September, 2007.
By: /s/ Edwin P. Voss, Jr. Edwin P. Voss, Jr.
DEFENDANT’S REPLY TO PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S THIRD RENEWED MOTION TO DISMISS – Page 11

 
 Case 4:05-cv-00470-Y Document 105 Filed 03/31/08 Page 1 of 9 PageID 1071

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDELL DECKER, SCOTT UPDIKE, JUAN NUNEZ, a minor, by his next friend and mother, GABRIELA CASTRO, MARK HAMMAN, and JOEY SALAS
Plaintiffs,
V.
THE CITY OF ARLINGTON, TEXAS,
Defendant.

§ § § § § § § CIVIL ACTION NO. 4:05-CV-470-Y § § § § § §

ORDER GRANTING THIRD RENEWED MOTION TO DISMISS

Pending before the Court is defendant The City of Arlington’s Third Renewed Motion to

Dismiss [doc. # 86], filed April 30, 2007. After consideration, the Court GRANTS the motion.

I. BACKGROUND On July 22, 2005, Plaintiffs, who are all Arlington residents with disabilities, filed suit against Arlington for discrimination under the Americans with Disabilities Act (“the ADA”) and

Case 4:05-cv-00470-Y Document 105 Filed 03/31/08 Page 2 of 9 PageID 1072
the Rehabilitation Act.1 They also complain of Arlington’s failure to implement a transition plan
as provided by the regulations governing the ADA. Specifically, Plaintiffs asserted that
“Arlington’s system of streets, sidewalks and intersections in . . . crucial areas . . . lack curb
ramps or lack accessible curb ramps and contain sidewalks that drop or rise sharply, stop
abruptly, or are impassable because of major obstructions embedded in them.” (Pls.’ Resp. at 2.)
Arlington moved to dismiss Plaintiffs’ complaint under Rule 12.2 This Court agreed that
Arlington’s limitations arguments seemed to be fatal to Plaintiffs’ claims. However, this Court
declined to dismiss Plaintiffs’ complaint and instead ordered Plaintiffs to amend their complaint
to “adequately allege construction and/or alteration dates or timelines for the locations alleged to
be noncompliant . . . with the ADA and the Rehabilitation Act.” (July 31, 2006, Order at 2.)
Plaintiffs filed an amended complaint, and Arlington has again moved to dismiss it on the basis
of limitations and lack of standing, among other arguments.3
1This is not plaintiff Richard Frame’s first time to file suit under the ADA. In the past five years, Frame has filed 14 lawsuits in this Court against several businesses in Tarrant County for “accommodation discrimination” under Title III of the ADA. Twelve of the suits were voluntarily dismissed. See Frame v. Lowe’s Home Ctrs., Inc., No. 4:03-CV-315-A; Frame v. Outback Steakhouse of Fla., Inc., No. 4:03-CV-870-A; Frame v. Columbia Regency Tex. 1, L.P., No. 4:03CV-1349-Y; Frame v. WRI Overton Plaza, L.P., No. 4:04-CV-028-A; Frame v. Fry’s Elecs., Inc., No. 4:04-CV-414-Y; Frame v. N. Tex. Dist. Council Assemblies of God, No. 4:04-CV-563-Y; Frame v. 9 SC Assocs. Ltd., No. 4:04-CV-721-Y; Frame v. Armin & Anna Mandel Trust, No. 4:06-CV-230A; Frame v. Courtside Plaza Shopping Ctr., L.C., No. 4:06-CV-451-Y; Frame v. Boston Market Corp., 4:06-CV-721-Y; Frame v. Chick-Fil-A, Inc., No. 4:07-CV-308-Y; Frame v. RPI Overland Ltd., 4:07-CV-503-A. One case, along with the instant case, remains pending. Frame v. Cheddar’s Casual Café, Inc., No. 4:07-CV-744-A. Needless to say, the Court is growing weary of Frame’s ADA grievances.
2This motion was Arlington’s second motion to dismiss. This Court denied as moot Arlington’s first motion to dismiss when Plaintiffs amended their complaint after the motion was filed.
3After Arlington filed its third motion to dismiss, Plaintiffs filed another amended complaint which only added more plaintiffs. Because no new claims were added, this Court did not moot Arlington’s motion to dismiss and is now construing the motion as addressing Plaintiffs’ fourth amended complaint.
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II. APPLICABLE LAW A. RULE 12(B)(6)
Arlington moves to dismiss Plaintiffs’ complaint because it fails to state a claim upon which relief may be granted. See FED. R. CIV. P. 12(b)(6). Rule 12 must be interpreted in conjunction with Rule 8(a), which sets forth the requirements for pleading a claim for relief in federal court and calls for “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (holding Rule 8(a)’s simplified pleading standard applies to most civil actions).
“A motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The Court must accept as true all well pleaded, nonconclusory allegations in the complaint, and must liberally construe the complaint in favor of the plaintiff. See id. The plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). In other words, he must plead “enough facts to state a claim to relief that is plausible on its face” and his “factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965, 1974 (2007).
A statute of limitations may support dismissal under Rule 12(b)(6) where the complaint establishes that the action is barred and the pleadings fail to raise a basis to toll the statute. See Jones v. ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003). Likewise, a lack of standing will support a Rule 12 dismissal. See Hosein v. Gonzalez, 452 F.3d 401, 403 (5th Cir. 2006) (holding
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Rule 12(b)(1) dismissal, which is decided under Rule-12(b)(6) standard, appropriate if plaintiff lacks standing because court lacks subject-matter jurisdiction).
B. THE ADA AND THE REHABILITATION ACT 1. The Acts Themselves
Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. § 12101(b)(1) (West 2005). Title II of the ADA prohibits discrimination in the provision of public services: “[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, or be subjected to discrimination by any such entity.” Id. § 12132 (West 2005). The Rehabilitation Act was enacted “to ensure that handicapped individuals are not denied jobs or other benefits because of prejudiced attitudes or ignorance of others.” Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988); see also 29 U.S.C.A. § 794 (West 1999 & Supp. 2007). Because the ADA expressly provides that rights and remedies available under the Rehabilitation Act are also available under the ADA, the law interpreting either statute is applicable to both. See 42 U.S.C.A. § 12133 (West 2005); Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
The ADA authorizes the Attorney General to promulgate regulations implementing its provisions. See 42 U.S.C.A. § 12134(a) (West 2005). One such regulation addresses a public entity’s responsibilities regarding “existing facilities,” a phrase that includes “all or any portion of [its] buildings, structures, sites, complexes, . . . roads, walks, passageways, [and] parking lots” that were in existence at the time of the ADA’s enactment—July 26, 1990. 28 C.F.R. § 35.104
4

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(2006). With respect to newly constructed or altered streets and sidewalks, the regulations require the installation of curb cuts or comparable means of ingress and egress for disabled persons. See id. § 35.151(e) (2006). Consistent with Title II’s emphasis on program accessibility, the regulatory scheme generally does not require public entities to retrofit their existing facilities. See Tennessee v. Lane, 541 U.S. 509, 532 (2004); see also 28 C.F.R. § 35.150(a)(1) (2006).
If structural changes to existing facilities are to be undertaken to accomplish program accessibility, a transition-plan regulation directs a public entity to “develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes.” 28 C.F.R. § 35.150(d)(1) (2006). Public entities with responsibility over streets, roads, or walkways bear an additional burden: the regulation requires those entities to craft, in their transition plan, “a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving . . . State and local government offices and facilities, transportation, places of public accommodation, and employers.” Id. § 35.150(d)(2). Finally, the transition-plan regulation mandates that any structural changes to existing facilities “be made within three years of January 26, 1992, but in any event as expeditiously as possible.” Id. § 35.150(c).
5

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2. Statutes of Limitation Because Title II adopts the remedies and rights set forth in the Rehabilitation Act, the same limitations statute would apply to both claims. See Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998). The determination of a limitations period under the Rehabilitation Act is governed by a three-step inquiry: (1) follow federal law if federal law provides a limitations period; or (2) apply the common law, as modified by Texas law, if no limitations period is provided by federal law; but (3) apply state law only if it is consistent with the Constitution and federal law. See 42 U.S.C.A. § 1988(a) (West 2003); Holmes v. Tex. A&M Univ., 145 F.3d 681, 684 (5th Cir. 1998). The ADA, like many federal civil rights statutes, does not contain a specific statute of limitations. See 42 U.S.C.A. § 12132; Holmes, 145 F.3d at 683. The general federal statute of limitations does not apply to the ADA or the Rehabilitation Act because it only applies to statutes enacted after December 1, 1990, and both the ADA and the Rehabilitation Act were enacted before that date. See 28 U.S.C.A. § 1658 (West 2006). Thus, this Court must apply the Texas statute of limitations governing the state cause of action most analogous to Plaintiffs’ ADA and Rehabilitation-Act claims. See Goodman v. Likens Steel Co., 482 U.S. 656, 660 (1987); Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir. 1992). As Arlington asserts, claims that allege discrimination are essentially claims for personal injury, which are subject to a two-year limitations period in Texas. See TEX. CIV. PAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2007); Hickey, 976 F.2d at 983; accord Deck v. City of Toledo, 56 F. Supp. 2d 886, 890-91 (N.D. Ohio 1999) (holding ADA claims similar to personal-injury or discrimination claim and applying Ohio’s two-year limitation period). While state law determines the applicable limitations period, federal law governs the accrual of a cause of action. See Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983). A cause
6

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of action accrues when “the plaintiff knows or has reason to know of the injury . . . and who has inflicted the injury.” Id.
III. DISCUSSION Plaintiffs filed their complaint on July 22, 2005. Thus under the two-year limitation period, any violation of the ADA or the Rehabilitation Act must have occurred after July 21, 2003. Indeed, this Court implicitly recognized the limitations problem in this case by ordering Plaintiffs to replead their case and allege specific dates of the City’s alteration or construction efforts. Unfortunately, Plaintiffs’ amended complaint does not remedy this problem. Plaintiffs allege that all of the actions taken by Arlington on the complained-of streets and sidewalks occurred anywhere from three to ten years ago. (Pls.’ 4th Am. Comp. at ¶¶ 34, 36, 37, 43, 45, 46, 47, 48, 50, 53, 54, 55, 56.) Although Plaintiffs allege that they have attempted to use these roadways and sidewalks during the limitations period, their discrimination cause of action accrued when the improvements took place. See Deck, 56 F. Supp. 2d at 892 (holding limitations began to run on ADA claim regarding insufficient curb ramps at the time the discriminatory act occurred and not in response to the continuing effects of those acts). Plaintiffs’ argument that Arlington is committing a continuing violation of the ADA and the Rehabilitation Act does save them from the effects of limitations. The continuing-violation theory is an exception to a limitations period because such a violation alleviates the staleness concerns that statutes of limitation address. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982). But even under this theory, at least one of the discriminatory acts must have occurred within the limitations period. See id. By Plaintiffs’ own account, the most recent
7

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alteration by Arlington was three years before the complaint was filed. Further, Arlington convincingly rebuts Plaintiffs’ remaining arguments in opposition to the application of limitations. (Def.’s Br. in Supp. at 4-8; Def.’s Reply at 3-4.)
Plaintiffs’ transition-plan claims are also subject to dismissal. Under some circumstances, Title II creates a private right of action against noncompliant public entities. See 42 U.S.C. § 12133 (West 2005); see also Lane, 541 U.S. at 517. Plaintiffs, however, are raising violations of, and rights to enforce, the transition-plan regulation. An implementing regulation sometimes may be enforced through a private right of action available under the statute it implements. See Alexander v. Sandoval, 532 U.S. 275, 284-85 (2001). But a private plaintiff may not, merely by referencing the underlying statute, enforce an implementing regulation that prohibits broader conduct than the underlying statute itself prohibits. See generally id. at 286 (stating power to create private right of action lies exclusively with Congress). Thus, a private right of action may be conceived only by a statute that clearly evinces Congressional intent to bestow such a right. See id. at 286-87. In other words, an implementing regulation, on its own, cannot create a private right of action. See id. at 291. The transition-plan regulation imposes obligations on public entities different than and beyond those imposed by the ADA itself. As such, the transition-plan regulation is not enforceable through a private right of action under Title II. See, e.g., Iverson v. City of Boston, 452 F.3d 94, 99-100 (1st Cir. 2006); Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004); Cherry v. City College of San Francisco, No. C04-04981 WHA, 2005 WL 2620560, at *2 (N.D. Cal. 2005). But see Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 856-60 (10th Cir. 2003) (holding transition-plan regulation enforceable through private suit).
8

Case 4:05-cv-00470-Y Document 105 Filed 03/31/08 Page 9 of 9 PageID 1079 IV. CONCLUSION
Because Plaintiffs’ discrimination claim solely focuses on alterations to roadways and sidewalks that occurred at least three years before Plaintiffs filed suit, it is barred by the statute of limitations. Further, Plaintiffs do not have standing to enforce, through a private right of action, the transition-plan regulation.
SIGNED March 31, 2008. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE
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 Case 4:05-cv-00470-Y Document 109 Filed 04/14/08 Page 1 of 8 PageID 1099

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDELL DECKER, and SCOTT UPDIKE,
Plaintiffs,
vs.
THE CITY OF ARLINGTON, a municipal corporation,
Defendant.

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Civil Action No. 4:05-CV-0470-Y

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PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND THE JUDGMENT OF DISMISSAL AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Plaintiffs, Richard Frame, Wendell Decker and Scott Updike (collectively,

“Plaintiffs”), pursuant to Federal Rule of Civil Procedure 59(e), move this Honorable

Court to alter and/or amend the judgment of dismissal. As grounds, Plaintiffs state:

1. The court committed a manifest error of law applying the limitations period

to the facts of this case. The date the City of Arlington (“Arlington”) created a barrier is

not when a cause of action accrues. As the court correctly noted, a cause of action

accrues when a plaintiff learns of the injurious act. Thus, this Court erred in dismissing

the Fourth Amended Complaint because the court focused on whether Arlington created

the barriers during the two (2) year period prior to the filing of the Complaint, rather than

on whether Plaintiffs learned of the barriers during that period.

2. The court appears to have been influenced, in part, by Plaintiff Frame’s

various ADA lawsuits filed over the past give (5) years.

TELEPHONE 305/285-2000

de la O ƒ Marko ƒ Magolnick ƒ Leyton
3001 S.W. 3RD AVENUE, MIAMI, FLORIDA 33129

FACSIMILE 305/285-5555

Case 4:05-cv-00470-Y Document 109 Filed 04/14/08 Page 2 of 8 PageID 1100

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Case No. 4:05-CV-0470-Y

MEMORANDUM OF LAW This Court has considerable discretion in deciding whether to grant or deny a motion to amend or alter under Federal Rule of Civil Procedure 59. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). In making its decision, the Court must consider two competing values (1) the need for finality, and (2) the need to render just decisions on the basis of all the facts. Id. Rule 59 motions provide a party the opportunity to correct manifest errors of law. See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). 1. THE CAUSE OF ACTION ACCRUED IN THIS CASE WHEN
PLAINTIFFS FIRST ENCOUNTERED THE BARRIERS IN ARLINGTON. Plaintiffs believe this Court incorrectly applied the standard for determining when a cause of action accrues to the facts of this case. This Court correctly noted that “a cause of action accrues when ‘the Plaintiff knows or has reason to know of the injury . . . and who has inflicted the injury.’ [See Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983)].” Order at 6-7. This Court, however, then found that “although Plaintiffs allege that they have attempted to use these roadways and sidewalks during the limitations period, their discrimination cause of action accrued when the improvements took place.” Id. at 7. This conclusion is clearly incorrect, and is diametrically opposed to this Court’s holding that a cause of action accrues when “the Plaintiff knows or has reason to know of the injury”; it does not always accrue when the improvements take place. Id. Any doubt as to when Plaintiffs first encountered the violations set forth in the Fourth Amended Complaint should be resolved in favor of the Plaintiffs.
A motion to dismiss under rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be

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taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). The district court may not dismiss a complaint under rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Blackburn [v. Marshall], 42 F.3d [925,] 931 [(5th Cir. 1995)]. This strict standard of review under rule 12(b)(6) has been summarized as follows: “The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969).
Lowrey v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir. 1997).
The motion before this Court was to dismiss the Fourth Amended Complaint, not
for summary judgment. It was premature for this Court to assume that no discriminatory
acts occurred within the limitations period. Certainly there was no allegation(s) in the
Fourth Amended Complaint establishing that all the Plaintiffs had knowledge of all of the
violations for over two years prior to the institution of this lawsuit. The opposite is true.
Plaintiff, Scott Updike (“Updike”), did not even become disabled until September 8,
2003. Fourth Am. Compl., ¶ 51. The initial Complaint in this cause was filed on July 22,
2005. Thus, every barrier Plaintiff Updike encountered in Arlington was
discovered within two years of the filing of the complaint.
It is irrelevant when the barrier was created by Arlington, so long as it was
created after the 1992 enactment of the ADA. A cause of action accrues when “the
Plaintiff knows or has reason to know of the injury.” To find otherwise means that
veterans disabled during the Iraq War will be unable to challenge barriers to access, nor
will new residents to Arlington; even as yet unborn disabled persons will be left without
remedy for Arlington’s willful violation of the ADA.

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There is no other type of discrimination where such a limitations effect would be tolerated. Imagine if a restaurant in Arlington had a policy of excluding AfricanAmericans. No court would rule that unless African-Americans attempted to gain entry – and filed suit – during the two years after the policy went into effect, any subsequent victims would be time barred for seeking injunctive relief. Nor would any court provide safe harbor via the statute of limitations to a company with a policy of terminating pregnant women simply because no woman brought suit within two years after implementation of the unlawful policy.
These examples are, of course, ridiculous. Each act of discrimination starts its own limitations period. Such is the case with Plaintiffs here. Each time they try to cross a street for the first time, and are unable to because an intersection lacks curb cuts, it is a new act of discrimination. Obviously, if a person encounters the barrier and chooses not to act for two years, that person is time barred from filing suit. However, that person’s individual decision has no effect on the limitations period for the next person that encounters the same barrier. Acts of discrimination are not acceptable simply because of the passage of time, or simply because others in the same boat encounter them and choose not to complain.
2. EVEN IF PLAINTIFFS’ CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS, THE DEFENDANT’S ACTIONS ARE A CONTINUING VIOLATION OF THE ADA WHICH OCCURRED DURING THE LIMITATIONS PERIOD.
This Court recognized that the continuing violation theory “does save [Plaintiffs] from the effects of limitation.” Id. The court further correctly stated that “[b]ut even under this theory, at least one of the discriminatory acts must have occurred within the limitations.” Id. However, the “discriminatory act” that must have occurred within the

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limitations period is not the improvement of the public rights of way, but rather Plaintiffs’ exposure to the non-compliant, inaccessible, public rights of way.
This Court cites with approval to Deck v. City of Toledo, 56 F. Supp. 2d 886 (N.D. Ohio 1999). Indeed, there is little difference between Deck and the instant case. It is important to note that in Deck the court responded to the Plaintiffs’ concern – that they would need to “scour the newspaper for evidence of recently altered public facilities, visit each altered facility and, if necessary, challenge its accessibility within two years of the project’s completion” – by noting that the “limitations period is measured beginning only from the time when the plaintiff knew or should have known of the injury.” Deck, 56 F. Supp. 2d at 892.
Moreover, Deck held that even if the two-year statute barred the claim, Plaintiffs could nevertheless proceed under the continuing violation theory. For this holding, Deck relied heavily on Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S. Ct. 1114 (1982), where the continuing violation theory was first articulated by the Supreme Court. The Court held that “statutes of limitations . . . are intended to keep stale claims out of the Courts . . . . Where the challenged violation is continuing one, the staleness concern disappears.” Id. at 380, 102 S. Ct. at 1125. The Court concluded:
“Where a Plaintiff . . . challenges not just one incident of [unlawful] conduct . . . but an unlawful practice that continues into the limitations period, [in such cases] the complaint is timely when it is filed within [the statute of limitations period of the last asserted occurrence of that practice.” Id. Deck also held that where a city continuously constructs inaccessible curb ramps, a Court can find a policy of discriminatory action. Deck, at 893-95. Where such a policy exists, the continuing violation theory will allow plaintiffs to proceed. The Fourth

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Amended Complaint pleads such a pattern of discrimination by Arlington. See Fourth

Am. Compl., ¶¶ 6, 7, 58.

3. THE COURT’S WEARINESS WITH PLAINTIFF FRAME IS UNJUSTIFIED.

Plaintiff, Richard Frame (“Frame”), was surprised by this Court’s comments in

footnote 1 of the Order. The Court has apparently grown “weary” of Plaintiff Frame

based on nothing more than the number of filings. This Court took it upon itself to

research the various ADA lawsuits filed by the Plaintiff Frame. Unfortunately, the

research was incomplete. Attached as Exhibit “A” is an Affidavit from Plaintiff Frame

setting forth in detail the results of each of his various lawsuits in this District. Each of

these filings followed an attempt by Plaintiff Frame to use the respective defendant’s

place of public accommodation. All the lawsuits that have been concluded were

successful in obtaining architectural changes at a place of public accommodation that was previously inaccessible to the disabled.1

It is unfortunate that this Court has grown “weary” of Plaintiff Frame for his

actions in vindicating the rights granted to him by the United States Congress, and for

enforcing a law that has been on the books for other fifteen (15) years but is widely

ignored by businesses all across this country. This Court should recognize that Plaintiff

Frame’s actions are largely selfless insofar as he gains no monetary reward, but creates

access for himself and others who will come after him. The relief sought by Plaintiff

Frame in these cases is critical to all disabled persons in Arlington.

Experts in the field have suggested that “[d]isability is not really the cause of an undignified, harsh life. The real cause is lack of access to buildings, jobs, transportation, segregation and denial of services.” Mary Johnson, Jerry’s Kids, THE NATION, Sept. 14, 1992, at 232. Congress,

1 The only exception was a lawsuit where the defendant sold the premises and therefore was no longer in possession and control.

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recognizing the truth of this assertion, took a monumental step toward ending such discrimination by enacting the Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12101, et seq. The underlying premise to this legislation is that it is preferable to provide access to opportunities rather than to Atake care of@ people with disabilities.
Doe v. Judicial Nominating Commission, 906 F. Supp. 1534, 1538 (S.D. Fla. 1995).
CONCLUSION
For the foregoing reasons, this Court should amend and/or alter the judgment of
dismissal and allow Plaintiffs’ claims to go forward.
Respectfully submitted,
DE LA O, MARKO, MAGOLNICK & LEYTON Attorneys for Plaintiffs 3001 S.W. 3rd Avenue Miami, Florida 33129 Telephone: (305) 285-2000 Facsimile: (305) 285-5555

By:________________________ Miguel M. de la O Florida Bar No. 0822700 delao@dmmllaw.com Charles D. Ferguson Florida Bar No. 0741531 ferguson@dmmllaw.com
LEAD COUNSEL

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MOSELEY · MARTENS, LLP John L. Freeman, Esq. State Bar No. 07425500 John Mitchell Nevins, Esq. State Bar No. 14935800 4949 Hedgcoxe Road, Suite 270 Plano, Texas 75024-3928 Telephone: (214) 525-3905 Facsimile: (214) 387-9434
LOCAL COUNSEL

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by U.S. Mail and facsimile, this 14th day of April 2008, to Edwin Voss, Esq., Brown & Hofmeister, LLP, Counsel for Defendant, 740 East Campbell Road, Suite 800, Richardson, Texas 75081 (214-747-6111).

______________________ Miguel M. de la O

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 Case 4:05-cv-00470-Y Document 110 Filed 04/29/08 Page 1 of 8 PageID 1111

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDALL

§

DECKER, SCOTT UPDIKE, JUAN

§

NUNEZ, a minor, by his next friend

§

and mother, GABRIELA CASTRO,

§

MARK HAMMAN, and JOEY

§

SALAS,

§

§

Plaintiffs,

§

§

vs.

§

§

THE CITY OF ARLINGTON,

§

TEXAS,

§

§

Defendant.

§

Civil Action No. 4:05-CV-0470-Y

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT: Defendant City of Arlington, Texas (“Defendant”), pursuant to Fed. R. Civ. P. 59(e) and
the Court’s Local Rule 7.1(e), submits the following response to Plaintiffs’ Motion to Alter and/or Amend the Judgment of Dismissal and Memorandum of Law in Support Thereof, filed April 14, 2008 (“Plaintiffs’ Motion”), and urges the Court to deny Plaintiffs’ Motion. In support hereof, Defendant respectfully shows the Court the following:
I. INTRODUCTION Plaintiffs’ Motion is filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. That rule states: (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 1

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Fed. R. Civ. P. 59(e) (Supp. 2007). A Rule 59(e) motion “calls into question the correctness of a judgment.” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). Plaintiffs’ Motion
was filed within ten (10) days of entry of the Court’s Final Judgment in this case (which entry
date was April 1, 2008). See Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 175 (5th Cir. 1990). Such a motion is not the proper vehicle, however, for rehashing evidence,
legal theories or arguments that were or could have been offered or raised before the entry of judgment. Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990). Instead, Rule 59(e)
“serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.” Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.
1989) (internal quotations omitted). Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly. See Clancy v. Employer’s Health Ins. Co.,
101 F.Supp.2d 463, 465 (E.D. La. 2000) (citing 11 CHARLES A. WRIGHT, ARTHUR R.
MILLER & MARY K. KANE, Federal Practice & Procedure, § 2810.1, at 124 (2d ed. 1995)).
Plaintiffs’ Motion asserts, as its grounds for requesting this Court to vacate its judgment
and reinstate Plaintiffs’ case, the following: (1) the Court’s commission of a “manifest error of
law” by applying the statute of limitations to the facts alleged in this case; and (2) the Court’s
appearing “to have been influenced, in part, by Plaintiff Frame’s various ADA lawsuits filed over the past give (sic) (5) years.” Plaintiffs’ Motion, p. 1.1 Plaintiffs have attached to their motion the Affidavit of Richard Frame, ostensibly in support of Plaintiffs’ Motion.2 For the
1 Plaintiffs’ Motion does not assert as a ground for relief that the Court’s other ruling, that Plaintiffs do not have standing to enforce through a private right of action the transition plan regulation, should be changed. 2 Notwithstanding this Court’s prior admonitions to Plaintiffs’ counsel to comply with this Court’s Local Rules (see this Court’s Order Granting Amended Motion for Extension and Rendering Moot Motion for Sanctions, filed December 14, 2005, at n.1; and Order Striking and Unfiling Document, filed August 25, 2006), Defendant notes that Plaintiffs’ Motion does not comply with this Court’s Local Rule 7.1, or the Court’s rules regarding electronic case filing procedures, in the following particulars: (a) the motion, brief and appendix are all contained in one document rather than in three separate documents, (b) no proposed order was submitted to the Court, (c) no paper copy of Plaintiffs’ Motion appears to have been forwarded to the Court, (d) the certificate of service is in incorrect form, and DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 2

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reasons set forth herein, in the Court’s Order Granting Third Renewed Motion to Dismiss, dated March 31, 2008 (the “Court’s Order”), in Defendant City of Arlington’s Third Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims (“Defendant’s Motion to Dismiss”), in Defendant’s Brief in Support of Its Third Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Claims (“Defendant’s Brief”), and in Defendant’s Reply to Plaintiffs’ Brief in Response to Defendant’s Third Renewed Motion to Dismiss (“Defendant’s Reply”), Plaintiffs’ Motion should be denied in its entirety.
II. ARGUMENT AND AUTHORITIES Plaintiffs’ Motion needlessly requests this Court to review the same argument and authorities it already considered when it entered Final Judgment in this case. One of the grounds asserted in Defendant’s Motion to Dismiss was that the applicable statute of limitations barred Plaintiffs’ discrimination claims because Plaintiffs failed to allege that Defendant’s discriminatory events occurred within two years prior to the filing of this lawsuit. See Defendant’s Motion to Dismiss, p. 4; and Defendant’s Brief, pp. 4-8. The Court correctly observed that there was no allegation that Defendant’s creation of alleged barriers occurred within two years of Plaintiffs’ filing suit. See Court’s Order, pp. 6-8. Plaintiffs’ Motion nonetheless asserts that the “date the City of Arlington (‘Arlington’) created a barrier is not when a cause of action accrues.” Plaintiffs’ Motion, p. 1. Plaintiffs’ Motion fails to refer the Court, however, to any authority whatsoever to support Plaintiffs’ argument. See, generally, Plaintiffs’ Motion. Plaintiffs based their claims on alleged defective construction and/or alteration of Defendant’s sidewalk and curb ramp facilities. See, generally,
(e) the signatures appearing in the signature block and certificate of service are in improper form. See, also, this Court’s Local Rule 11.1. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 3

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Plaintiffs’ Fourth Amended Complaint. Plaintiffs’ Motion’s attempt to shift the focus of their case by asserting, on the one hand, that Defendant should be liable for failing to properly construct its sidewalk and curb ramp facilities at any time after 1992, yet on the other hand, that liability should attach to Defendant when any disabled person personally learns of such construction failure more than two years prior to filing suit, inconsistently applies the law. In other words, Plaintiffs’ Motion fails to explain Plaintiffs’ inconsistent attempt to point to Defendant’s allegedly defective construction, on the one hand, yet on the other hand disregard the date of construction by focusing on Plaintiffs’ alleged discovery of these events, in order to avoid application of the statute of limitations. This Court’s analysis, therefore, was correct, and the Final Judgment should not be altered or amended.
Further, in an emotional argument, Plaintiffs assert that “it is irrelevant when the barrier was created by Arlington, so long as it was created after the 1992 enactment of the ADA.” Plaintiffs’ Motion, pp. 3-4. Again, Plaintiffs cite no authority for their position. Id. Plaintiffs’ argument focuses on the encounter by Plaintiffs of the alleged sidewalk or curb ramp barrier rather than on the date of alleged improper construction of the sidewalk or curb ramp, even after the Court’s Order Denying as Moot Motion to Dismiss and Directing Amended Complaint, at p. 2, requested more specific factual allegations about construction dates. Plaintiffs’ five pleading attempts nonetheless never complied with the Court’s request, nor did Plaintiffs provide any factual allegations in order to show their compliance with the applicable statute of limitations. Plaintiffs’ Motion’s egregious lack of citation to any authority to support Plaintiffs’ position renders Plaintiffs’ Motion somewhat frivolous.
Plaintiffs’ Motion then asserts, as did Plaintiffs’ responses to Defendant’s Motion to Dismiss, that the continuing violation theory causes their claims to survive Defendant’s Motion to Dismiss. Plaintiffs’ Motion, pp. 4-6. As the Court’s Order correctly analyzed, at pp. 7-8,
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 4

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Plaintiffs failed to allege any construction or alteration by Defendant of any sidewalk or curb ramp sooner than three years before the Plaintiffs’ complaint was filed. Id. See, also, Defendant’s Brief, pp. 4-8; and Defendant’s Reply, pp. 3-4. Plaintiffs’ Motion likewise provides the Court no basis upon which to reverse the Final Judgment in this issue.
Plaintiffs’ Motion asserts that the Court incorrectly applied Deck v. City of Toledo, 56 F.Supp.2d 886 (N.D. Ohio 1999). Plaintiffs’ Motion, pp. 5-6. Plaintiffs’ response to Defendant’s Motion to Dismiss did not differentiate the holding in Deck, where Deck held that the two-year statute of limitations in Ohio applied to the ADA claims asserted by the Deck plaintiffs. See Plaintiffs’ Response, p. 7. The same is true in Plaintiffs’ Motion. This Court adequately reviewed Plaintiffs’ claims, and the applicable cases that address the statute of limitations applicable to Plaintiffs’ claims, and correctly found that, in light of Plaintiffs’ failure to allege any specific construction or alteration that was made within the two-year limitations period, Plaintiffs’ claims necessarily should be dismissed. See Court’s Order, pp. 6-8. Nothing in Plaintiffs’ Motion adds new argument or authority to this Court’s analysis of that issue.
Next, Plaintiffs expressed displeasure with footnote 1 in the Court’s Order. Plaintiffs’ Motion, pp. 6-7, and Affidavit of Richard Frame, attached as Exhibit A to Plaintiffs’ Motion. Plaintiff Frame’s Affidavit does not cure any of the statute of limitations defects outlined in the Court’s Order, and does not justify this Court’s reversal of the Final Judgment entered in this case. While the Affidavit of Richard Frame confirms the Court’s observation regarding the numerous lawsuits filed in this Court by Plaintiff Frame over the past several years, the Affidavit completely omits any pre-litigation attempts to contact and resolve potential disputes with the
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 5

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numerous companies he sued prior to filing suit. Plaintiff Frame, therefore, does not add any new relevant evidence to the Court’s consideration of this matter.3
Finally, the pleading standard invoked by Plaintiffs’ Motion is that Plaintiffs’ complaint should not be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Plaintiffs’ Motion, p. 3 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). As this Court noted, in the Court’s Order, at p. 3, and as was urged in Defendant’s Reply, at p. 2, Plaintiffs fail to address the recent United States Supreme Court decision in Bell Atlantic Corp. v. Twombly, ____ U.S. ____, 127 S.Ct. 1955 (2007) vis-à-vis pleading requirements in federal court. In Bell Atlantic, the Supreme Court abrogated the very language relied upon and quoted in Plaintiffs’ Motion from the Conley case. In other words, under the Bell Atlantic case, Conley is no longer the law, and Plaintiffs were required to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 127 S.Ct. at 1974. Additionally, “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic, 127 S.Ct. at 1965. As the Court’s Order found, Plaintiffs did not plead a plausible claim of discrimination under the ADA or the Rehabilitation Act beyond the purely speculative level. See Court’s Order, pp. 6-8. Nothing in Plaintiffs’ Motion presents anything more than was presented to the Court previously. Plaintiffs’ Motion merely attempts to rehash the pleadings, legal theories and arguments that were already raised before the entry of Final Judgment. As a result, Plaintiffs’ Motion should be denied.
WHEREFORE, PREMISES CONSIDERED, Defendant City of Arlington, Texas, prays that Plaintiffs’ Motion to Alter and/or Amend the Judgment of Dismissal and Memorandum of
3 While Plaintiffs’ Motion asserts, at p. 6, that Plaintiff Frame’s actions “are largely selfless,” such an argument leaves open the observation that Plaintiff Frame’s efforts are not totally selfless, by implication. In any event, the Affidavit of Richard Frame forms no basis upon which this Court should reverse the Final Judgment in this case. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 6

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Law in Support Thereof be denied, and Defendant prays for such other and further relief to which it may be justly entitled.
Respectfully submitted,
By: /s/ Edwin P. Voss, Jr. Kent S. Hofmeister State Bar No. 09791700 Edwin P. Voss, Jr. State Bar No. 20620300
BROWN & HOFMEISTER, L.L.P. 740 East Campbell Road, Suite 800 Richardson, Texas 75081 214-747-6100 (Telephone) 214-747-6111 (Telecopier) Denise V. Wilkerson Assistant City Attorney State Bar No. 20534100
CITY OF ARLINGTON P.O. Box 90231 Arlington, Texas 76004-3231 817-459-6878 (Telephone) 817-459-6897 (Telecopier)
ATTORNEYS FOR DEFENDANT
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 7

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of this document was served by certified mail, return receipt requested, upon Mr. John M. Nevins, Moseley Law PC, 3878 Oak Lawn Avenue, Suite 400, Dallas, Texas 75219-4469 (Plaintiffs’ local counsel), and upon Messrs. Miguel M. de la O and Charles D. Ferguson, De la O, Marko, Magolnick & Leyton, 3001 S.W. 3rd Avenue, Miami, Florida 33129, lead counsel for Plaintiffs, on the 29th day of April, 2008, in addition to service provided by the Court’s ECF procedures.
By: /s/ Edwin P. Voss, Jr. Edwin P. Voss, Jr.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT – PAGE 8

 
 Case 4:05-cv-00470-Y Document 111 Filed 05/12/08 Page 1 of 6 PageID 1119

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME,

)

WENDELL DECKER, SCOTT UPDIKE, )

J.N., a minor by his next friend and

)

mother, GABRIELA CASTRO,

)

MARK HAMMAN and JOEY SALAS, )

)

Plaintiffs,

)

)

vs.

)

)

THE CITY OF ARLINGTON,

)

a municipal corporation,

)

)

Defendant.

)

)

Civil Action No. 4:05-CV-0470-Y

PLAINTIFFS’ REPLY TO THE DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO ALTER AND/OR AMEND JUDGMENT Plaintiffs, Richard Frame, Wendell Decker, Scott Updike, J.N., a minor, by his next friend and mother, Gabriela Castro, Mark Hamman, and Joey Salas (collectively, the “Plaintiffs”), file this Reply to the Defendant’s Response to Plaintiffs’ Motion to Alter and/or Amend Judgment (the “Motion”).
A. THE MOTION COMPLIED WITH LOCAL RULE 7.1 & 11.1 In its second footnote, Defendant takes Plaintiffs’ counsel to task for several alleged failures to comply with Local Rules 7.1 and 11.1. Defendant first asserts that counsel violated Local Rule 7.1 because “the motion, brief and appendix are all contained in one document rather than in three separate documents.” Resp. at 2 n.2. Plaintiffs’ counsel does not find support for Defendant’s view in the Local Rules. Local Rule 7.1(b) provides that a “motion must be accompanied by a brief.” The rule does not state that the brief, nor exhibits to the brief, must be in a separately-filed document.

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Case No. 4:05-CV-0470-Y

Defendant next complains that Plaintiffs did not submit a proposed order to the Court. However, Local Rule 7.1(c) provides that a proposed order shall be provided only when the motion is “unopposed.”
Defendant claims the certificate of service used by Plaintiffs is incorrect. Plaintiffs’ counsel fails to see the error in the certificate of service that accompanied the Motion. Plaintiffs’ certificate of service is identical to the certificate of service used by the Defendant, except that Defendant’s contains the words “in addition to service provided by the Court’s ECF procedures.” However, the local rules do not appear to require that a certificate of service contain such a phrase.
Lastly, Defendant complains that “the signatures appearing in the signature block and certificate of service are in improper form.” Again, the violation alleged is unclear. Local Rule 11.1 sets out the rule regarding electronic signatures. That rule provides that the ECF user under whose login and password the document is submitted can sign the document either by placing a “s/” in the space where the signature would otherwise appear, or attaching a “graphical signature block of the ECF user in the space where the signature would otherwise appear.” Undersigned counsel used the latter method in signing the Motion.
Defendant’s counsel is correct that Plaintiffs failed to provide this Court with a paper copy of the Motion. Counsel apologies for the oversight, and is rectifying it by providing a paper copy of the Motion and this Reply.
B. THE MOTION ARGUES THAT THIS COURT’S ORDER CONTAINS A MANIFEST ERROR OF LAW
Turning to the merits of the Motion, Defendant argues that the Motion fails to refer the Court to any authority to support Plaintiffs’ argument that the date on which the City of Arlington created the barrier “is not when a cause of action accrues.” Resp. at 3.

TELEPHONE 305/285-2000

de la O ƒ Marko ƒ Magolnick ƒ Leyton
3001 S.W. 3RD AVENUE, MIAMI, FLORIDA 33129

FACSIMILE 305/285-5555

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The authority for this argument is the Court’s Order. The Order correctly states that “a cause of action accrues when ‘the Plaintiff knows or has reason to know of the injury . . . and who has inflicted the injury.’” Order at 6-7.
The Court’s Order pivoted from the correct view of the law regarding when a cause of action accrues, to a requirement that the construction occur within two years of the filing of the complaint. But, as this Court held, the cause of action does not accrue when a City improperly builds a sidewalk and/or curb ramp; rather, the cause of action accrues when “the Plaintiff knows or has reason to know of the injury.” Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983).
Defendant’s argument regarding Deck v. City of Toledo, 56 F. Supp. 2d 886 (N.D. Ohio 1999), is merely a recitation that this Court’s ruling was correct. Defendant makes no attempt to rebut Plaintiffs’ arguments with regards to Deck. In particular, Defendant ignores the judge’s response in Deck to plaintiffs’ concerns about having to be ever vigilant for new construction by the City so complaints about improper construction would not be time barred. The court noted that the “limitations period is measured beginning only from the time when the plaintiff knew or should have known of the injury.” Deck, at 892. Defendant also ignores the lengthy discussion in Deck about the continuing violation theory, and policy of discriminatory action, and their effect on the statute of limitations.
Moreover, Defendant makes no attempt to explain why the City of Arlington should remain inaccessible to veterans disabled during the Iraq War, to new residents of the City of Arlington, and even to disabled persons as yet unborn, or even not yet disabled. Defendant never addresses the fundamental unfairness of applying the

TELEPHONE 305/285-2000

de la O ƒ Marko ƒ Magolnick ƒ Leyton
3001 S.W. 3RD AVENUE, MIAMI, FLORIDA 33129

FACSIMILE 305/285-5555

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statute of limitations as a “gotcha” against disabled persons who did not sit on their rights as the limitations period expired.
Rather than discuss Deck, Defendant chooses instead to raise an inconsequential argument about the proper pleading standard. Defendant claims that Plaintiffs’ reliance on Conley v. Gibson, 355 U.S. 41 (1957), is misplaced because Conley was “abrogated” by Bell Atlantic Corp. v. Twombley, ____ U.S. ____, 127 S. Ct. 1955 (2007). First, Bell Atlantic did no such thing. The Supreme Court’s discussion about the pleading requirements to comply with Rule 8(a) relies extensively on Conley. There is no discussion in Bell Atlantic about abrogating Conley. And no reason to do so; the two opinions are complementary. Second, Plaintiffs’ Motion does not depend on the pleading standard applied by the Court.
Contrary to Defendant’s claim, Plaintiffs’ Motion is hardly an attempt to “rehash the pleadings, legal theories and arguments that were already raised before the entry of final judgment.” Rather, the Motion relies on one critical error in the Court’s Order. The Court correctly defined when a cause of action accrues (i.e., when the Plaintiff knows or has reason to know of the injury); nevertheless, it dismissed Plaintiffs’ complaint because the dates of construction were more than two years prior to the filing of the complaint, with no reference to when the Plaintiff “knew or had reason to know” of the injury. This argument neither rehashes the motion to dismiss nor relies on any pleading standards.
C. THE AFFIDAVIT OF RICHARD FRAME WAS NOT INTENDED TO ADDRESS THE LIMITATIONS PERIOD RULING
Defendant addresses the affidavit of Richard Frame by noting that the affidavit “completely omits any pre-litigation attempts to contact and resolve potential disputes with the numerous companies he sued prior to filing suit.” Defendant’s observation is both correct and irrelevant. First, this Court’s footnote 1 made no reference to whether

TELEPHONE 305/285-2000

de la O ƒ Marko ƒ Magolnick ƒ Leyton
3001 S.W. 3RD AVENUE, MIAMI, FLORIDA 33129

FACSIMILE 305/285-5555

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Mr. Frame had made any pre-litigation attempts to resolve his complaints. If it had, Mr. Frame’s affidavit would have detailed those efforts. Second, there is no such requirement. Skaff v. Meridien North America Beverly Hills, LLC , 506 F.3d 832, 845 (9th Cir. 2007) (“ADA plaintiffs are not required to provide pre-suit notice to defendants”); Association of Disabled Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1360 (11th Cir. 2006) (“We stress that pre-suit notice is not required to commence suit under the ADA.”).

TELEPHONE 305/285-2000

Respectfully submitted,
DE LA O, MARKO, MAGOLNICK & LEYTON Attorneys for Plaintiffs 3001 S.W. 3rd Avenue Miami, Florida 33129 Telephone: (305) 285-2000 Facsimile: (305) 285-5555

By:__s/_Miguel M. de la O__________ Miguel M. de la O Florida Bar No. 0822700 delao@dmmllaw.com Charles D. Ferguson Florida Bar No. 0741531 ferguson@dmmllaw.com
LEAD COUNSEL
MOSELEY · MARTENS, LLP John L. Freeman, Esq. State Bar No. 07425500 John Mitchell Nevins, Esq. State Bar No. 14935800 4949 Hedgcoxe Road, Suite 270 Plano, Texas 75024-3928 Telephone: (214) 525-3905 Facsimile: (214) 387-9434
LOCAL COUNSEL

de la O ƒ Marko ƒ Magolnick ƒ Leyton
3001 S.W. 3RD AVENUE, MIAMI, FLORIDA 33129

FACSIMILE 305/285-5555

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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of May, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document was served this day on all counsel of record and pro se parties identified on the attached Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized matter for those counsel or parties who are not authorized to receive Notices of Electronic Filing.
Edwin P. Voss of Brown & Hofmeister, LLP, Counsel for Defendant, 740 East Campbell Road, Suite 800, Richardson, Texas 75081
Denise V. Wilkerson, Assistant City Attorney, City of Arlington, P.O. Box 90231, Arlington, Texas 76004-3231

s/_Miguel M. de la O Miguel M. de la O

TELEPHONE 305/285-2000

de la O ƒ Marko ƒ Magolnick ƒ Leyton
3001 S.W. 3RD AVENUE, MIAMI, FLORIDA 33129

FACSIMILE 305/285-5555

 
 Case 4:05-cv-00470-Y Document 112 Filed 05/20/08 Page 1 of 1 PageID 1125

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, ET AL. VS. THE CITY OF ARLINGTON

§ § § ACTION NO. 4:05-CV-470-Y § §

ORDER DENYING MOTION TO ALTER OR AMEND THE JUDGMENT

Pending before the Court is Plaintiffs’ Motion to Alter and/or Amend the Judgment of

Dismissal [doc. # 109], filed April 14, 2008. See FED. R. CIV. P. 59(e). After considering the

motion, the response, and the reply, the Court DENIES the motion.

Reconsideration under Rule 59(e) is appropriate only where (1) it can be clearly established

that this Court committed either a manifest error of law or fact; (2) the Court is presented with newly

discovered evidence; or (3) there has been an intervening change in controlling law. See Schiller

v. Physicians Res. Group, Inc., 342 F.3d 563, 567-68 (5th Cir. 2003). Relief under Rule 59(e) is an

extraordinary remedy that should be used sparingly. Templet v. HydroChem, Inc., 367 F.3d 473, 479

(5th Cir. 2004). Although Plaintiffs narrow their challenge to allege that this Court committed a

manifest error of law, Plaintiffs have failed to persuade in light of Defendant’s response arguments.

SIGNED May 20, 2008.

____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

 
 Case: 08-10630 Document: 00511211716 Page: 1 Date Filed: 08/23/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

August 23, 2010

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 JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The petition for rehearing is GRANTED. We withdraw our prior opinion,
Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009), and substitute the following, which reflects substantial changes from the earlier opinion.1
1 This footnote gives the reader a glimpse of the differences between this opinion on rehearing and our first opinion. The district court initially dismissed the plaintiffs’ complaint on statute of limitations grounds. On appeal, we vacated in part and remanded. We agreed that the plaintiffs’ claims accrued upon completion or alteration of the noncompliant sidewalk, curb, or parking lot, but found that the City had the burden to prove expiration of the two-year limitations period. In so deciding, we accepted the plaintiffs’ argument that violations of the regulations were actionable because sidewalks, curbs, and parking lots were “services” provided by the City. Judge Prado dissented, arguing that the statute of limitations was triggered by the plaintiffs' encounters with, not the City’s completion of, noncompliant sidewalks, curbs, or parking lots. On petition for rehearing, the City argues we erred in

Case: 08-10630 Document: 00511211716 Page: 2 Date Filed: 08/23/2010
No. 08-10630
OPINION ON REHEARING The plaintiffs are persons with disabilities who depend on motorized wheelchairs for mobility. They allege that the City of Arlington, by failing to make the City’s curbs, sidewalks, and certain parking lots ADA-compliant, has violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court dismissed their complaint on the basis that their claims were barred by the applicable two-year statute of limitations. This appeal raises more than one issue of first impression—at least for this court. Initially, we must decide whether Title II of the ADA authorizes the plaintiffs’ claims. To the extent we find Title II authorizes the plaintiffs’ claims, we must also consider whether those claims are subject to a statute of limitations and, if so, when the claims accrued. We hold that Title II mandates the modification of physical infrastructures that “effectively deny” access to a public entity’s services, programs, or activities. Within this framework, sidewalks, curbs, and parking lots are “facilities,” not “services, programs, or activities.” Consequently, plaintiffs only have a private right of action to enforce compliance with the implementing regulations to the extent that the failure to make a sidewalk, curb, or parking lot compliant denies plaintiffs access to actual services, programs, or activities. Where the plaintiffs establish a private cause of action, we further hold that the plaintiffs’ claims are
concluding that sidewalks, curbs, and parking lots constitute “services” within the meaning of Title II. The plaintiffs argue that we erred in concluding that the statute of limitations is triggered by completion of a noncompliant sidewalk, curb, or parking lot. The plaintiffs contend that the statute of limitations is triggered by a handicapped person’s most recent encounter with that sidewalk, curb, or parking lot. On rehearing, we hold that sidewalks, curbs, and parking lots are not Title II services, programs, or activities; thus, the plaintiffs lack a private right of action to enforce the regulations unless noncompliance has denied access to a service, program, or activity. Where a cause of action is established, the statute of limitations is triggered when the plaintiff knew or should have known that he or she was excluded from a city service, program, or activity.
2

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No. 08-10630
subject to a two-year statute of limitations, and that the claims accrued when the plaintiffs were excluded from the desired program, service, or activity. We further conclude, however, that it was the City’s burden to prove accrual and expiration of any limitations period. Because the district court erred in requiring the plaintiffs to prove that their claims had not expired, we remand for further proceedings.
I. This appeal comes to us from the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We therefore accept the factual allegations of the plaintiffs’ complaint as true. See, e.g., Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). The plaintiffs filed their complaint in the district court on July 22, 2005, and amended it three times. Accordingly, for facts we refer to the plaintiffs’ final amended complaint. The plaintiffs are individuals who reside in Arlington who have mobility impairments that require that they use motorized wheelchairs. They point to more than one hundred curbs and poorly maintained sidewalks in Arlington that they allege make their travel impossible or unsafe. They also point to at least three public facilities lacking adequate handicap parking. Count 1 of the plaintiffs’ complaint alleges violations of Title II of the ADA. See Title II of the ADA, 42 U.S.C. §§ 12131 et seq. (prohibiting public entities from discriminating on the basis of disability).2 Count 2 of the plaintiffs’ complaint alleges violations
2 Count 1 also alleges that the City has violated 28 C.F.R. § 35.150 by failing to implement a plan to transition its curbs, sidewalks, and parking lots to ADA compliance. 28 C.F.R. § 35.150 is a regulation promulgated by the Attorney General that requires public entities to develop transition plans to achieve compliance with Title II. See ADA Accessibility Guidelines, 28 C.F.R. § 35.150(d)(1) (requiring public entities to draft transition plans). Citing Alexander v. Sandoval, 532 U.S. 275 (2001), the district court dismissed the plaintiffs’ claims under 28 C.F.R. § 35.150 because it concluded the plaintiffs had no private cause of action to enforce that regulation. See 532 U.S. at 291 (implementing regulation, on its own, cannot create private right of action); see also Iverson v. City of Sandusky, 452 F.3d 94, 99-100 (1st Cir. 2006) (no private right of action to enforce 28 C.F.R. § 35.150); Ability Ctr. of Greater
3

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No. 08-10630 of Section 504 of the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of disability. See Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The plaintiffs do not seek monetary damages; they only ask for an injunction requiring the City to bring its curbs, sidewalks, and parking lots into ADA compliance.
The City of Arlington moved to dismiss the complaint, and the district court granted the City’s motion on the ground that the plaintiffs’ claims were barred by the applicable two-year statute of limitations. The district court held that the plaintiffs’ claims accrued, and the two-year limitations period began to run, on the date the City completed the construction or alteration of any noncompliant curb, sidewalk, or parking lot. Because the plaintiffs’ complaint did not point to dates of noncompliant construction or alteration within the two years preceding its filing date, July 22, 2005, the district court dismissed the plaintiffs’ claims.
On appeal, the plaintiffs argue that their claims accrued on the date individual plaintiffs actually encountered a noncompliant barrier—not on the date the City completed a noncompliant construction or alteration. In the alternative, the plaintiffs argue that statutes of limitation do not apply to claims for injunctive relief; that the noncompliant curbs, sidewalks, and parking lots are continuing violations of the ADA that relieve them of the limitations bar; and that dismissal was improper because the City, and not the plaintiffs, had the burden to establish when the plaintiffs’ claims accrued and the limitations period expired.
We consider each of the plaintiffs’ arguments separately. II.
Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004) (same). The plaintiffs do not appeal that ruling.
4

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No. 08-10630 We review a Rule 12(b)(6) dismissal de novo. See, e.g., Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2007). “The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir. 1998)). The interpretation of a statute is a question of law we also review de novo. See, e.g., Motient Corp. v. Dondero, 529 F.3d 532, 535 (5th Cir. 2008).
A. The immediate question is whether the plaintiffs have stated a cognizable claim under Title II of the ADA; that is, whether the plaintiffs have a private right of action, in connection with their statutory right of access, to force a city to maintain its curbs, sidewalks, and parking lots in compliance with the implementing regulations. If they have no claim, then we need not reach the statute of limitations issues. For reasons we explain, we decide that, to the extent noncompliant sidewalks, curbs, or parking lots effectively deny plaintiffs access to a city “service, program, or activity,” plaintiffs have a private right of action to enforce the regulations; to the extent the noncompliant sidewalks, curbs, or parking lots do not effectively deny plaintiffs access to a “service, program, or activity,” plaintiffs do not have a private right of action to enforce the regulations.3 The ADA was passed “[t]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II applies to public entities. It 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
3 In some cases, whether a burden effectively denies access can be determined by an objective standard; in other cases, it will be a question of mixed law and fact, or even pure fact.
5

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No. 08-10630
discrimination by any such entity.” 42 U.S.C. § 12132.4 We have held that to make a prima facie case under Title II a plaintiff must show: (1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004). There is no dispute that the City is a public entity, or that the plaintiffs here have qualifying disabilities.5
Plaintiffs have assembled a range of arguments as to how Arlington’s newly constructed, newly maintained, and pre-ADA6 sidewalks, curbs, and parking lots are in violation of Title II. Some of the violations pointed to by the plaintiffs are alleged to deny access to public services; other violations are not similarly tied to the deprivation of access to public services. In some instances, the alleged violation excludes plaintiffs from public benefits; in other instances, plaintiffs can access the services but only with difficulty.
Given the breadth of the plaintiffs’ attack on Arlington’s sidewalk, curb, and parking lot system, we must identify with some precision the degree to
4 The ADA was modeled after the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of their disability. See 29 U.S.C. § 794 (“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 receiving [f]ederal financial assistance.”). The ADA expressly provides that the remedies, procedures, and rights available under the Rehabilitation Act also apply to the ADA, and thus jurisprudence interpreting either statute is applicable to both. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.), cert. denied, 531 U.S. 959 (2000). Thus, even though the plaintiffs have brought claims under both statutes, for simplicity’s sake we refer only to the ADA claim.
5 A public entity is “any [s]tate or local government” or “any department, agency, special purpose district, or other instrumentality of a [s]tate or [s]tates or local government.” 42 U.S.C. § 12131. A “disability” under the ADA is “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1).
6 For the purpose of clarity, we use the term pre-ADA for sidewalks, curbs, and parking lots that were built prior to the ADA and have not undergone qualifying alterations.
6

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No. 08-10630 which they are entitled to force compliance with the implementing regulations. In so doing, we move in three steps. First, we briefly review our jurisprudence concerning private causes of action to enforce implementing regulations. Second, we analyze the statutory text. Third, because we conclude that the statutory text is in part ambiguous, we turn to the implementing regulations for guidance.
1. “[P]rivate rights of action to enforce federal law” are creatures of congressional intent. Sandoval, 523 U.S. at 286. The Supreme Court has recognized that Title II’s anti-discrimination provision, 42 U.S.C. § 12132, is enforceable through a private right of action. Barnes v. Gorman, 536 U.S. 181, 184-85 (2002). When deciding whether a general private right of action recognized under the statutory language carries over to the specifics of the implementing regulations, we ask whether the regulation “effectuates a mandate” of the statute. Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 906-07 (6th Cir. 2004); see Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (explaining that only if a regulation “simply appl[ies]” the statutory obligations does a right of action to enforce the statute carry over to implementing regulations). Thus, to the extent that the regulations implement a mandate of Title II, plaintiffs would be able to sue to enforce the regulations.
2. Before turning to the statute, we briefly explain the manner in which we interpret a statute administered by an executive agency. If, using the traditional tools of statutory construction, we conclude the statute is clear as to the precise question at issue, “we must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If, however, the statute is ambiguous, we then defer to the agency’s interpretation, if it is reasonable. Id. Where the agency has promulgated regulations addressing the question, we look first to
7

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No. 08-10630 those regulations. If the regulations are “ambigu[ous] with respect to the specific question considered,” Moore v. Hannon Food Serv., 317 F.3d 489, 495 (5th Cir.2003); Christensen v. Harris County, 529 U.S. 576, 588 (2000) (finding Auer deference appropriate “only when the language of the regulation is ambiguous”), we defer to the agency’s interpretation of its own regulation “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997); Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006). Were we automatically to defer to an agency interpretation of an unambiguous regulation, we would in effect “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Christensen, 529 U.S. at 588. With this in mind, we are prepared to undertake an analysis of Title II.
i. Title II provides that no individual with a qualifying disability shall, “by reason of such disability, be excluded from participation in or denied the benefits of” state or city provided “services, programs, or activities.” 42 U.S.C. § 12132. In Tennessee v. Lane, the Supreme Court recognized that this language prohibits not just the discriminatory provision of benefits,7 but also the failure to take reasonable measures to make these benefits accessible to persons with disabilities. 541 U.S. 509, 531-32 (2004) (citing 42 U.S.C. § 12131(2) and explaining that because “[a] failure to accommodate . . . will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility”). Accordingly, we have stated, in the context of access to public education, that Title II of the ADA “mandat[es] physical accessibility and the
7 Intentional discrimination in the provision of otherwise accessible services, programs, or activities, though also clearly prohibited by Title II, is not at issue in this case and need not be considered.
8

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No. 08-10630 removal and amelioration of architectural barriers.” Pace v. Bogalusa City School Bd., 403 F.3d 272, 291 (5th Cir. 2005).
Later cases have made clear that, at least with respect to the Rehabilitation Act, this obligation extends beyond cases of actual exclusion to cases of constructive exclusion—i.e., a plaintiff need not show it is impossible to access the benefits, but only that, considering all of the circumstances, there is an unreasonable level of difficulty in accessing the benefits. 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 “meaningful access” to which they are entitled); see also Brennan v. Stewart, 834 F.2d 1248, 1261 (5th Cir. 1988). Other circuits have applied this “meaningful access” standard to ADA claims. See, e.g., Jones v. City of Monroe, Mich., 341 F.3d 474, 479-80 (6th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001). We specifically reserved judgment on this issue in Melton, 391 F.3d at 672 n.2, but we now conclude that under the ADA, which was intended to be coextensive with the Rehabilitation Act, a plaintiff must show that a benefit is being administered in a way that “effectively denies” individuals with qualifying disabilities “meaningful access” to the benefits for which they are qualified.8
We thus conclude that the statute unambiguously mandates the modification of certain new, altered, and pre-ADA physical infrastructures to the extent they “effectively deny” individuals with disabilities from “meaningful access” to city services, programs, and activities. Melton, 391 F.3d at 672 n.2. Thus, to the extent the plaintiffs claim that noncompliance with the regulations
8 “Effective denial” of a benefit is a less demanding requirement for a plaintiff than “exclusion” from a benefit. “Effective denial,” however, still requires courts to consider all circumstances, including the degree of hardship on the plaintiff and the reasonableness of the modification given its cost and the availability of substitute services.
9

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No. 08-10630
either outright excludes them from or effectively denies them meaningful access to a service, program, or activity, they have a private cause of action to enforce compliance with the regulations.
Many of the plaintiffs’ allegations meet this standard. The plaintiffs allege that certain of the City’s physical infrastructure—sidewalks, curbs, and parking lots—hinder them from accessing the City’s services, programs, or activities—for example, parks, public schools, and polling stations. The district court on remand will be able to determine precisely which of the plaintiffs’ alleged violations are tied to the denial of a service, program, or activity.9
In some instances, however, the plaintiffs seek the correction of a noncompliant sidewalk, curb, or parking lot without correlating the violation with a deprivation of a service, program, or activity. In these cases, the plaintiffs argue that a private right of action nevertheless exists because sidewalks, curbs, and parking lots are themselves services, programs, or activities, access to which they are deprived via noncompliant curb cuts or poorly maintained walks. This claim presents an issue of first impression in this circuit and we turn to it now.
ii. The plaintiffs urge that Congress intended Title II to be broad, and they ask us to recognize sidewalks, curbs, and parking lots, not just in their capacity to give access to other services, programs, or activities, but as services themselves.10 The plaintiffs argue that sidewalks and parking lots are simply
9 In making this determination, there should be no set proximity limitation of the sidewalk to the benefit; the requested modification need only be reasonable in the light of all the circumstances, including its costs and whether required to ensure the plaintiff meaningful access to a service, program, or activity. Such matters are properly within the sound discretion of the district court.
10 Other circuits that have considered the issue have, without thorough analysis, interpreted “services, programs, or activities” broadly and have allowed private claims to force cities to update their systems of pedestrian walkways in compliance with Department of
10

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No. 08-10630
one of the panoply of services provided by the City to its citizens. Thus, they
seem to argue, they have a private cause of action under Title II in any instance,
at any place in the City, to require the City to modify noncompliant sidewalks
or parking lots that are unusable to individuals with disabilities; that is to say,
access to other services, programs, or activities is an irrelevant consideration.
The City disagrees, arguing that sidewalks and parking lots constitute
infrastructure, which may provide access to, but are not themselves, “services,
programs, or activities.” We agree with the City, and for the reasons that follow,
we conclude that sidewalks, curbs, and parking lots are not “services, programs,
or activities” within the meaning of Title II.
Title II provides that no individual with a qualifying disability shall “be
denied the benefits of the services, programs, or activities of a public entity . . .
.” 42 U.S.C. § 12132. “[S]ervices, programs, or activities” is not defined in the
statute. We are certain in our own minds, however, that “services, programs, or
Justice regulations. For example, the Ninth Circuit reasoned that “services, programs, or activities” can be construed as “anything a public entity does.” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (internal quotations omitted). Because a sidewalk can be characterized as “a normal function of a government entity,” public sidewalks fall within the scope of Title II. Id. (quotation marks and citation omitted).
The Sixth Circuit has held that “the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998). On the strength of this interpretation, it has recognized a private right of action to enforce 28 C.F.R. § 35.151, a regulation that establishes accessibility standards for new and altered curbs and sidewalks. Ability Ctr. of Greater Toledo, 385 F.3d at 906-07. Under the Supreme Court’s holding in Sandoval, the Sixth Circuit could only decide in this way by finding that 28 C.F.R. § 35.151 “simply appl[ies]” the obligations of Title II, in other words, by finding that new and altered sidewalks and curbs are a “service, program, or activity.”
The Second and Third Circuits have also read “services, programs, or activities” broadly. The Second Circuit has called the language “a catch-all phrase that prohibits all discrimination by a public entity, regardless of context,” and has counseled against “hair-splitting arguments” over what falls within its reach. Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997). The Third Circuit has similarly held the language "is intended to apply to anything a public entity does.” Yeskey v. Com. of Pa. Dep’t of Corrections, 118 F.3d 168, 171 (3d Cir. 1997) (quotation marks and citation omitted).
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No. 08-10630 activities” is not “anything a public entity does,” as the Ninth Circuit has said in Barden, 292 F.3d at 1076; the statute’s definition for “qualified individual with a disability” indicates as much. A “qualified individual with a disability” is one who “with or without . . . the removal of . . . transportation barriers . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (emphasis added). Thus, we think it is clear that Congress contemplated that some physical infrastructures constitute a different category from the “services” to which they provide access.
Absent a statutory definition or definitive statutory clue, a word “must be given its ordinary, ‘everyday meaning.’” See United States v. Hildenbrand, 527 F.3d 466, 476 (5th Cir. 2008) (quoting Watson v. United States, 552 U.S. 74, 79 (2007)). The definitions for “service”11 include “[t]he duties, work, or business performed or discharged by a public official,” and “the provision, organization, or apparatus for . . . meeting a general demand.” MERRIAM-WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2075 (1993). When, for instance, a public entity provides or maintains a sidewalk, or its accompanying curbs, or public parking lots, it arguably creates an “apparatus for . . . meeting a general demand,” but it does not perform “work . . . by a public official.” Furthermore, the concept of infrastructure is usually inanimate; this suggests that while infrastructure may aid in the provision of other services, it is not considered a service itself.12
In short, the statute’s “qualified individual with a disability” definition suggests a distinction between certain physical infrastructure on the one hand
11 If sidewalks, curbs, and parking lots fall within the statutory language, we believe it must be as a “service,” though the outcome of our analysis would be the same were sidewalks, curbs, and parking lots considered a “program” or “activity.”
12 For example, a bus is a “facility” that provides the service of transportation.
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Case: 08-10630 Document: 00511211716 Page: 13 Date Filed: 08/23/2010
No. 08-10630 and services, programs, and activities on the other. However, as other circuits have indicated, “services” might be broadly understood to include at least some infrastructures, including sidewalks. Thus, whether sidewalks, curbs, and parking lots are properly considered infrastructure or services is unclear; the statutory language does not rule out the possibility that, for example, some structures used for transportation might be considered to constitute a service. Thus, we cannot conclude that the statutory language unambiguously excludes cities’ and states’ physical infrastructure as distinct from the panoply of less tangible benefits cities and states offer to their residents, even though it is often through and by these infrastructures that the services are delivered.
Because of this ambiguity, we defer to the agency interpretation if it represents a reasonable interpretation of the statutory meaning. We begin with the regulations and turn to other sources only if the regulations are ambiguous. Here, the regulations promulgated by the Department of Justice, which appear at 28 C.F.R. Part 35, are organized into a number of parts. Subpart B contains general requirements. Included therein is a regulation setting forth the general prohibition against discrimination; it essentially repeats the language of Title II’s anti-discrimination provision in full, with one minor change.13 28 C.F.R. § 35.130. Subpart D deals with the modification of “facilities” to achieve the statutory requirement of accessibility to programs, services, and activities. Id. at §§ 35.149-159 (“Subpart D. Program Accessibility”). The first provision in Subpart D sets out a general prohibition forbidding the exclusion of individuals with disabilities from “services, programs, or activities” because “a public entity’s facilities are inaccessible to or unusable by individuals with disabilities.” Id. at § 35.149. By definition, facilities are the public entity’s infrastructure—“all or any portion of buildings, structures, sites, complexes, equipment, rolling stock
13 The regulation replaces the language “by reason of such disability” with “on the basis of disability.”
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No. 08-10630 or other conveyances, roads, walks, parking lots, or other real or personal property . . . .” Id. at § 35.104.
Subsequent provisions of the regulation explain what this requirement of program accessibility means with respect to a public entity’s facilities. As to existing facilities, a public entity need not necessarily “make each of its existing facilities accessible.” Id. at § 35.150. Instead, facilities need to be modified only to the extent that the service, program, or activity at issue is not readily accessible when viewed in its entirety. As to new facilities, or facilities altered in a way that could affect the usability of the facility, the new or altered part must be readily accessible and usable by individuals with disabilities. Id. at § 35.151. The regulations go on to mandate the addition of curb ramps at the intersection of newly constructed or altered pedestrian walkways and newly constructed or altered streets, roads, and highways. Id. at § 35.151(e).
A few principles can be drawn from the language and regulatory structure which, when considered together, make clear that sidewalks, curbs, and parking lots are not “services, programs, or activities.” First, under the regulations, sidewalks, curbs, and parking lots are specifically defined as facilities and are clustered with items that clearly do not qualify as “services, programs, or activities,” such as equipment and sites.14 We can safely assume that this was not a mistake. This alone strongly suggests we read sidewalks, curbs, and parking lots as falling outside the statutory “services, programs, or activities.”
Second, unless we consider the regulatory language to be contradictory, facilities cannot merely be a subset of “services, programs, and activities.” 28 C.F.R. § 35.149 prohibits “inaccessible and unusable” “facilities” that exclude
14 In its entirety, the definition reads: "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, including the site where the building, property, structure, or equipment is located.”
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No. 08-10630 individuals with disabilities from “services, programs, or activities.” If some facilities were also “services, programs, or activities,” then the regulations, in at least some cases, would actually forbid “inaccessible and unusable” “services, programs, or activities” that exclude individuals with disabilities from “services, programs, or activities.” We cannot believe that this interpretation is correct. The only sensible reading is that the categories are mutually exclusive and if sidewalks, curbs, and parking lots were intended to be treated as “services, programs, or activities,” they would have been left out of the facilities definition altogether.
Third, the implementation of a unique framework of regulatory requirements for facilities, §§ 35.150-151, belies any attempt to equate facilities with “services, programs, or activities.” If facilities were themselves “services, programs, or activities,” they would be subject to the regulatory language in § 35.14915 mandating some degree of immediate accessibility. This requirement would render superfluous the facilities regulations in § 35.150-151, which envision a phasing-in of compliant facilities with a focus on achieving general accessibility to other programs, services, or activities, rather than immediate compliance with a focus on making facilities themselves accessible.
Given the explicit identification of sidewalks, curbs, and parking lots as facilities; the relationship between facilities and services, programs, and activities in § 35.149; and the creation of regulations unique to facilities in §§ 35.150-151, the regulations clearly indicate to us that sidewalks, curbs, and parking lots are covered by the statute, not as “services,” but in their capacity as gateways to “services, programs, or activities,” i.e., as facilities.
15 It reads: “[N]o qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, 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.” 28 C.F.R. § 35.149.
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No. 08-10630 Accordingly, we hold that in the light of the implementing regulations, sidewalks, curbs, and parking lots are not “services, programs, or activities.” Because the statute mandates modifications only where an individual with a disability cannot access a service, program, or activity, the regulations requiring modifications to sidewalks, curbs, and parking lots in instances where these facilities do not prevent access to some service, program, or activity do not effectuate a statutory mandate. Plaintiffs thus do not have a private cause of action to enforce the regulatory requirements as they relate to these non-accessdenying sidewalks, curbs, and parking lots.
III.16 Now we are prepared to consider the issue addressed by the district court—whether the plaintiffs’ claims are time-barred. First, we address the plaintiffs’ argument that statutes of limitation do not apply to claims seeking only injunctive relief. Second, we identify the proper statute of limitations. Third, we consider when the plaintiffs’ claims accrued. We reject the plaintiffs’ assertion that the statute of limitations does not apply to their claims because they seek only injunctive relief. The plaintiffs cite Voices for Independence v. Pennsylvania Department of Transportation, 2007 WL 2905887 (W.D. Pa.), a district court opinion that held a statute of limitations did not apply in an ADA case seeking only equitable relief. Id. at *16-17. That opinion, in addition to being nonbinding, is also unpersuasive in the light of the fact that courts regularly apply statutes of limitation to claims under Title III
16 Because we hold that there is no private cause of action to challenge sidewalks, curbs, and parking lots unless the noncompliance results in a denial of access to a service, program, or activity, we need not address statute of limitations issues with the claims alleging that sidewalks, curbs, and parking lots are themselves services, programs, or activities. Such claims are not cognizable in a private lawsuit.
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No. 08-10630 of the ADA, for which only injunctive relief is available.17 See, e.g., Gaona v. Town & Country Credit, 324 F.3d 1050, 1054-56 (8th Cir. 2003) (applying Minnesota’s six-year statute of limitations to Title III claim for injunctive relief); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 n.2 (9th Cir. 2002) (holding ongoing violation brought Title III claim for injunctive relief within California’s one-year limitations period); Sexton v. Otis Coll. of Art & Design Bd. of Directors, 129 F.3d 127, 127 (9th Cir. 1997) (applying California’s one-year statute of limitations to Title III claim for injunctive relief); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547 (7th Cir. 1996), cert. denied, 519 U.S. 1093 (1997) (applying Illinois’s two-year statute of limitations to Title III claim for injunctive relief). This court has recently held that statutes of limitations apply to § 1983 actions that seek only injunctive relief. See Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008). We decline to treat the plaintiffs’ Title II claims differently.
Now, with respect to the application of the correct limitations period, we begin by noting that neither Title II of the ADA nor the Rehabilitation Act provides a limitations period, and the general federal statute of limitations does not apply to either statute.18 We have previously held, however, that the Texas two-year statute of limitations for personal injury claims applies in Title II cases filed in Texas federal courts. Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84
17 Remedies available under Title III of the ADA are the same as those under Title II of the Civil Rights Acts of 1964, 42 U.S.C. § 2000, for which there is only injunctive relief. 42 U.S.C. § 12188(a); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (Title II of the Civil Rights Acts of 1964 provides injunctive relief only).
18 Title II adopts the remedies, procedures, and rights of the Rehabilitation Act. 42 U.S.C. § 12133. The limitations period in Rehabilitation Act cases is governed by 42 U.S.C. § 1988(a). That statute directs courts to apply federal law if it provides a limitations period or, if it does not, apply common law, as modified by state law, if it is not inconsistent with the Constitution or laws of the United States. See, e.g., Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998) (citing Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir. 1992)). For Title II claims courts borrow the state statute of limitations from the most analogous state law claim.
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No. 08-10630 (5th Cir. 1998); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2007). The district court thus applied the correct two-year statute of limitations.
The Supreme Court has been clear that a claim accrues when the plaintiff knew or should have known that the discriminatory act occurred. See Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (“the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful” (citing Del. St. Coll. v. Ricks, 449 U.S. 250, 258 (1980)). Here, the discriminatory act is the denial of access to the service, program, or activity. A plaintiff thus has two years, from the time she knew or should have known that she was denied access to a service, program, or activity, to challenge the architectural barriers causing the exclusion. This is a fact question that must be determined by the fact-finder.
Because the plaintiffs failed to plead that their injuries occurred within two years of the filing of their complaint, the district court dismissed their action. However, as always, the defendant has the burden of establishing affirmative defenses, including a statute of limitations, and so it is the City’s obligation to demonstrate expiration of the limitations period. FED. R. CIV. P. 8 (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including . . . statute of limitations[.]”); see also In re Hinsley, 201 F.3d 638, 644-45 (5th Cir. 2000) (Under Texas law, “[a] party asserting limitations must establish the applicability of the limitations statute, but must, as well, prove when the opponent's cause of action accrued[.]”(quoting Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App. 1984, writ refused n.r.e.)). In this respect the district court erred.
In summary: Plaintiffs’ claims are subject to a two-year statute of limitations; plaintiffs’ claims accrue when they knew or should have known that they are denied access to a service, program, or activity; and the burden is on the
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defendant to prove its affirmative defense that the statute of limitations has expired.
IV. We recap the holdings of this opinion: Title II mandates that cities take reasonable steps to modify infrastructure that “effectively denies” individuals with disabilities access to programs, services, and activities. We hold that curbs, sidewalks, and parking lots do not constitute a service, program, or activity within the meaning of Title II of the ADA. Accordingly, plaintiffs have established cognizable claims under Title II only to the extent they 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. As to their claims that meet this standard, the district court correctly held the plaintiffs’ claims were subject to a two-year statute of limitations. These claims accrued on the date the plaintiffs knew or should have known they were denied access to a program, service, or activity on account of the noncompliant facility. However, the district court improperly burdened the plaintiffs with proving accrual within the two years preceding the filing of their complaint. We therefore VACATE the district court’s judgment of dismissal and REMAND for such further proceedings not inconsistent with this opinion.
VACATED and REMANDED.
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No. 08-10630 PRADO, Circuit Judge, concurring in part and dissenting in part:
Although my colleagues granted rehearing and now hold that the statute of limitations applicable to the plaintiffs’ claims here begins to run when the individual plaintiff was denied a service, program, or activity,1 the majority has performed an about-face, and now also holds that sidewalks, curbs, and parking lots2 are not services under the ADA. While I agree that we must remand this case, I cannot agree with the majority’s novel approach to coverage under the ADA, and once again I must dissent.3 I believe that characterizing sidewalks as “facilities,” and thereby limiting private causes of action under the ADA, is not supported by the statute, regulations, or caselaw. I fear that the majority departs dramatically from congressional intent and creates a distinction that is unworkable and ultimately meaningless.
I. The majority asks whether sidewalks “are services themselves.” Maj. Op. at 10. This is not the correct inquiry. The question is not whether the physical structures that compose the sidewalks are a service; rather, it is whether a city provides a service through the construction, maintenance, or alteration of those sidewalks. The answer, of course, is yes. See Barden v. City of Sacramento, 292 F.3d 1073, 1074, 1076 (9th Cir. 2002) (“We must decide whether public sidewalks . . . are a service, program, or activity . . . within the meaning of [the ADA]. We hold that they are . . . . [because] maintaining public sidewalks is a normal function of a city . . . .”). A public entity that constructs a sidewalk
1 For simplicity, I refer to “services, programs, and activities” simply as “services.” 2 Similarly, for simplicity, I refer to “sidewalks, curbs, and parking lots” as “sidewalks.” 3 Because the majority now recognizes that “[a] plaintiff . . . has two years, from the time she knew or should have known that she was denied access to a service, program or activity, to challenge the architectural barriers causing the exclusion,” I concur in Part III of the majority’s opinion. Maj. Op. at 18.
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No. 08-10630 performs a public service. Asking whether sidewalks themselves are a service engages in the type of “hair-splitting” cautioned against by our sister circuits. See Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44–45 (2d Cir. 1997) (holding that the zoning decisions of a public entity are covered by the ADA “because making such decisions is a normal function of a government entity”). The majority’s approach does not comport with the plain, unambiguous text of the ADA; thus we need not look to the regulations or congressional intent. Even if we do, however, the majority’s approach is not supported by the promulgated regulations and does not satisfy the intent of Congress.
A. Title II 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.” 42 U.S.C. § 12132. In our original opinion, we reasoned: Among the definitions for “service” is “a facility supplying some public demand.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1137 (11th ed. 2003). When, for instance, a public entity provides a sidewalk, or its accompanying curbs, or public parking lots, it provides “a facility supplying some public demand.” Because providing curbs, sidewalks, and parking lots is a service within the ordinary, “everyday meaning” of that word, we hold that those facilities also constitute a “service” within the meaning of Title II. Frame v. City of Arlington, 575 F.3d 432, 437 (5th Cir. 2009). I continue to agree with this reasoning. The majority’s new opinion, however, adopts a new definition to arrive at a very different result: The definitions for “service” include “[t]he duties, work, or business performed or discharged by a public official,” and “the provision,
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organization, or apparatus for . . . meeting a general demand.” MERRIAM-WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2075
(1993). When, for instance, a public entity provides or maintains a sidewalk, or its accompanying curbs, or public parking lots, it
arguably creates an “apparatus for . . . meeting a general demand,” but it does not perform “work . . . by a public official.”
Maj. Op. at 12. I do not think that two definitions from dueling Merriam-
Webster’s dictionaries justify changing our approach to this case. Indeed, either
definition encompasses a broad reading of services. When a public entity constructs, maintains, or alters a sidewalk, it performs the “work” traditionally
undertaken by a municipality, and thereby provides a public service. In a show of impressive solidarity, our sister circuits have consistently
held that coverage under “services, programs, and activities” is unambiguous and should be broadly construed.4 The majority’s opinion dismisses the work
of our sister circuits in a footnote, disregarding their interpretation of the ADA and asserting that they considered the issue “without thorough analysis.” Maj.
Op. at 10 n.10. On the contrary, I believe that the Ninth Circuit, in Barden,
4 Barden, 292 F.3d at 1076 (“Rather than determining whether each function of a city can be characterized as a service, program, or activity for purposes of Title II, however, we have construed the ADA’s broad language [as] bring[ing] within its scope anything a public entity does.”) (quotations and citations omitted); Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998) (“[W]e must acknowledge that our conclusion—that the discrimination forbidden by § 12132 must be with regard to services, programs, or activities—is for the most part a distinction without a difference. This is because we find that the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.”); Yeskey v. Comm. of Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997) (“The statutory definition of ‘[p]rogram or activity’ in Section 504 indicates that the terms were intended to be allencompassing. They include ‘all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government . . . any part of which is extended Federal financial assistance.”) (quoting 29 U.S.C. § 794(b)) (emphasis added); Innovative Health Sys., 117 F.3d at 44 (“The ADA does not explicitly define ‘services, programs, or activities.’ Section 508 of the Rehabilitation Act, however, defines ‘program or activity’ as ‘all of the operations’ of specific entities . . . .’”) (quoting 29 U.S.C. § 794(b)(1)(A)), superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001).
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No. 08-10630 thoroughly considered the text of the statute, regulations, and legislative history of the ADA provisions at issue here.
The Ninth Circuit answered the same question presented in this case,5 and held that “maintaining public sidewalks is a normal function of a city and without a doubt something that the [city] does. Maintaining their accessibility for individuals with disabilities therefore falls within the scope of Title II.” Id. at 1076 (emphasis added) (citation and internal quotations omitted). Contrary to the approach taken by the majority opinion, the Ninth Circuit focused its inquiry “not . . . on whether a particular public function can technically be characterized as a service, program, or activity, but whether it is ‘a normal function of a governmental entity.’” Id. (quoting Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 731 (9th Cir. 1999)). We relied on Barden in the previous opinion, see Frame, 575 F.3d at 436–37, and I am convinced that this reliance was well-placed.
The majority states that it “cannot conclude that the statutory language unambiguously excludes cities’ and states’ physical infrastructure as distinct from the panoply of less tangible benefits cities and state offer to their residents.” Maj. Op. at 13. However, I interpret the language of the statute as providing broad coverage, encompassing both the intangible services offered by public entities and the act of offering tangible goods. A statute is not ambiguous simply because it offers expansive coverage.
B. The statute is unambiguous. Thus, we need not turn to the Department of Justice’s regulations. Assuming that we should, however, a plain-reading of
5 “We must decide whether public sidewalks in the City of Sacramento are a service, program, or activity of the City within the meaning of Title II of the [ADA] or [the Rehabilitation Act].” Barden, 290 F.3d at 1074.
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No. 08-10630 the regulations demonstrates that providing sidewalks is a public service. In the preamble to its regulations, the Department of Justice explains:
The scope of title II’s coverage of public entities is comparable to the coverage of Federal Executive agencies under the 1978 amendment to section 504, which extended section 504’s application to all programs and activities ‘conducted by’ Federal Executive agencies, in that title II applies to anything a public entity does. 28 C.F.R. pt. 35, app. A at 456 (1996) (emphasis added). The majority’s opinion looks to Subpart D of the regulations to define “facilities.” Maj. Op. at 13 (citing 28 C.F.R. § 35.1149–59). The opinion then reasons that because physical structures such as sidewalks are defined as facilities and “clustered with items that clearly do not qualify as ‘services, programs, or activities,’” they cannot be considered services. Maj. Op. at 14. The majority concludes that because only the regulations which apply to services are actionable, a private cause of action exists only for the sidewalks which facilitate a service. Although the regulations may set apart facilities from services, nothing in the regulations suggests that when a public entity provides those facilities, it does not provide a service. Indeed, when a municipality constructs a new facility, or alters an existing one, it must comply with the ADA. See 28 C.F.R. § 35.151(a) & (b). Curb ramps and sidewalks are specifically mentioned in 28 C.F.R. § 35.151(e)(2), which requires that “[n]ewly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.” When a public entity is charged with providing new or altered facilities in compliance with the ADA, the regulations do not require that those facilities relate to a covered service.
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Similarly, there is no limitation that a sidewalk must take the traveler to a “service.”6
Again, I think that the majority opinion’s approach asks the wrong question. It is not the sidewalks themselves that we should concern ourselves with; it is the construction, modification, or alteration of sidewalks that is the “service.” The failure of the public entity to construct, alter, or maintain sidewalks in compliance with the ADA is actionable within the scope of the regulations.
C. Although I do not believe it is necessary to look to the legislative history, Congressional adoption materials support a broad reading of the ADA. In the accompanying House Report, Congress stated that Title II “simply extends the anti-discrimination prohibition embodied in section 504 [of the Rehabilitation Act] to all actions of state and local governments.” H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (emphasis added); see also id. at 151, reprinted in 1990 U.S.C.C.A.N. 303, 434 (“Title II . . . makes all activities of State and local governments subject to the types of prohibitions against discrimination . . . included in section 504 . . . .”) (emphasis added). When a public entity acts, its actions necessarily fall within the coverage of the ADA and section 504 of the Rehabilitation Act. “[T]he elimination of architectural barriers was one of the central aims of the Rehabilitation Act.” Alexander v. Choate, 469 U.S. 287, 297 (1985) (citing
6 Although it is merely illustrative of the scope of the regulations and not of a private right of action, under 28 C.F.R. § 35.150(d)(2), public entities are required to develop a transition plan for ADA compliance, including a “schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act . . . followed by walkways serving other areas.” Sidewalks serving public entities are given priority, but the Department of Justice saw fit to include all manner of destinations within the “other areas” catchall. That the regulation has such broad scope seems to run contrary to the majority’s requirement that a sidewalk must lead to a “service.”
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S. Rep. No. 93-318, p.4 (1973), U.S. Code Cong. & Admin. News 1973, pp. 2076, 2080)). And, as this Circuit has elaborated, the purpose of the ADA and section 504 “is the elimination of discrimination against individuals with disabilities . . . [by] [m]andating physical accessibility and the removal and amelioration of architectural barriers.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 291 (5th Cir. 2005) (en banc). It would be contrary to the purpose of the ADA for a public entity to erect non-compliant sidewalks.
There exists further indication that Congress did not intend for courts to draw the type of distinction offered in the majority’s opinion.7 Congress was particularly clear on the subject of curb cuts—a portion of the plaintiffs’ claims here—stating that: “[t]he employment, transportation, and public accommodation sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets.” H. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 367. Therefore, “under this title, local and state governments are required to provide curb cuts on public streets.” Id.
Nowhere in the legislative history do the architects of the ADA suggest that the ADA does not cover a public entity’s actions with regard to its sidewalks. If anything, the clear indications that Congress intended the ADA
7 As explained by one of the ADA’s proponents:
Title II covers the range of services, programs and benefits offered by State and local governments, without a requirement that such programs or activities received Federal financial assistance. Thus, title II extends to whatever spheres of authority a State or local government is involved in—including employment, health and service programs, the streets—which require curb-cuts—and the facilities owned or operated by such governments.
136 CONG. REC. E1913-01, E1916 (daily ed. May 22, 1990) (statement of Rep. Hoyer) (emphasis added). Nothing in the above quote indicates that “the streets” should be treated differently than employment or heath and service programs.
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to encourage (and sometimes mandate) the evenhanded offering of public services, should caution against the majority’s opinion’s distinctions.
II. In addition to the statutory analysis performed in Part I, I am concerned by the broader implications of the majority’s approach; namely, there is no precedent to support the majority’s distinction and the new standard is unworkable.
A. The majority’s opinion offers no caselaw to support its new analysis. Considering the potential implications of the majority’s novel approach, and given the clear intent of Congress described above, this dearth of precedent is troubling.8 Additionally, I am unable to locate a single circuit court case that could support the majority’s opinion even by analogy or extrapolation. Kinney v. Yerusalim, from the Third Circuit, provides some analogous support for a distinction between the treatment of existing facilities and new constructions and alterations. See 9 F.3d 1067, 1072 (3d Cir. 1993) (finding that street resurfacing is an “alteration” under 28 C.F.R. § 35.151(b), and thereby requiring curb cuts under 28 C.F.R. § 35.151(e)). Although the regulations place different burdens on municipalities with regard to existing facilities and new or altered facilities, compare 28 U.S.C. § 35.150(a) & (b), with id. § 35.151(b), even Kinney
8 My research reveals only a single federal case that supports the majority’s new analysis. In New Jersey Protection and Advocacy, Inc. v. Township of Riverside, No. 04-5914, 2006 WL 2226332, at *3 (D.N.J. Aug. 2, 2006), a district court held that sidewalks were not “in and of themselves, programs, services, or activities for the purpose of the ADA’s implementing regulations.” Obviously, an unpublished district court case from another circuit does not control our analysis. Nor does the district court’s opinion alter my belief that we should look to the act of providing, maintaining, and altering the sidewalk as the covered service.
27

Case: 08-10630 Document: 00511211716 Page: 28 Date Filed: 08/23/2010
No. 08-10630
supports a broad reading of covered services and cannot be extended to assist the majority’s approach.9
The majority’s opinion creates a split with the Ninth Circuit and is unsupported by any of our sister circuits. While the absence of caselaw on point or analogous treatment is not dispositive, the Barden opinion and the great weight of caselaw supporting a broad reading of the ADA, supra note 4, forces me to doubt the validity of the majority’s new analysis.
B. The majority’s opinion draws a distinction between tangible facilities and intangible services. This distinction will not work when applied to the numerous mixed tangible/intangible services rendered by public entities. Take, for example, a public park. The park has intangible aspects: entertainment, respite, and fresh air. But it also has tangible aspects: the pathways, drinking fountains, and green spaces. Can we separate the tangible aspects from the intangible? Or are the tangible aspects of a park so interwoven with the intangible that any attempt at separation is futile? When applied to this park hypothetical, I think that the merits of our original treatment of the scope of
9 Kinney considered whether the resurfacing of city streets constituted an “alteration” under the regulations. 9 F.3d at 1069. At no point did the Third Circuit draw a distinction between streets and the service of providing them:
If a street is to be altered to make it more usable for the general public, it must also be made more usable for those with ambulatory disabilities. At the time that the City determines that funds will be expended to alter the street, the City is also required to modify the curbs so that they are no longer a barrier to the usability of the streets by the disabled.
Id. A street is also named as a “facility.” See 8 C.F.R. § 35.104. And, obviously, a street is merely a physical structure akin to the sidewalks at issue here. Yet nowhere in Kinney did the Third Circuit imply that the street must lead an individual to a public service or be used by buses for public transport. It is enough that the public entity has decided to alter the street to bring the alteration within the ambit of ADA compliance.
28

Case: 08-10630 Document: 00511211716 Page: 29 Date Filed: 08/23/2010
No. 08-10630 services are readily apparent. When a public entity decides to build a park (or later alter it), it must do so in a way that provides equal opportunities for access to disabled people.
The majority goes to some lengths to claim that “there should be no proximity limitation of the sidewalk to the benefit.” Maj. Op. at 10 n.9. The majority’s attempt to water-down its own new standard illustrates the difficulty of managing and applying this new standard. In essence, a sidewalk falls outside of the majority’s standard only if it is a sidewalk to nowhere. I question, however, whether any sidewalk goes nowhere.
If the noncompliant sidewalk is immediately outside of a disabled person’s home, that sidewalk will necessarily deny the individual access to any public services. If a disabled individual wants to take a circuitous path to a library and encounters a noncompliant sidewalk, may that disabled person properly bring a claim? Under the “sidewalks to nowhere” standard, must a disabled person use the most direct path to a public service? If a disabled person may avoid a sidewalk lacking a curb cut by taking an easy detour, must she do so? Each of these questions runs counter to the basic ameliorative and equalizing aspects of the ADA. See Pace, 403 F.3d at 291 (“[T]he Congressional objective of both the ADA and § 504 is the elimination of discrimination against individuals with disabilities. . . . Mandating physical accessibility and the removal and amelioration of architectural barriers is an important purpose of each statute.”).
The district court, on remand, will be placed in the unenviable position of attempting to apply this standard. The district court will be forced to wrestle with a standard lacking any clear limitations or answers to the questions I have posited above. The majority reasons away these fundamental issues with its statement that proximity should not be considered. But if proximity is of no
29

Case: 08-10630 Document: 00511211716 Page: 30 Date Filed: 08/23/2010 No. 08-10630
consequence, then what sidewalk could ever fall outside of the reach of the majority’s novel standard?
*** Arlington built sidewalks. Arlington maintains sidewalks. And, when it deems it appropriate, Arlington alters the sidewalks. Each of these acts is a normal function of government. The acts taken by Arlington with regard to its sidewalks fall within the unambiguous meaning of “services, programs, and activities.” I respectfully dissent.
30

 
 Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 1 of 14
ADR,ECF,JURY,MREF,STAYED
U.S. District Court Northern District of Texas (Fort Worth) CIVIL DOCKET FOR CASE #: 4:05−cv−00470−Y

Frame et al v. The City of Arlington Assigned to: Judge Terry R Means Case in other court: USCA5, 08−10630 Cause: 28:1343 Violation of Civil Rights
Plaintiff
Richard Frame

Date Filed: 07/22/2005 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by David Ferleger Law Office of David Ferleger 413 Johnson Street Suite 203 Jenkintown, PA 19046 215/88700123 Fax: 215/567−4037 FAX Email: david@ferleger.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Duke Ferguson de la O, Marko, Magolnick &Leyton PA 3001 SW 3rd Ave Miami, FL 33129 305/285−2000 Email: ferguson@dmmllaw.com TERMINATED: 11/16/2011 Bar Status: Not Admitted
John L Freeman Key Harrington Barnes PC 3710 Rawlins St Suite 950 Dallas, TX 75219 214/615−7923 Fax: 214/615−7926 Email: jfreeman@keyharrington.com TERMINATED: 04/19/2007 Bar Status: Admitted/In Good Standing
John Mitchell Nevins The Nevins Law Firm 7600 San Jacinto Place Suite 200 Plano, TX 75024 469/368−3633 Fax: 469/675−6492 Email: nevins@nevinslawfirm.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Miguel M de la O de la O, Marko, Magolnick &Leyton 3001 SW 3rd Ave Miami, FL 33129 305/285−2000 Email: delao@delao−marko.com TERMINATED: 11/16/2011 Bar Status: Not Admitted

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 2 of 14

Plaintiff Wendell Decker
Plaintiff Scott Updike
Plaintiff JN a Minor

represented by David Ferleger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Duke Ferguson (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted
John L Freeman (See above for address) TERMINATED: 04/19/2007 Bar Status: Admitted/In Good Standing
John Mitchell Nevins (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Miguel M de la O (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted
represented by David Ferleger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Duke Ferguson (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted
John Mitchell Nevins (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Miguel M de la O (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted
represented by David Ferleger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Duke Ferguson (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted
John Mitchell Nevins

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 3 of 14

(See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Miguel M de la O (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted

Plaintiff
Gabriela Castro As Next Friend for a Minor Child on behalf of JN

represented by David Ferleger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Duke Ferguson (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted

John Mitchell Nevins (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Miguel M de la O (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted

Plaintiff Mark Hamman

represented by David Ferleger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Duke Ferguson (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted

John Mitchell Nevins (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Miguel M de la O (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted

Plaintiff Joey Salas

represented by David Ferleger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Duke Ferguson (See above for address) TERMINATED: 11/16/2011

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 4 of 14
Bar Status: Not Admitted
John Mitchell Nevins (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Miguel M de la O (See above for address) TERMINATED: 11/16/2011 Bar Status: Not Admitted

V. Defendant The City of Arlington A Municipal Corporation
Provider ADR Provider

represented by Edwin P Voss , Jr Brown &Hofmeister 740 E Campbell Rd Suite 800 Richardson, TX 75081 214/747−6100 Fax: 214/747−6111 FAX Email: evoss@bhlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Denise V Wilkerson Arlington City Attorney PO Box 90231 MS 63−0300 Arlington, TX 76004−3231 817/459−6878 Fax: 817/459−6897 FAX Email: denise.wilkerson@arlingtontx.gov TERMINATED: 06/19/2012 Bar Status: Admitted/In Good Standing
Kent S Hofmeister Brown &Hofmeister 740 E Campbell Rd Suite 800 Richardson, TX 75081 214/747−6100 Fax: 214/747−6111 FAX Email: khofmeister@bhlaw.net ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Melinda Hoffman Barlow City of Arlington Attorney's Office PO Box 90231 MS 63−0300 Arlington, TX 76004−3231 817/459−6878 Email: melinda.barlow@arlingtontx.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Sidney C Stahl The Offices of Burdin Mediations 4514 Cole Ave Suite 1450

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 5 of 14
Dallas, TX 75205−4181 214/528−1411 Fax: 214/528−2070 Email: sidstahl@airmail.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 07/22/2005 07/22/2005 07/25/2005 07/27/2005 08/11/2005 08/11/2005 08/15/2005
08/15/2005 08/15/2005
08/15/2005 08/16/2005
08/19/2005 08/22/2005 08/22/2005 08/24/2005 09/12/2005

# Docket Text
1 COMPLAINT against The City of Arlington ( Filing fee $250; Receipt number 53387), filed by Richard Frame, Wendell Decker.(csw, ) (Entered: 07/22/2005)
2 Summons Issued as to The City of Arlington. (csw, ) (Entered: 07/22/2005)
3 Order Designating Case for ECF − see order for specifics. (Signed by Judge Terry R Means on 7/25/05) (wrb, ) Additional attachment(s) added on 7/27/2005 (dld, ). (Entered: 07/25/2005)
4 SUMMONS Returned Executed as to The City of Arlington served on 7/22/2005, answer due 8/11/2005. Served personally at City of Arlington Muni Bldg on City Secretary by Legal Asst Judy Moulton (wrb, ) (Entered: 07/28/2005)
5 Rule 12(b)(6) MOTION to Dismiss Pltfs' Claims by The City of Arlington with Brief. (pdm, ) (Entered: 08/12/2005)
6 UNFILED PER 7 ORDER...CERTIFICATE OF INTERESTED PERSONS by The City of Arlington. (pdm, ) Modified on 8/15/2005 (dld, ). (Entered: 08/12/2005)
7 Order Unfiling 6 Cert. Of Interested Persons/Disclosure Statement filed by The City of Arlington, due to the following deficiency: Pleadings must be submitted electronically per 7/25/05 order. (Signed by Judge Terry R Means on 8/15/05) (dld, ) (Entered: 08/15/2005)
8 Order Unfiling 5 MOTION to Dismiss filed by The City of Arlington, due to the following deficiency: Pleadings must be submitted electroncially per 7/25/05 order. (Signed by Judge Terry R Means on 8/15/05) (dld, ) (Entered: 08/15/2005)
9 MOTION for Leave to File Defendant City of Arlington's Rule 12(b)(6) Motion to Dismiss Plaintiff's Claims and Brief by The City of Arlington with Brief. (Attachments: # 1 Defendant City of Arlington's Rule 12(b)(6) Motion to Dismiss Plaintiff's Claims and Brief)(Wilkerson, Denise) (Entered: 08/15/2005)
10 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by The City of Arlington. (Wilkerson, Denise) (Entered: 08/15/2005)
11 CERTIFICATE of Conference re 9 MOTION for Leave to File Defendant City of Arlington's Rule 12(b)(6) Motion to Dismiss Plaintiff's Claims and Brief Amended Certificate of Conference by Denise V Wilkerson on behalf of The City of Arlington (Wilkerson, Denise) (Entered: 08/16/2005)
12 ORDER granting 9 Motion for Leave to File Responsive Pleadings Out of Time; to be electronically filed within 3 days of this order's issuance. (Signed by Judge Terry R Means on 8/19/05) (dld, ) (Entered: 08/19/2005)
13 MOTION to Dismiss by The City of Arlington with Brief in Support. (Wilkerson, Denise) (Entered: 08/22/2005)
14 CERTIFICATE OF SERVICE by The City of Arlington re 13 MOTION to Dismiss (Wilkerson, Denise) (Entered: 08/22/2005)
15 ORDER TO SUBMIT JOINT STATUS REPORT AND PROPOSED DISCOVERY PLAN (Signed by Judge Terry R Means on 08/24/05) (wrb, ) (Entered: 08/24/2005)
16 AMENDED COMPLAINT First Amended Complaint against The City of Arlington, filed by Richard Frame.(Nevins, John) (Entered: 09/12/2005)

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 6 of 14

09/12/2005 09/12/2005 09/15/2005 09/15/2005 09/23/2005 09/23/2005 10/20/2005 11/04/2005 11/04/2005
11/04/2005 11/04/2005 11/14/2005
11/16/2005 11/29/2005
12/05/2005
12/09/2005 12/09/2005 12/12/2005

17 RESPONSE to Motion re 13 MOTION to Dismiss filed by Richard Frame. (Nevins, John) (Entered: 09/12/2005)
18 Vacation Letter as to Denise Wilkerson Vacation for dates December 26−30, 2005. (Wilkerson, Denise) (Entered: 09/12/2005)
19 ORDER finding as moot 13 Motion to Dismiss (Signed by Judge Terry R Means on 09/15/05) (wrb, ) (Entered: 09/15/2005)
20 Application and Order for Admission Pro Hac Vice by Charles Duke Ferguson for Richard Frame and Wendell Decker (Signed by Judge Terry R Means on 09/15/05) (wrb, ) (Entered: 09/19/2005)
21 STIPULATION by The City of Arlington Stipulation Regarding Initial Pleadings by Plaintiffs and Defendant. (Voss, Edwin) (Entered: 09/23/2005)
22 STATUS REPORT Parties' Proposed Discovery Plan and Joint Status Report by Richard Frame. (Nevins, John) (Entered: 09/23/2005)
23 AMENDED DOCUMENT by Richard Frame, Wendell Decker. Second Amended Complaint. (Ferguson, Charles) (Entered: 10/20/2005)
24 ORDER OF REFERRAL FOR MEDIATION IN OCTOBER 2006; parties to agree on mediator nlt Aug 1 2006. (Signed by Judge Terry R Means on 11/4/05) (wrb, ) (Entered: 11/04/2005)
25 INITIAL SCHEDULING ORDER: Discovery due by 9/29/2006. Joinder of Parties due by 2/3/2006. Motions due by 10/30/2006. Parties to participate in a formal settlement conf nlt Mar 31 2006. (Signed by Judge Terry R Means on 11/4/05) (wrb, ) (Entered: 11/04/2005)
26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) by The City of Arlington (Voss, Edwin) (Entered: 11/04/2005)
27 BRIEF IN SUPPORT OF MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) by The City of Arlington with Brief in Support. (Voss, Edwin) Modified on 11/8/2005 (wrb, ). (Entered: 11/04/2005)
28 Unopposed MOTION for Extension of Time to File Response/Reply as to 27 Brief in Support of MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6), 26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) by Richard Frame, Wendell Decker (Ferguson, Charles) (Entered: 11/14/2005)
29 ORDER granting 28 Motion to Extend Time to File Response/Reply. Responses due by 12/5/2005 (Signed by Judge Terry R Means on 11/16/05) (wrb, ) (Entered: 11/16/2005)
30 Second MOTION for Extension of Time to File Response/Reply to Defendant's Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs' Claims by Richard Frame, Wendell Decker (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Second Unopposed Motion for Extension of Time to Respond to Defendant's Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs' Claims)(Ferguson, Charles) (Entered: 11/29/2005)
31 ORDER granting 30 Motion to Extend Time to File Response/Reply. Plaintiffs are granted until 12/9/2005 to respond to Defendant's motion and deft granted until Dec 27 to file its reply. (Signed by Judge Terry R Means on 12/5/05) (wrb, ) (Entered: 12/05/2005)
32 Unopposed MOTION for Extension of Time to File Response/Reply as to 26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) by Richard Frame, Wendell Decker (Ferguson, Charles) (Entered: 12/09/2005)
33 Application and Order for Admission Pro Hac Vice by Miguel M de la O for Richard Frame and Wendell Decker (Signed by Judge Terry R Means on 12/9/05) (wrb, ) (Entered: 12/12/2005)
34 Plaintiff's Amended Unopposed Motion to Their Unoppposed Motion for a One Day Extension of Time to Respond to Defendant's Renewed Rule 12(b)(6) Motion to Dismiss Plaintiffs' Claims by Richard Frame, Wendell Decker (Ferguson,

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 7 of 14

12/14/2005
12/15/2005 12/16/2005
01/06/2006 04/03/2006 05/23/2006 05/23/2006 05/23/2006 05/23/2006 05/23/2006 05/25/2006
05/30/2006 06/02/2006 06/02/2006 06/07/2006 06/07/2006 06/14/2006 06/26/2006

Charles) Modified on 12/20/2005 per email from lc (wrb, ). (Entered: 12/12/2005)
35 ORDER granting 34 Motion to Amend/Correct, finding as moot 32 Motion to Extend Time to File Response/Reply. Pltfs granted until 12/15/2005 to respond to deft's motion and deft is granted until 1/6/2006 to file its reply. (Signed by Judge Terry R Means on 12/14/05) (wrb, ) (Entered: 12/14/2005)
36 RESPONSE to Motion re 26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) filed by Richard Frame, Wendell Decker. (Ferguson, Charles) (Entered: 12/15/2005)
37 RESPONSE to Motion re 27 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6), 26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) filed by Richard Frame, Wendell Decker. (Attachments: # 1)(Ferguson, Charles) (Entered: 12/16/2005)
38 REPLY to Response to Motion re 27 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6), 26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) filed by The City of Arlington. (Voss, Edwin) (Entered: 01/06/2006)
39 SETTLEMENT CONFERENCE REPORT by The City of Arlington. (Voss, Edwin) (Entered: 04/03/2006)
40 MOTION for Protective Order to Stay Discovery by The City of Arlington (Voss, Edwin) (Entered: 05/23/2006)
41 Brief/Memorandum in Support filed by The City of Arlington re 40 MOTION for Protective Order to Stay Discovery (Voss, Edwin) (Entered: 05/23/2006)
42 Appendix in Support filed by The City of Arlington re 41 Brief/Memorandum in Support of Motion, 40 MOTION for Protective Order to Stay Discovery Appendix, Part A (Voss, Edwin) (Entered: 05/23/2006)
43 Appendix in Support filed by The City of Arlington re 41 Brief/Memorandum in Support of Motion, 40 MOTION for Protective Order to Stay Discovery Appendix Part B (Voss, Edwin) (Entered: 05/23/2006)
44 SETTLEMENT CONFERENCE REPORT Defendant's Amended Report by The City of Arlington. (Voss, Edwin) (Entered: 05/23/2006)
45 ORDER EXPEDITING FILING OF RESPONSE AND REPLY...If Plaintiff's desire to file a response to defendant's motion 40 they must do so nlt Friday June 2, 2006. Deft may file its reply nlt Wed June 7, 2006. (Signed by Judge Terry R Means on 5/25/06) (jmb, ) (Entered: 05/26/2006)
46 Vacation Letter as to Edwin Voss, Jr. for dates 6/21 thru 6/26/06 and 8/1 thru 8/7/06. (pdm, ) (Entered: 05/30/2006)
47 RESPONSE filed by Richard Frame, Wendell Decker re 40 MOTION for Protective Order to Stay Discovery (Ferguson, Charles) (Entered: 06/02/2006)
48 OBJECTION (Response) filed by Richard Frame, Wendell Decker re 44 Amended Settlement Conference Report (Ferguson, Charles) (Entered: 06/02/2006)
49 REPLY to Deft's Response filed by The City of Arlington re 40 MOTION for Protective Order to Stay Discovery to Plaintiffs' Response (Voss, Edwin) Modified on 6/7/2006 (pdm, ). (Entered: 06/07/2006)
50 Defendant's Reply to Plaintiffs' Response to the Amended Settlement Conference Report filed by The City of Arlington. (Voss, Edwin) Modified on 6/7/2006 (pdm, ). (Entered: 06/07/2006)
51 ORDER REFERRING MOTION to Magistrate Judge Bleil: 40 Motion for Protective Order filed by The City of Arlington, (Signed by Judge Terry R Means on 6/14/06) (jmb, ) (Entered: 06/14/2006)
52 ORDER denying 40 Motion for Protective Order (Signed by Judge Charles Bleil on 6/26/06) (jmb, ) (Entered: 06/26/2006)

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 8 of 14

07/07/2006 07/28/2006 07/31/2006 08/01/2006 08/17/2006
08/21/2006
08/25/2006 08/25/2006 08/28/2006 08/28/2006 08/28/2006 09/18/2006 09/18/2006 10/03/2006 10/16/2006 10/17/2006

53 Supplemental Document by The City of Arlington as to 27 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6), 26 MOTION to Dismiss Plaintiffs' Claims Pursuant to Rule 12(b)(6) providing supplemental authority. (Attachments: # 1 Exhibit Iverson v Boston opinion)(Voss, Edwin) (Entered: 07/07/2006)
54 Joint Designation of Mediator by The City of Arlington &Pltfs.(Voss, Edwin) Modified on 7/28/2006 (pdm, ). (Entered: 07/28/2006)
55 ORDER finding as moot 26 Motion to Dismiss and Directing Amended Complaint...The court DIRECTS Plaintiffs to file a third amended complaint nlt August 22, 2006 (Signed by Judge Terry R Means on 7/31/06) (jmb, ) (Entered: 07/31/2006)
56 ORDER APPOINTING MEDIATOR...Sidney Stahl appointed as mediator. Copy of this order, order of Nov 4, 2005 and docket sheet to mediator. (Signed by Judge Terry R Means on 8/1/06) (jmb, ) (Entered: 08/01/2006)
57 UNFILED PER 59 ORDER...Out of Time MOTION for Leave to Serve Disclosure of Expert Witnesses by Scott Updike, Richard Frame, Wendell Decker with Brief in Support (Attachments: # 1 Brief in Support of Motion# 2 Text of Proposed Order Granting Plaintiffs' Motion)(Ferguson, Charles) Modified on 8/25/2006 (dld, ). (Entered: 08/17/2006)
58 UNFILED PER 60 ORDER... MOTION for Extension of Time to File Third Amended Complaint by Scott Updike, Richard Frame, Wendell Decker (Attachments: # 1 Text of Proposed Order Granting Plaintiff's Motion for Extension of Time to File)(Ferguson, Charles) Modified on 8/25/2006 (dld, ). (Entered: 08/21/2006)
59 Order Unfiling 57 MOTION for Leave to File Disclosure of Expert Witnesses filed by Richard Frame,, Wendell Decker,, Scott Updike, see order for specifics. (Signed by Judge Terry R Means on 8/25/06) (dld, ) (Entered: 08/25/2006)
60 Order Unfiling 58 MOTION for Extension of Time to File Third Amended Complaint filed by Richard Frame,, Wendell Decker,, Scott Updike, See order for specifics. (Signed by Judge Terry R Means on 8/25/06) (dld, ) (Entered: 08/25/2006)
61 MOTION for Leave to File Disclosure of Expert Witnesses by Scott Updike, Richard Frame, Wendell Decker with Brief in support of Plaintiffs' Out of Time Motion for Leave to File Disclosure of Expert Witnesses. (Ferguson, Charles) (Entered: 08/28/2006)
62 Brief/Memorandum in Support filed by Scott Updike, Richard Frame, Wendell Decker re 61 MOTION for Leave to File Disclosure of Expert Witnesses (Ferguson, Charles) (Entered: 08/28/2006)
63 MOTION for Extension of Time to File Third Amended Complaint by Scott Updike, Richard Frame, Wendell Decker (Ferguson, Charles) (Entered: 08/28/2006)
64 RESPONSE filed by The City of Arlington re 63 MOTION for Extension of Time to File Third Amended Complaint (Voss, Edwin) (Entered: 09/18/2006)
65 Appendix in Support filed by The City of Arlington re 64 Response to Motion (Voss, Edwin) (Entered: 09/18/2006)
66 REPLY filed by Scott Updike, Richard Frame, Wendell Decker re 63 MOTION for Extension of Time to File Third Amended Complaint (Ferguson, Charles) (Entered: 10/03/2006)
67 ORDER GRANTING LEAVE TO SERVE DISCLOSURE OF EXPERT WITNESSES OUT OF TIME... granting 61 Motion for Leave to File. (Signed by Judge Terry R Means on 10/16/06) (jmb, ) Modified on 10/16/2006 (jmb, ). (Entered: 10/16/2006)
68 ORDER denying 63 Motion for Extension of Time to File Third Amended Complaint. Plaintiffs are directed to file their third amended complaint within 3 days of the date of this order. (Signed by Judge Terry R Means on 10/17/06) (jmb,

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 9 of 14

10/18/2006 10/19/2006
10/30/2006 10/30/2006 11/06/2006 11/07/2006 11/13/2006
01/17/2007 02/13/2007 02/15/2007
02/16/2007 02/22/2007 03/20/2007 03/21/2007 04/11/2007 04/12/2007
04/19/2007

) (Entered: 10/17/2006)
69 AMENDED COMPLAINT Third Amended Complaint against The City of Arlington filed by Scott Updike, Richard Frame, Wendell Decker.(Ferguson, Charles) (Entered: 10/18/2006)
70 ORDER FOR TRIAL SETTING CONFERENCE... Pretrial Conference set for 11/30/2006 09:30 AM before Judge Terry R Means. Joint pretrial order due nlt 11/24/06. (Signed by Judge Terry R Means on 10/19/06) (jmb, ) (Entered: 10/19/2006)
71 Second MOTION to Dismiss under Rule 12(b)(6) by The City of Arlington (Voss, Edwin) (Entered: 10/30/2006)
72 Brief/Memorandum in Support filed by The City of Arlington re 71 Second MOTION to Dismiss under Rule 12(b)(6) (Voss, Edwin) (Entered: 10/30/2006)
73 Joint MOTION to Temporarily Abate Case by Plaintiffs and by The City of Arlington with Brief in Support. (Voss, Edwin) (Entered: 11/06/2006)
74 Letter to the Judge regarding mediation filed by ADR Provider. (jmb, ) (Entered: 11/13/2006)
75 ORDER GRANTING JOINT MOTION TO TEMPORARILY STAY CASE....ORDER granting 73 Motion...The case is stayed for 90 days from the date of this order. All deadlines and activity are stayed for 90 days. Pretrial conference scheduled for nov 30 at 9:30 is cancelled. (Signed by Judge Terry R Means on 11/13/06) (jmb, ) (Entered: 11/13/2006)
76 Vacation Letter as to Denise Wilkerson for dates June 25, 2007 through July 6, 2007. (Wilkerson, Denise) (Entered: 01/17/2007)
77 Joint MOTION to Extend Time Temporary Stay by Scott Updike, Richard Frame, Wendell Decker (Attachments: # 1 Text of Proposed Order Joint Motion to Extend Temporary Stay) (Ferguson, Charles) (Entered: 02/13/2007)
78 ORDER granting 77 Joint Motion to Extend Temporary Stay denying 71 Defendant's Motion to Dismiss. The stay is extended for an additional 30 days. Further all deadlines and activity in this case are stayed. Deft will be free to refile its motion to dismiss should the parties fail to reach settlement after the stay has been lifted. (Signed by Judge Terry R Means on 2/15/07) (jmb) (Entered: 02/15/2007)
79 Vacation Letter as to Edwin Voss for dates 3/12−15 and 5/7−9, 2007. (jmb) (Entered: 02/16/2007)
80 Vacation Letter as to Denise Wilkerson for dates June 29, 2007−July 13, 2007. (Wilkerson, Denise) (Entered: 02/22/2007)
81 Joint MOTION to Stay (Second) by The City of Arlington with Brief in Support. (Voss, Edwin) (Entered: 03/20/2007)
82 ORDER granting 81 Joint Motion to Extend Temporary Stay (Signed by Judge Terry R Means on 3/21/07) (jmb) (Entered: 03/21/2007)
83 STATUS REPORT Joint Report on Settlement Negotiations by The City of Arlington. (Voss, Edwin) (Entered: 04/11/2007)
84 ORDER AMENDING INITIAL SCHEDULING ORDER:Discovery due by 1/31/2008.Joinder of Parties due by 5/31/2007. Pretrial/dispositive Motions due by 2/28/2008. Mediation nlt Feb 29, 2008. Formal Settlement conf nlt 9/28/2007. See order for specifics (Signed by Judge Terry R Means on 4/12/07) (jmb) (Entered: 04/12/2007)
85 NOTICE of Change of Address by John Mitchell Nevins, counsel for Richard Frame. New address is: 3878 Oak Lawn Avenue, Suite 400, Dallas, TX 75219−4469 (Nevins, John) (Entered: 04/19/2007)

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 10 of 14

04/30/2007 04/30/2007 05/21/2007 05/25/2007
05/31/2007
06/04/2007 06/11/2007 08/09/2007
08/09/2007 08/15/2007
08/16/2007 09/04/2007 09/19/2007 09/25/2007

86 Third MOTION to Dismiss under Rule 12(b)(6) by The City of Arlington (Voss, Edwin) (Entered: 04/30/2007)
87 Brief/Memorandum in Support filed by The City of Arlington re 86 Third MOTION to Dismiss under Rule 12(b)(6) (Voss, Edwin) (Entered: 04/30/2007)
88 MOTION for Extension of Time to File Response/Reply as to 87 Brief/Memorandum in Support of Motion, 86 Third MOTION to Dismiss under Rule 12(b)(6) by Scott Updike, Richard Frame, Wendell Decker (Attachments: # 1 Text of Proposed Order) (Ferguson, Charles) (Entered: 05/21/2007)
89 ORDER granting 88 Motion to Extend Time to response to Deft's third renewed motion to dismiss; Accordingly, should the court deny plaintiffs' motion for leave to file a fourth amended complaint, plaintiffs shall have 10 days from date the court denies motion to file a response to deft's motion to dismiss. (Signed by Judge Terry R Means on 5/25/07) (dld) (Entered: 05/25/2007)
90 MOTION for Leave to File Fourth Amended Complaint by Scott Updike, Richard Frame, Wendell Decker with Brief in Support. (Attachments: # 1 Exhibit Fourth Amended Complaint). Party JUAN NUNEZ, a minor, by his next friend and mother, GABRIELA CASTRO, MARK HAMMAN and JOEY SALAS added. (Ferguson, Charles) (Entered: 05/31/2007)
91 RESPONSE filed by The City of Arlington re 90 MOTION for Leave to File Fourth Amended Complaint (Voss, Edwin) (Entered: 06/04/2007)
92 REPLY filed by Scott Updike, Richard Frame, Wendell Decker re 90 MOTION for Leave to File Fourth Amended Complaint (Ferguson, Charles) (Entered: 06/11/2007)
93 ORDER granting 90 Motion for Leave to File Fourth Amended Complaint...Plaintiffs may file their fourth amended complaint no later than five government working days from the date of this order. Plaintiffs shall file their response to Dft's motion to dismiss no later than ten days from the date of this order in accordance with this Court's order of May 25, 2007. The regular time for the filing of a reply under the local rules shall apply. (Signed by Judge Terry R Means on 8/9/2007) (csw) (Entered: 08/09/2007)
94 AMENDED COMPLAINT Fourth against The City of Arlington filed by Scott Updike, Richard Frame, Wendell Decker, Gabriela Castro, JN, Mark Hamman, Joey Salas. (Ferguson, Charles) Modified on 8/13/2007 (cxb). (Entered: 08/09/2007)
95 Unopposed MOTION for Extension of Time to File Response/Reply as to 86 Third MOTION to Dismiss under Rule 12(b)(6) by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker (Attachments: # 1 Text of Proposed Order Plaintiffs Motion for Enlargement of Time) (Ferguson, Charles) (Entered: 08/15/2007)
96 ORDER granting 95 Motion to Extend Time to File Response/Reply. Response due by 11:59pm on 9/4/2007 (Signed by Judge Terry R Means on 8/16/07) (jmb) (Entered: 08/16/2007)
97 Brief in Response filed by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker re 86 Third MOTION to Dismiss under Rule 12(b)(6) (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E) (Ferguson, Charles) (Entered: 09/04/2007)
98 REPLY filed by The City of Arlington re 86 Third MOTION to Dismiss under Rule 12(b)(6) to Plaintiffs' Brief in Response to Defendant's Third Renewed Motion to Dismiss (Voss, Edwin) (Entered: 09/19/2007)
99 Unopposed MOTION to Extend Time To Conduct Formal Settlement Meeting by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker (Attachments: # 1 Text of Proposed Order) (Ferguson, Charles) (Entered: 09/25/2007)

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 11 of 14

09/26/2007 11/07/2007 11/13/2007
01/31/2008 02/04/2008 03/31/2008 03/31/2008 04/11/2008 04/14/2008 04/14/2008 04/29/2008 05/12/2008 05/20/2008 06/17/2008
06/18/2008
06/30/2008

100 ORDER granting 99 Motion to Extend Time. Parties shall participate in a formal settlement conference no later than November 27, 2007 (Signed by Judge Terry R Means on 9/26/2007) (csw) (Entered: 09/26/2007)
101 Unopposed MOTION to Extend Time of deadlines to conduct settlement conference and Defendant's expert witness designation by The City of Arlington (Voss, Edwin) (Entered: 11/07/2007)
102 ORDER granting 101 Unopposed MOTION to Extend Time of deadlines to conduct settlement conference and Defendant's expert witness designation. Deadline is extended to 30 days after the Court has ruled on Deft's Motion to dismiss under rule 12(b)(6). (Signed by Judge Terry R Means on 11/13/07) (dld) (Entered: 11/13/2007)
103 Joint MOTION to Extend Time of deadlines in scheduling order by The City of Arlington (Voss, Edwin) (Entered: 01/31/2008)
104 ORDER GRANTING MOTION TO STAY DEADLINES granting 103 Motion to Extend Time. See Order for specifics. (Signed by Judge Terry R Means on 02/04/2008) (krg) (Entered: 02/04/2008)
105 ORDER GRANTING THIRD RENEWED MOTION TO DISMISS granting 86 : See Order for specifics. (Signed by Judge Terry R Means on 03/31/2008) (krg) (Entered: 04/01/2008)
106 FINAL JUDGMENT... all claims in this cause are hereby DISMISSED with prejudice. All costs under 28 USC 1920 are taxed against Plaintiffs. (Signed by Judge Terry R Means on 03/31/2008) (krg) (Entered: 04/01/2008)
107 BILL OF COSTS Supporting Information by The City of Arlington. (Voss, Edwin) (Entered: 04/11/2008)
108 Costs Taxed in amount of $ $306.50 against Plaintiffs (krg) (Entered: 04/14/2008)
109 MOTION to Alter Judgment by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker with Brief/Memorandum in Support. (Attachments: # 1 Exhibit A) (Ferguson, Charles) (Entered: 04/14/2008)
110 RESPONSE in Opposition filed by The City of Arlington re 109 MOTION to Alter Judgment (Voss, Edwin) (Entered: 04/29/2008)
111 Plaintiffs' REPLY to the Defendant's Response to re: 109 MOTION to Alter Judgment filed by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker (Ferguson, Charles) (Entered: 05/12/2008)
112 ORDER denying 109 Motion to Alter or Amend Judgment. (Signed by Judge Terry R Means on 5/20/2008) (csw) (Entered: 05/20/2008)
113 NOTICE OF APPEAL to the Fifth Circuit as to 112 Order on Motion to Alter Judgment by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker. Filing fee $455, receipt number 05390000000002249324 No hearings on Order s, No Trial , T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (de la O, Miguel) Modified on 6/17/2008 (tle). (Entered: 06/17/2008)
114 NOTICE OF APPEAL to the Fifth Circuit as to 105 Order on Motion to Dismiss, 106 Judgment by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker. Filing fee $455, receipt number 05390000000002251782. No hearings held on Orders , No Trial , T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (de la O, Miguel) Modified on 6/18/2008 (tle). (Entered: 06/18/2008)
115 TRANSCRIPT REQUEST by Scott Updike, JN, Gabriela Castro, Mark Hamman, Joey Salas, Richard Frame, Wendell Decker for proceedings held on N/A (de la O, Miguel) (Entered: 06/30/2008)

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 12 of 14

07/07/2008 07/07/2008 07/18/2008 07/23/2008 09/26/2011 10/11/2011
10/11/2011
10/11/2011 10/11/2011 10/12/2011 10/20/2011 10/25/2011 10/26/2011

116 USCA Case Number 08−10631 in USCA5 for 114 Notice of Appeal,, filed by Richard Frame, Gabriela Castro, JN, Mark Hamman, Joey Salas, Scott Updike, Wendell Decker, (tle) (Entered: 07/08/2008)
117 USCA Case Number 08−10630 in USCA5 for 113 Notice of Appeal,, filed by Richard Frame, Gabriela Castro, JN, Mark Hamman, Joey Salas, Scott Updike, Wendell Decker. (tle) (Entered: 07/08/2008)
Record on Appeal Certified to US Court of Appeals, 5th Circuit re 113 Notice of Appeal,, 114 Notice of Appeal,, − USCA5 Number: 08−10630 &08−10631...consisting of 5 volumes of electronic case papers, 2 appendix exhibits #42,43, ROA is ready for shipment or loan (ELECTRONIC RECORD). (tle) (Entered: 07/18/2008)
118 COURT RECORD LOAN FORM re: 08−10630−10631 sent to Miguel de la O, Esq, consisting of 5 volumes of electronic case papers, 2 Appendix Exhibits. (tle) (Entered: 07/24/2008)
119 Application for Admission Pro Hac Vice with Cert. of Good Standing for Attorney David Ferleger (Filing fee $25; Receipt number 0539−4141293) filed by Gabriela Castro, Wendell Decker, Richard Frame, Mark Hamman, JN, Joey Salas, Scott Updike (Ferleger, David) (Entered: 09/26/2011)
120 JUDGMENT/MANDATE of USCA #08−10630 as to 113 Notice of Appeal, filed by Richard Frame, Gabriela Castro, JN, Mark Hamman, Joey Salas, Scott Updike, Wendell Decker, 114 Notice of Appeal, filed by Richard Frame, Gabriela Castro, JN, Mark Hamman, Joey Salas, Scott Updike, Wendell Decker...It is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court...IT IS FURTHER ORDERED that defendant−appellee pay to plaintiffs−appellants the costs on appeal to be taxed by the Clerk of this Court...E GRADY JOLLY, Circuit Judge, joined by JONES, Chief Judge, and SMITH, GARZA, CLEMENT, OWEN, and ELROD, Circuit judges, dissents in part and concurs in part. Case remanded to the district court for further proceedings. Issued as Mandate: 10/7/2011. (tle) (Entered: 10/11/2011)
121 Opinion of USCA #08−10630(certified copy) in accordance with USCA judgment re 113 Notice of Appeal,, filed by Richard Frame, Gabriela Castro, JN, Mark Hamman, Joey Salas, Scott Updike, Wendell Decker, 114 Notice of Appeal,, filed by Richard Frame, Gabriela Castro, JN, Mark Hamman, Joey Salas, Scott Updike, Wendell Decker...Accordingly, we VACATE the district court's judgment and REMAND for further proceedings...For the reasons state 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 (see opinion for specifics). (tle) (Entered: 10/11/2011)
122 Appeal Record Returned:USCA #08−10630 consisting of 2 certified copies of Appendix #42, 43, the certified copy of the record has been recycled. (tle) (Entered: 10/11/2011)
Case re−opened per 120 USCA5 Judgment, 121 USCA5 Opinion entered on the docket 10/11/2011. (tle) (Entered: 10/11/2011)
123 ORDER FOR ADMISSION PRO HAC VICE granting 119 Application for Admission Pro Hac Vice of David Ferleger. Clerk shall deposit application fee to the Non−Appropriated Fund of this Court. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Terry R Means on 10/12/2011) (dnc) (Entered: 10/13/2011)
124 Unopposed Motion for Extension of Time to File Answer filed by The City of Arlington (Voss, Edwin) (Entered: 10/20/2011)
125 ORDER granting 124 Motion for Extension. The City of Arlington answer due 10/31/2011. (Ordered by Judge Terry R Means on 10/25/2011) (dnc) (Entered: 10/25/2011)
126 NOTICE Suggestion of Death filed by Gabriela Castro, Wendell Decker, Richard Frame, Mark Hamman, JN, Joey Salas, Scott Updike (Ferleger, David) (Entered:

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 13 of 14

10/31/2011
11/01/2011
11/01/2011
11/01/2011
11/07/2011 11/08/2011 11/09/2011 11/16/2011 11/18/2011 11/22/2011 11/22/2011 11/30/2011 12/16/2011 12/27/2011

10/26/2011)
127 Defendant's ANSWER to 94 Amended Complaint with Jury Demand filed by The City of Arlington Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. (Voss, Edwin) (Entered: 10/31/2011)
128 ORDER REQUIRING COMPLIANCE WITH VARIOUS LOCAL RULES: The following attorney is ORDERED to comply with various local civil rules of the Northern District of Texas (NDTX): MIGUEL M DE LA O. (See Order for Specifics) (Ordered by Judge Terry R Means on 11/1/2011) (dnc) (Entered: 11/01/2011)
129 ORDER TO SUBMIT JOINT STATUS REPORT AND PROPOSED DISCOVERY PLAN: The parties are ordered to electronically file with the clerk of the court the signed joint status report and proposed discovery plan (one instrument) within 30 days of the date of the filing of this order. (Ordered by Judge Terry R Means on 11/1/2011) (dnc) (Entered: 11/01/2011)
130 ORDER REQUIRING COMPLIANCE WITH LOCAL RULE: Charles Duke Ferguson is ORDERED to either seek admission to the NDTX or apply for permission to appear pro hac vice in this case no later than 4:00 p.m. on 11/22/2011. (Ordered by Judge Terry R Means on 11/1/2011) (dnc) (Entered: 11/01/2011)
131 NOTICE of Plaintiffs' Compliance with November 1, 2011 Order Requiring Compliance with Various Local Rules re: 130 Order, filed by Gabriela Castro, Wendell Decker, Richard Frame, JN, Joey Salas, Scott Updike, Mark Hamman. (Ferleger, David) Modified filers on 11/8/2011 (dnc). (Entered: 11/07/2011)
132 MOTION for Leave to Withdraw Counsel by de la O, Marko, Magolnick &Leyton filed by Gabriela Castro, Wendell Decker, Richard Frame, Mark Hamman, JN, Joey Salas, Scott Updike (de la O, Miguel) Modified text on 11/8/2011 (dnc). (Entered: 11/08/2011)
133 Certificate of Service re: 131 Salas, Scott Updike (Ferleger, David) Modified on 11/10/2011 (ewd). (Entered: 11/09/2011)
134 ORDER GRANTING 132 LEAVE TO WITHDRAW. Attorneys Charles Duke Ferguson and Miguel M de la O terminated. (Ordered by Judge Terry R Means on 11/16/2011) (dnc) (Entered: 11/16/2011)
135 NOTICE of Compliance by Defendant's Counsel re: 128 Order, filed by The City of Arlington (Voss, Edwin) (Entered: 11/18/2011)
136 NOTICE of Change of Address for Attorney John Mitchell Nevins on behalf of JN. (Nevins, John) (Entered: 11/22/2011)
137 NOTICE of Compliance by Plaintiffs' Local Counsel re: 128 Order, filed by JN (Nevins, John) (Entered: 11/22/2011)
138 Joint STATUS REPORT and Proposed Discovery Plan filed by Gabriela Castro, Wendell Decker, Richard Frame, JN, Joey Salas, The City of Arlington, Scott Updike. (Voss, Edwin) (Entered: 11/30/2011)
139 Supplemental Document by The City of Arlington as to 138 Status Report. (Voss, Edwin) (Entered: 12/16/2011)
140 INITIAL SCHEDULING ORDER: Joinder of Parties due by 9/28/2012. Each party plaintiff must file any motions for leave to amend his pleadings no later than 11/30/2012. Each party defendant must file any motions for leave to amend his pleadings no later than 12/31/2012. Discovery due by 1/31/2013. Motions due by 2/28/2013. (Ordered by Judge Terry R Means on 12/27/2011) (dnw) (Entered: 12/27/2011)

Case: 4:05-cv-470 As of: 09/07/2012 03:15 PM CDT 14 of 14

02/27/2012 05/11/2012
05/31/2012 06/05/2012 06/14/2012 06/19/2012 06/22/2012

141 Received letter from United States Court of Appeals For the Fifth Circuit re:08−10630, Richard Frame, et al v. City of Arlington. Enclosed is a copy of the Supreme Court order denying certiorari. (tle) (Entered: 02/27/2012)
142 ***TERMINATED PER 147 *** MOTION for Protective Order filed by Gabriela Castro, Wendell Decker, Richard Frame, Mark Hamman, Joey Salas with Brief/Memorandum in Support. (Attachments: # 1 Brief in Support, # 2 Certificate of Conference, # 3 Proposed Order) (Ferleger, David) Modified on 6/25/2012 (dnw). (Entered: 05/11/2012)
143 Agreed MOTION for Extension of Time to File Response/Reply by City re: 142 MOTION for Protective Order filed by The City of Arlington, Richard Frame with Brief/Memorandum in Support. (Voss, Edwin) Modified filers on 6/1/2012 (dnw). (Entered: 05/31/2012)
144 ORDER granting 143 Motion to Extend Time to File Response. Responses due by 6/22/2012. (Ordered by Judge Terry R Means on 6/5/2012) (dnw) (Entered: 06/06/2012)
145 Unopposed MOTION to Withdraw as Attorney , Denise V. Wilkerson, filed by The City of Arlington (Voss, Edwin) (Entered: 06/14/2012)
146 ORDER granting 145 Motion to Withdraw as Attorney. Attorney Denise V Wilkerson terminated. (Ordered by Judge Terry R Means on 6/19/2012) (dnw) (Entered: 06/19/2012)
147 NOTICE of Withdrawal of Plaintiffs' Motion for Protective Order, Without Prejudice re: 142 MOTION for Protective Order filed by Gabriela Castro, Wendell Decker, Richard Frame, Mark Hamman, Joey Salas, Scott Updike (Ferleger, David) (Entered: 06/22/2012)

 
 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

July 7, 2009

No. 08-10630

Charles R. Fulbruge III 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 JOLLY, PRADO, and SOUTHWICK, Circuit Judges. E. GRADY JOLLY, Circuit Judge:
The plaintiffs are persons with disabilities who depend on motorized wheelchairs for mobility. They allege that the City of Arlington, by failing to make the City’s curbs, sidewalks, and certain parking lots ADA-compliant, has violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court dismissed their complaint on the basis that their claims were barred by the applicable two-year statute of limitations. This appeal raises more than one issue of first impression–at least for this court. Initially, we must decide whether Title II of the ADA authorizes the plaintiffs’ claims; specifically, whether the City’s curbs, sidewalks, and parking lots constitute a service,

No. 08-10630
program, or activity within the meaning of Title II. Because we decide Title II authorizes the plaintiffs’ claims, we next ask whether those claims are subject to a statute of limitations and, if so, when the claims accrued. We hold that the plaintiffs’ claims are subject to a two-year statute of limitations, and that they accrued upon the City’s completion of any noncompliant construction or alteration. We further conclude, however, that it was the City’s burden to prove accrual and expiration of any limitations period. Because the district court erred in requiring the plaintiffs to prove that their claims had not expired, we must remand for further proceedings.
I. This appeal comes to us from the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We therefore accept the factual allegations of the plaintiffs’ complaint as true. See, e.g., Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). The plaintiffs filed their complaint in the district court on July 22, 2005, and thereafter amended it three times. Accordingly, for facts we refer to the plaintiffs’ final complaint, as amended. The plaintiffs are individuals who reside in Arlington who have mobility impairments that require that they use motorized wheelchairs. They point to more than one hundred curbs and poorly maintained sidewalks in Arlington that they allege make their travel impossible or unsafe. They also point to at least three public facilities lacking adequate handicap parking. Count 1 of the plaintiffs’ complaint alleges violations of Title II of the ADA. See Title II of the ADA, 42 U.S.C. §§ 12131 et seq. (prohibiting public entities from discriminating on the basis of disability).1 Count 2 of the plaintiffs’ complaint alleges violations
1 Count 1 also alleges that the City has violated 28 C.F.R. § 35.150 by failing to implement a plan to transition its curbs, sidewalks, and parking lots to ADA compliance. 28 C.F.R. § 35.150 is a regulation promulgated by the Attorney General which requires that public entities develop transition plans to achieve compliance with Title II. See ADA Accessibility Guidelines, 28 C.F.R.§ 35.150(d)(1) (requiring public entities to draft transition
2

No. 08-10630
of Section 504 of the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of disability. See Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The plaintiffs do not seek monetary damages; they only ask for an injunction requiring the City to bring its curbs, sidewalks, and parking lots into ADA compliance.
The City of Arlington moved to dismiss the complaint, asserting three grounds for dismissal: (1) that the claims were barred by the applicable two-year statute of limitations; (2) that the plaintiffs lacked standing to invoke Title II, the ADA Accessibility Guidelines, or Section 504 of the Rehabilitation Act; and (3) that the alleged facts did not state a legal claim of discrimination.
The district court granted the City’s motion on the ground that the plaintiffs’ claims were barred by the applicable two-year statute of limitations. The district court held that the plaintiffs’ claims accrued, and the two-year limitations period began to run, on the date the City completed the construction or alteration of any noncompliant curb, sidewalk, or parking lot. Because the plaintiffs’ complaint did not point to dates of noncompliant construction or alteration within the two years preceding its filing date, July 22, 2005, the district court dismissed the plaintiffs’ claims.
On appeal, the plaintiffs argue that their claims accrued on the date individual plaintiffs encountered a noncompliant barrier–not on the date the City completed a noncompliant construction or alteration. In the alternative, the plaintiffs argue that statutes of limitation do not apply to claims for injunctive relief; that the noncompliant curbs, sidewalks, and parking lots are continuing
plans). The district court dismissed, citing Alexander v. Sandoval, 532 U.S. 275 (2001), the plaintiffs’ claims under 28 C.F.R. § 35.150 because it concluded the plaintiffs had no private right of action to enforce that regulation. See id. at 291 (implementing regulation, on its own, cannot create private right of action); see also Iverson v. City of Sandusky, 452 F.3d 94, 99-100 (1st Cir. 2006) (no private right of action to enforce 28 C.F.R. § 35.150); Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004) (same). The plaintiffs do not appeal that ruling and therefore we do not address it.
3

No. 08-10630
violations of the ADA that relieve them of the limitations bar; and that dismissal was improper because the City, and not the plaintiffs, had the burden to establish when the plaintiffs’ claims accrued and the limitations period expired.
We consider each of the plaintiffs’ arguments separately. But before we reach the limitations and accrual issues, we resolve whether Title II otherwise authorizes the plaintiffs’ claims.
II. We review a Rule 12(b)(6) dismissal de novo. See, e.g., Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2007). “The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir. 1998)). The interpretation of a statute is a question of law we also review de novo. See, e.g., Motient Corp. v. Dondero, 529 F.3d 532, 535 (5th Cir. 2008).
A. The immediate question is whether Title II of the ADA authorizes the plaintiffs’ claims, that is, whether the City’s curbs, sidewalks, and parking lots are a service, program, or activity within the meaning of Title II. For reasons we explain, we decide that they are. The ADA was passed “[t]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).2 The focus of the instant appeal is on Title
2 The ADA was modeled after the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of their disability. See 29 U.S.C. § 794 (“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 receiving [f]ederal financial assistance.”). The ADA expressly provides that the remedies, procedures, and rights available under the Rehabilitation Act also apply to the ADA, and thus jurisprudence interpreting either statute is applicable to both. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000), cert. denied, 531 U.S. 959 (2000). For simplicity’s sake, we refer only to the ADA claim.
4

No. 08-10630
II of the ADA, which prohibits public entities from discriminating against individuals on the basis of disability. Title II 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.” 42 U.S.C. § 12132.
Title II is enforceable through a private cause of action, see, e.g., Barnes v. Gorman, 536 U.S. 181, 184-85 (2002), and we have held that to make a prima facie case under Title II a plaintiff must show: (1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004). There is no dispute that the City is a public entity, or that the plaintiffs here have qualifying disabilities.3 There is, however, a dispute over whether curbs, sidewalks, and parking lots are encompassed within services, programs, or activities for which a public entity has liability under Title II.
Title II does not define “services, programs, or activities.” Although we have not decided whether curbs, sidewalks, or parking lots fall within Title II’s coverage, other circuits have interpreted “services, programs, or activities” broadly.
For example, the Ninth Circuit has specifically held that public sidewalks are a service, program, or activity within the meaning of Title II, by reasoning that “services, programs, or activities” can be construed as “‘anything a public
3 A public entity is “any [s]tate or local government” or “any department, agency, special purpose district, or other instrumentality of a [s]tate or [s]tates or local government.” 42 U.S.C. § 12131. A “disability” under the ADA is “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1).
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No. 08-10630 entity does.’” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (quoting Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d, 524 U.S. 206 (1998))). The focus of its inquiry, the court wrote, was not on whether a sidewalk can be characterized as a service, program, or activity, but on whether it is “‘a normal function of a government entity.’” Id. (quoting Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999) (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d Cir. 1997))). The court concluded that maintaining public sidewalks is “without a doubt something that the [City] ‘does,’” and public sidewalks, therefore, fall within the scope of Title II. Id. (quotation marks and citation omitted).
The Sixth Circuit has also broadly held that “the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998). Although that court has not specifically decided that sidewalks constitute “services, programs, or activities” within the meaning of Title II, it has held that a plaintiff has a private cause of action under Title II to enforce 28 C.F.R. § 35.151, a regulation that establishes accessibility standards for curbs and sidewalks. Ability Ctr. of Greater Toledo, 385 F.3d at 906-07. The plaintiffs in that case complained that the City of Sandusky failed to comply with 28 C.F.R. § 35.151’s accessibility standards when it replaced public curbs and sidewalks. Id. at 903. The court held that the plaintiffs had a private cause of action to enforce 28 C.F.R. § 35.151 because the regulation effectuates a mandate of Title II; Title II, it reasoned, not only prohibits intentional discrimination, but also requires that public entities make certain accommodations in the course of providing public services including, in that case, the maintenance of public sidewalks. Id. at 90607.
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Finally, the Second and Third Circuits have also read “services, programs, or activities” broadly. The Second Circuit has called the language “a catch-all phrase that prohibits all discrimination by a public entity, regardless of context,” and has counseled against “hair-splitting arguments” over what falls within its reach. Innovative Health Sys., 117 F.3d at 45. The Third Circuit has similarly held the language “is intended to apply to anything a public entity does.” Yeskey, 118 F.3d at 171 (quotation marks and citation omitted).
It is not necessary for us to conclude, as the Ninth Circuit did, that Title II’s “services, programs, or activities” includes “anything a public entity does.” It is enough for present purposes that we agree that “services, programs, or activities” is at least broad enough to include curbs, sidewalks, and parking lots. Streets and sidewalks, as well as public parking areas, are reasonably understood to be services within the meaning of Title II. Absent a statutory definition or definitive statutory clue, a word “must be given its ordinary, ‘everyday meaning.’” See United States v. Hildenbrand, 527 F.3d 466, 476 (5th Cir. 2008) (quoting Watson v. United States, 128 S.Ct. 579, 583 (2007)). Among the definitions for “service” is “a facility supplying some public demand.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1137 (11th ed. 2003). When, for instance, a public entity provides a sidewalk, or its accompanying curbs, or public parking lots, it provides “a facility supplying some public demand.” Because providing curbs, sidewalks, and parking lots is a service within the ordinary, “everyday meaning” of that word, we hold that those facilities also constitute a “service” within the meaning of Title II.
This understanding is consistent with the legislative history of the ADA, which indicates that Congress envisioned that the ADA would require that local and state governments maintain disability-accessible sidewalks. See H.R.Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (“The employment, transportation, and public accommodation sections of this Act
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No. 08-10630
would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets.”). In the light of that legislative intent, along with other circuits’ broad interpretation and our own appreciation of the plain meaning of the word services, we conclude that curbs, sidewalks, and parking lots are “services, programs, or activities” within the meaning of Title II. Accordingly, Title II authorizes the plaintiffs’ claims.
III. Now we are prepared to address whether the plaintiffs’ claims are nevertheless time-barred. Neither Title II of the ADA nor the Rehabilitation Act provides a limitations period, and the general federal statute of limitations does not apply to either statute.4 We have previously held that the Texas two-year statute of limitations for personal injury claims applies in Title II cases filed in Texas federal courts. Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2007). The district court therefore applied the correct statute of limitations. The plaintiffs argue, however, that the district court erred in ruling their claims accrued, and the statute began to run, on the date the City completed any noncompliant construction or alteration, instead of on the date the plaintiffs encountered a noncompliant barrier. The plaintiffs argue in the alternative that the statute of limitations does not apply to their claims because they seek only injunctive relief, and that noncompliant curbs, sidewalks, and parking lots are continuing violations of the ADA that relieve them of the limitations bar. We
4 Title II adopts the remedies, procedures, and rights of the Rehabilitation Act. 42 U.S.C. § 12133. The limitations period in Rehabilitation Act cases is governed by 42 U.S.C. § 1988(a). That statute directs courts to apply federal law if it provides a limitations period or, if it does not, apply common law, as modified by state law, if it is not inconsistent with the Constitution or laws of the United States. See, e.g., Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998) (citing Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir. 1992)). For Title II claims courts borrow the state statute of limitations from the most analogous state law claim.
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will first address the plaintiffs’ alternative arguments before we address the issue of accrual. We conclude that neither of the plaintiffs’ alternative arguments succeeds here.
A. First, we reject the plaintiffs’ assertion that the statute of limitations does not apply to their claims because they seek only injunctive relief. The plaintiffs cite Voices for Independence v. Pennsylvania Department of Transportation, 2007 WL 2905887 (W.D. Pa.), a district court opinion that held a statute of limitations did not apply in an ADA case seeking only equitable relief. Id. at *16-17. That opinion, in addition to being nonbinding, is also unpersuasive in the light of the fact that courts regularly apply statutes of limitation to claims under Title III of the ADA, for which only injunctive relief is available.5 See, e.g., Gaona v. Town & Country Credit, 324 F.3d 1050, 1054-56 (8th Cir. 2003) (applying Minnesota’s six-year statute of limitations to Title III claim for injunctive relief); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 n.2 (9th Cir. 2002) (holding ongoing violation brought Title III claim for injunctive relief within California’s one-year limitations period); Sexton v. Otis Coll. of Art & Design Bd. of Directors, 129 F.3d 127, 127 (9th Cir. 1997) (applying California’s one-year statute of limitations to Title III claim for injunctive relief); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547 (7th Cir. 1996), cert. denied, 519 U.S. 1093 (1997) (applying Illinois’s two-year statute of limitations to Title III claim for injunctive relief). We ourselves have recently held that statutes of limitations apply to § 1983 actions that seek only injunctive relief. See Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008). We decline to treat the plaintiffs’ Title II claims differently.
5 Remedies available under Title III of the ADA are the same as those under Title II of the Civil Rights Acts of 1964, 42 U.S.C. § 2000, for which there is only injunctive relief. 42 U.S.C. § 12188(a); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (Title II of the Civil Rights Acts of 1964 provides injunctive relief only).
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B. We also reject the plaintiffs’ characterization of noncompliant curbs, sidewalks, and parking lots as continuing violations that bring their claims within the limitations period. The continuing violations doctrine, which typically arises in the context of employment discrimination, relieves a plaintiff of a limitations bar if he can show a series of related acts to him, one or more of which falls within the limitations period. Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). We hesitate to extend that doctrine here, where the alleged violations are not related. A noncompliant curb, for instance, bears no relation to a noncompliant parking lot on the other side of the City. Furthermore, the concept of a continuing violation plainly is inconsistent with our ultimate holding in this case–which is that the noncompliant construction of a sidewalk constitutes the triggering accrual event for statute of limitations purposes. In sum, the two-year statute of limitations applies to the plaintiffs’ Title II claims, and the continuing violations doctrine does not.
IV. We now turn to the crucial issue in this appeal, which also is one of first impression: whether the plaintiffs’ claims accrued on the date the City completed a noncompliant construction or alteration, or on the date the plaintiffs encountered a noncompliant barrier. The district court held that the plaintiffs’ claims accrued, and the two-year limitations period began to run, on the date the City completed the construction or alteration of any noncompliant curb, sidewalk, or parking lot. Because the plaintiffs’ complaint did not allege dates of noncompliant construction or alteration within the two years preceding its filing date, July 22, 2005, the district court dismissed the plaintiffs’ claims. For reasons we explain, we agree with the City that the plaintiffs’ claims accrued upon the completion of a noncompliant construction or alteration.
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However, we agree with the plaintiffs that the City had the burden to prove its affirmative defense that the limitations period had expired with respect to each of the plaintiffs’ claims.
A. Although we borrow the statute of limitations for plaintiffs’ Title II claims from state law, federal law governs the claims’ accruals. Jenson v. Snellings, 841 F.2d 600, 606 (5th Cir. 1988). A claim ordinarily accrues when a plaintiff has “‘a complete and present cause of action’” or, stated differently, “when ‘the plaintiff can file suit and obtain relief.’” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201 (1997) (citations omitted)); Walker, 550 F.3d at 414. A statute may specify an accrual date by “explicit command.” See TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001). An accrual date may also be implied by “the structure and text of the particular statute.” Id. at 27; Disabled in Action of Penn. v. Southeastern Penn. Transp., 539 F.3d 199, 209 (3d Cir. 2008) (structure and text of 42 U.S.C. § 12147(a) imply that claims brought under Title II to compel ADA compliance at public transportation facilities accrue upon the completion of alterations to facilities). Title II, however, neither explicitly commands, nor implies, an accrual date for the plaintiffs’ claims. In the absence of either explicit or implicit statutory guidance, the plaintiffs urge us to apply the discovery rule, under which a claim accrues when a plaintiff knows or has reason to know of the injury that is the basis of the action. See, e.g., Johnson v. United States, 460 F.3d 616, 621 (5th Cir. 2006). Under the discovery rule, the plaintiffs’ claims would have accrued on the date individual plaintiffs encountered a noncompliant curb, sidewalk, or parking lot. The City urges a rule that instead attaches accrual to the date a noncompliant construction or alteration is complete. That rule focuses on the discriminatory act, instead of discovery of the discriminatory effect. See
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Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (“the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful” (citing Del. St. Coll. v. Ricks, 449 U.S. 250, 258 (1980)). The City argues that attaching accrual to an individual plaintiff’s discovery effectively would eliminate the applicability of any statute of limitations in like ADA cases, and would therefore subject municipalities to unlimited and continuing liability.
We think the City’s argument is more persuasive. First, we note that there is no default federal discovery rule, and nothing requires that we apply it in this case. The United States Supreme Court has declined to adopt a general federal discovery rule, TRW, Inc., 534 U.S. at 27 (“[L]ower federal courts ‘generally apply a discovery accrual rule when a statute is silent on the issue.’ But we have not adopted that position as our own.” (quotation marks and citations omitted)); see also id. at 37 (Scalia, J., concurring) (“injury-discovery rule” is “bad wine of recent vintage”), and has limited its own use of the discovery rule to cases alleging fraud or medical malpractice. Id. (citing Bailey v. Glover, 21 Wall. 342, 347-50 (1875) (fraud); Urie v. Thompson, 337 U.S. 163, 169-71 (1949) (latent medical injury claims under Federal Employers’ Liability Act); Kubrick, 444 U.S. at 120 (medical malpractice claims under Federal Tort Claims Act)). Of course, what fraud and medical malpractice share in common is the risk that their injuries cannot be discovered until some time after the injurious act has passed. For such latent injuries “the cry for a discovery rule is loudest.” See, e.g., Rotella v. Wood, 528 U.S. 549, 555 (2000). Here, however, the alleged ADA violations are not latent. The fact that a sidewalk does not have a curb cut, for instance, is not hidden, and that an individual plaintiff may not encounter the sidewalk within the limitations period does not somehow make the missing curb cut concealed from potential plaintiffs. See Disabled in Action of Penn., 539 F.3d at 217 n.16 (expressing hesitation in applying discovery rule to plaintiffs’ Title II claim alleging city’s subway station did not
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include elevators because there was “nothing latent” about “the fact that newly renovated subway stations do not include elevators”). We therefore think it is inappropriate to apply a discovery rule here.
Second, although it is true that we have applied the discovery rule in ADA cases alleging employment discrimination, see, e.g., Holmes, 145 F.3d at 684; Burfield v. Brown, Moore & Flint, 51 F.3d 583, 589 (5th Cir. 1995), the discovery date in those cases coincided with the date of the alleged discriminatory act. In Burfield, for example, we held that the plaintiff’s claim accrued on the date he received official notice of termination from his employer. Burfield, 51 F.3d at 589. In Holmes, we held that the plaintiff’s claim accrued on the date he first received notice of termination, not on the date his employer later reaffirmed termination. Holmes, 145 F.3d at 684-85. Because the dates of the plaintiff’s discovery and of the alleged discriminatory act (termination) were the same, those cases offer no rationale or guidance in the context of our case. Under the facts of those cases, for instance, both the plaintiff and his defendant-employer are aware that the limitations period will commence to run on a definite and singular date; it makes no difference either to the plaintiff or the defendant whether the discovery rule is applied because the result is the same. The discovery rule applied to the facts of this case, however, would forever deny the City a definite limitations period, because every future plaintiff’s discovery of a noncompliant sidewalk would reset the limitations clock.
We come to our final point, and that is consideration of the policies underlying statutes of limitations. Statutes of limitations exist to protect defendants against stale claims. See, e.g, Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49 (1944) (“The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.”). If the discovery rule were applied in
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this case, hereafter every new potential plaintiff would constantly retrigger the public entity’s liability for any noncompliant sidewalk, without regard to the publically known date of its completion. As the City has pointed out, the effect would be an evisceration of the statute of limitations defense in like ADA cases and unlimited exposure to liability. We think the wiser, more reasonable, and–in the words of Order of Railroad Telegraphers– more just approach, is a rule under which a public entity is liable for a noncompliant construction or alteration, but only during a definite and single limitations period.
Accordingly, we hold that the plaintiffs’ claims accrued on the date the City completed the construction or alteration of any noncompliant curb, sidewalk, or parking lot. Under this rule, plaintiffs may hold a public entity liable for construction or alterations that do not comply with the ADA, but only within the time period specified by the applicable statute of limitations. This holding, however, is not the end of our analysis.
B. Finally, we must consider whether outright dismissal of the complaint was improper, which depends upon who had the burden to establish the expiration of the limitations period. As a practical matter, the City, and not the plaintiffs, is in the best position to prove accrual. The plaintiffs could not point to dates of construction or alteration within the two years preceding the complaint’s filing date, July 22, 2005, without having engaged in discovery with the City. Regardless, it is the City’s burden to prove accrual. Under Federal Rule of Civil Procedure 8, the party that asserts an affirmative defense, including the expiration of a limitations period, bears the burden of proof. FED. R. CIV. P. 8 (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including . . . statute of limitations[.]”); see also In re Hinsley, 201 F.3d 638, 644-45 (5th Cir. 2000) (Under Texas law, “[a] party asserting limitations must establish the applicability of the limitations statute,
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No. 08-10630 but must, as well, prove when the opponent’s cause of action accrued[.]” (quoting Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App. 1984, writ refused n.r.e.)). The district court erred in burdening the plaintiffs with proving dates of construction or alteration. The district court’s dismissal on the basis that the plaintiffs had not alleged accrual within the two years preceding July 22, 2005, was therefore improper. We therefore must vacate the judgment of dismissal and remand. The City will be required to establish its affirmative defense that the plaintiffs’ claims have expired in a manner consistent with this opinion.
V. To summarize, we hold that curbs, sidewalks, and parking lots constitute a service, program, or activity within the meaning of Title II of the ADA, and that the plaintiffs have established claims under Title II. Although the district court correctly held both that the plaintiffs’ claims were subject to a two-year statute of limitations, and that they accrued on the date the City completed any noncompliant construction or alteration, it improperly burdened the plaintiffs with proving accrual within the two years preceding the filing of their complaint. We therefore VACATE the district court’s judgment of dismissal and REMAND for such further proceedings not inconsistent with this opinion.
VACATED and REMANDED.
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PRADO, Circuit Judge, concurring in part and dissenting in part: In holding that the plaintiffs’ cause of action for their Americans with
Disabilities Act (“ADA”) claim accrues when the City completes the noncompliant construction, today’s majority ignores the plain text of the statute, fails to acknowledge the conflict it creates with traditional rules of standing, and creates a rule at odds with the ADA’s broad remedial purpose. I recognize the merits of the majority’s position and sympathize with the majority’s goal of ensuring that the City is not liable for stale claims. Nevertheless, I conclude that the better rule—and the one that best comports with the text and purpose of the ADA—is that a cause of action accrues when a plaintiff suffers an injury under the Act based on that plaintiff’s actual (as opposed to conjectural) inability to traverse the noncompliant sidewalk or other facility. Therefore, with great respect for my colleagues, I must dissent.1
I. The main issue in this case is the purely legal question of when a plaintiff’s claim for injunctive relief under Title II of the ADA accrues.2 There are two possibilities: the claim accrues either (1) when the City completes the inaccessible construction or alteration or (2) when the plaintiff actually encounters the noncompliant sidewalk or other facility. In choosing the earlier accrual date, the majority makes a significant legal misstep: it fails to identify precisely when the plaintiffs in this case suffered an injury. That, to me, is the crux of the issue. Comporting with our general
1 I concur in Parts I and II of the court’s opinion.
2 The majority concludes that a statute of limitations applies to a claim for injunctive relief under Title II of the ADA. But see Voices for Independence v. Pa. Dep’t of Transp., No. 06-78, 2007 WL 2905887, at *16 (W.D. Pa. Sept. 28, 2007) (“Defendants’ statute of limitations defense is somewhat misplaced in light of the fact that Plaintiffs are seeking only equitable relief here.”). Because I believe that even if a statute of limitations applies, it would begin to run only once the plaintiff actually encounters a noncompliant sidewalk or other facility, I merely assume the applicability of a statute of limitations to claims for injunctive relief. I would leave the full analysis of this issue for another day.
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approach to claim accrual, a plaintiff’s claim accrues when the plaintiff suffers an injury. See Wallace v. Kato, 549 U.S. 384, 388 (2007); Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008) (noting that “the limitations period begins to run ‘the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured’” (quoting Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)). Under the text of the ADA provision at issue, an injury occurs when the plaintiff actually suffers exclusion from or denial of a service, program, or activity of a public entity because of a disability. See 42 U.S.C. § 12132. The majority’s discussion of the discovery rule—which can postpone the running of a statute of limitations for a prior injury—is thus misplaced and unnecessary. See Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 214 (3d Cir. 2008) (“[T]he district court erred in applying the discovery rule to establish when [the plaintiffs’] claims accrued before first determining, per the terms of § 12147(a), when [the plaintiffs’] alleged injuries occurred. These inquiries are analytically distinct.”). Instead, we should focus on when the plaintiffs in this case actually suffered an injury under the ADA.
As the majority notes, “[a] claim ordinarily accrues when a plaintiff has ‘a complete and present cause of action’ or, stated differently, when ‘the plaintiff can file suit and obtain relief.’” Maj. Op. at 11 (quoting Wallace, 549 U.S. at 388). Only congressional guidance can allow us to deviate from this general rule. Indeed, the Supreme Court has admonished that “[w]hile it is 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, we will 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). As the Supreme Court has further explained, “Unless Congress has told us otherwise in the legislation at issue, a cause of action does not
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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).
A plaintiff does not have a complete and present cause of action and cannot file suit and obtain relief until, inter alia, he or she has standing, which in turn requires the plaintiff to suffer an “injury in fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Thus, an essential question (and one I think the majority overlooks) is when these particular plaintiffs suffered an injury in fact.
One need only look to the text of the ADA to answer this question. The provision at issue, 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. The focus of the statute is on an individual with a disability being excluded from or denied the benefits of services, programs, or activities. Although the City’s wrongful construction is a general discriminatory act against all disabled people, a particular disabled person would not suffer an injury in fact until he or she encounters that discriminatory exclusion or denial. Simply put, there cannot be an injury under the ADA until the plaintiff actually suffers the exclusion or denial that the statute prohibits. Thus, to suffer an injury under Title II of the ADA, the qualified individual must have actually encountered the discrimination or actually be deterred from visiting the public accommodation because of exclusion from or denial of the benefits of a service, program, or activity. See Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-37 (9th Cir. 2002) (“[O]nce 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.” (emphasis
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added)); Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo., 458 F. Supp. 2d 160, 167 (S.D.N.Y. 2006) (“In the context of the ADA, awareness of discriminatory conditions, and the avoidance of a public accommodation because of that awareness, is injury in fact.” (emphasis added)). A plaintiff would not have standing to bring suit against the City here unless that plaintiff had actually encountered the noncompliant sidewalk or other facility. Under the general rule for statutes of limitations, then, the claim does not accrue until this point.
Of course, Congress can specify precisely when the claim will accrue. The Third Circuit recently resolved a case involving a different provision of the ADA under such a scenario. See Disabled in Action, 539 F.3d 199. In that case, the public entity, the Philadelphia subway system, planned to make alterations to one of its subway stations but was not going to include an elevator. Id. at 205. A nonprofit group that seeks to eliminate discrimination against disabled people brought suit more than two years after learning of the subway system’s plans but less than two years after the completion of the construction. Id. at 206. The parties agreed that the applicable statute of limitations was two years; thus, if the plaintiffs’ cause of action accrued when they learned of the public entity’s plans, their suit was untimely, but if it accrued at the completion of construction, then their suit fell within the statute of limitations. Id. at 208. The Third Circuit accepted the plaintiffs’ argument that their claim did not accrue until the subway system had actually finished the construction without an elevator.3 Id. at 209. The court based its decision on the language of the relevant statute, which provides that a public entity discriminates if it makes alterations to its
3 The court did not discuss the issue in this case: whether the statute of limitations might accrue at some point after the public entity completes the construction. Indeed, the court’s ruling allowed the plaintiffs’ suit to proceed, so they did not need to seek the same rule that the plaintiffs do here.
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transportation system that, upon the completion of such alterations, are inaccessible. Id. at 209-10 (citing 42 U.S.C. § 12147(a)). That is, the court construed the statute’s language as stipulating when the injury occurred and therefore the cause of action accrued: “upon the completion of such alterations.” Id. (citing 42 U.S.C. § 12147(a)).
Here, the plaintiffs assert a violation of a different portion of the ADA, 42 U.S.C. § 12132, which is the general prohibition against discrimination in the services, programs, or activities of a public entity. As the majority correctly explains, this includes the provision of accessible sidewalks. Based on a regulation implementing the ADA’s mandates, a public entity must include curb cuts when undertaking new construction or alterations to a sidewalk. See 42 U.S.C. § 12134(a); 28 C.F.R. § 35.151(e)(1). Specifically, with respect to construction or alterations commenced after January 26, 1992, “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.” 28 C.F.R. § 35.151(e)(1).
Notably, neither 42 U.S.C. § 12132 nor 28 C.F.R. § 35.151(e)(1) includes language suggesting that the injury occurs upon completion of the construction or alteration. Instead, “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.” 42 U.S.C. § 12132. One aspect of possible discrimination is a newly-constructed or altered sidewalk that does not include a curb cut. 28 C.F.R. § 35.151(e)(1). Much like the text of the statute informed the Third Circuit’s decision in Disabled in Action, so too should the text of the ADA’s general prohibition against discrimination inform our analysis. We should vary from the typical rule for claims accrual only for a particularly compelling reason, such as if the text or context of the statute at issue so compels. See Bay Area Laundry, 522 U.S. at 201. But that is not the
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No. 08-10630 case here. Indeed, the policies behind the ADA, as I discuss below, counsel us to adhere to the general rule in this case.
Construing the plaintiff’s injury as occurring when that plaintiff actually encounters a noncompliant sidewalk or other facility makes logical and legal sense. A plaintiff who simply might suffer an injury in the future based on the public entity’s wrongful act does not have standing if the individual has no knowledge that he or she is being denied access because of a lack of a curb cut on a sidewalk. For example, a disabled person who lives on the other side of town from the noncompliant sidewalk, does not learn of the noncompliant sidewalk, and will never encounter this sidewalk has not suffered an injury in fact under the ADA and would not have standing to file suit. Standing is necessarily founded upon an actual injury, and in the context of 42 U.S.C. § 12132, an injury occurs when the disabled individual actually attempts to use (or is deterred from using) the noncompliant sidewalk. See HIP (Heightened Independence & Progress), Inc. v. Port Auth. of N.Y. & N.J., No. 07-2982, 2008 WL 852445, at *4 (D.N.J. Mar. 28, 2008) (“The re-opening of the Grove Street PATH Station, alone, did not injure Plaintiffs. Only after Plaintiffs’ members attempted to use the Grove Street PATH Station, and realized that it was not accessible to disabled persons, was an injury sustained.”).
It follows that the actual denial of access constitutes a plaintiff’s injury under the ADA; only then can a plaintiff have a “complete and present cause of action” to “file suit and obtain relief.” That is, based upon the statutory prohibition in the text of the ADA, the actual—as opposed to conjectural—denial of access triggers the running of the statute of limitations, particularly when the plaintiff is seeking only injunctive relief. See James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001) (noting that to have standing to seek injunctive relief, a plaintiff must show that he or she is “likely to suffer future injury by the
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No. 08-10630
defendant and that the sought-after relief will prevent that future injury” (emphasis added)).
The majority proceeds, however, as if a disabled person suffers an injury—and therefore has a complete and present cause of action—once the City finishes the construction. According to the majority, the City’s wrongful act triggers the statute of limitations. But 42 U.S.C. § 12132 focuses not on the City, but on a qualified individual who is being excluded from or denied the benefits of a service, program, or activity. Indeed, the majority acknowledges that to prove a prima facie case under Title II of the ADA, the plaintiff must show that, inter alia, he or she is “being denied the benefits of services, programs, or activities.” Maj. Op. at 5 (citing Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004)) (emphasis added). The use of the gerund “being” signifies that the plaintiff must show that he or she is suffering a present or future injury to obtain injunctive relief. If the plaintiff never encounters the noncompliant sidewalk (or is not actually deterred from accessing it), then he or she is not being excluded from or denied the benefits of anything. See HIP (Heightened Independence & Progress), Inc., 2008 WL 852445, at *4.
It is not as if the City’s construction injured the plaintiff but the plaintiff did not understand the effects of the City’s wrongful act or recognize the injury; instead, the plaintiff does not suffer an injury at all until he or she physically encounters, or actually learns of and is deterred from attempting to access, a noncompliant sidewalk. A lack of accessibility in the abstract is not enough for a disabled plaintiff to have standing, as that would be a conjectural harm. See, e.g., O’Shea v. Littleton, 414 U.S. 488, 494 (1974); cf. Pickern, 293 F.3d at 1136-37. Put differently, a denial of access is not a later consequence of an injury but rather is the injury itself. The plaintiffs here recognized this when they described the injury in their complaint as the “frequent[] deni[al of] the full and equal use and enjoyment of Arlington’s pedestrian rights-of-way while
22

No. 08-10630
conducting daily activities.” The complaint also details the specific barriers to access each plaintiff suffers every day and affirms the plaintiffs’ desire to travel to various inaccessible destinations in the future.
The majority fails to recognize that the City’s wrongful act and the plaintiffs’ injury occur at different points in time. Although the majority rejects the Western District of Pennsylvania’s analysis in Voices for Independence as unpersuasive, that decision correctly separated the wrongful act from the plaintiff’s injury. Under the same facts as here, the court stated,
While we agree with Defendants that it is acts of “new construction” and/or “alterations” which trigger a public entity’s duty to install the requisite curb cuts and, while we further agree that the failure to install the required curb cuts constitutes an act of discrimination under Title II of the ADA, we conclude that Defendants’ statute of limitations argument misses the mark. The issue of when a defendant’s duty arises (and/or when it is breached by perpetration of a discriminatory act) is distinct from the issue of when a plaintiff’s injury arises or when his cause of action begins to accrue. 2007 WL 2905887, at *13. We should not conflate the City’s wrongful act with the plaintiffs’ injury stemming from that wrongful act. These are two separate and distinct concepts. Although a wrongful act and an injury often occur at the same time, they are not concurrent here. The City acts unlawfully when it builds a noncompliant sidewalk, but the individual plaintiffs are not injured until they actually suffer the barrier to access. Because there is a private right of action to vindicate one’s rights under Title II of the ADA, and because a plaintiff must actually be excluded from or denied the benefits of the sidewalks or other facilities to suffer an injury and therefore have a cause of action under the text of the statute, we must separate the initial wrongful act from the plaintiff’s injury.4 It follows that the date on which the City constructed a
4 Consider, for example, the Alabama Supreme Court’s decision in Ramey v. Guyton, 394 So. 2d 2 (Ala. 1980). In that case, the defendant, a doctor, prescribed birth control pills to the plaintiff. Id. at 3. About a year after the plaintiff’s visit to the doctor, she suffered a
23

No. 08-10630
sidewalk without a curb cut has no bearing on the accrual of the cause of action. The focus of our analysis should be on when the plaintiffs actually suffered the denial of access that the text of the ADA prohibits.
In sum, under our general rule for statutes of limitations, a plaintiff’s claim does not accrue until he or she has a complete and present cause of action. A plaintiff does not have a complete and present cause of action unless the plaintiff has standing, which in turn requires the plaintiff to suffer an injury in fact. Under Title II of the ADA, a plaintiff does not suffer an injury in fact until he or she suffers actual exclusion from the inaccessible services, programs, or activities. It follows that the statute of limitations did not begin to run in this case until the plaintiffs actually encountered the noncompliant sidewalk or other facility.
II. There is no compelling reason to deviate from our general rule for claim accrual in this case. In fact, the policy considerations cut in favor of ruling that the plaintiffs’ request for injunctive relief to correct the ADA noncompliance accrues when the plaintiffs actually suffer the injury. In weighing the relevant policies in this case, the majority fails to consider the ADA’s “broad mandate” and “sweeping purpose” of eradicating discrimination against disabled people in public accommodations. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001); see also Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 239 (5th Cir. 2005) (discussing the “ADA’s broad prohibitions of discrimination in public services and accommodations”).
stroke, which she claimed stemmed from the doctor’s alleged negligent act in prescribing the birth control pills. Id. The Alabama Supreme Court ruled that the plaintiff’s cause of action accrued on the date of her stroke, not on the date the doctor prescribed the birth control pills. Id. As the court stated, “the negligent act and the resultant harm did not coincide. Thus, the accrual date of the cause is delayed to the date when the injury occurred.” Id. at 4. The same principle holds true here: the date of the wrongful act (improper construction) and the date of the plaintiffs’ injury (encountering the inaccessibility) are not the same.
24

No. 08-10630
The majority focuses on the policies underlying statutes of limitations, but it wholly ignores both the policies underlying the ADA and the consequences of its decision. Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). With respect to curb cuts—which is the focus of the plaintiffs’ complaint—Congress noted that “[t]he employment, transportation, and public accommodation sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets.” H.R. REP. NO. 101-485, at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 367. By cutting off a plaintiff’s ability to sue two years after the City completes the construction or alteration, the majority leaves many disabled people with no ability to vindicate their rights. In essence, the City can avoid all liability and maintain noncompliant sidewalks if it successfully avoids a lawsuit for two years after completing the construction or alteration. The City could then have what amount to “illegal” sidewalks in perpetuity. A newly disabled person, or a disabled person who just moves to the City, would have no recourse but to suffer through the ADA violation. This result runs directly counter to the ADA’s sweeping remedial purpose. See PGA Tour, Inc., 532 U.S. at 675.
Ruling that the cause of action accrues upon the completion of the construction places upon disabled people an affirmative duty to go out and find all noncompliant sidewalks just after construction or face having to live with sidewalks without curb cuts possibly forever (or at least until the City makes additional improvements or alterations to those sidewalks). As the court in Voices for Independence noted, “Defendants would have us place an affirmative burden on disabled persons such as the Plaintiffs to navigate and seek out defective curb cuts far and wide in order to file suit within two years of their installation. Such a result strikes this Court as unduly burdensome and
25

No. 08-10630
contrary to the remedial purposes of the statute.” 2007 WL 2905887, at *15. Such a duty simply perpetuates the conditions that Congress condemned nineteen years ago when it enacted the ADA. As Congress noted,
[H]istorically, 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. 42 U.S.C. § 12101(a)(2). There are certainly policy considerations that cut the other way. If the court measures the limitations period from the time that any potential plaintiff encounters the ADA violation (i.e., suffers a denial of access), then the City could be subject to liability many years after constructing the sidewalk. Indeed, there would likely be no shortage of plaintiffs seeking to redress the ADA violation, thereby mitigating the effect of any statute of limitations for all practical purposes. Two key facts, however, temper this concern. First, the City’s wrongful conduct causes legal injuries to disabled people every day.5 Of course, the statute of limitations might run as to any particular plaintiff who does not file suit within two years of encountering a noncompliant sidewalk. A statute of limitations should not, however, cut off a plaintiff’s ability to redress a new injury to that plaintiff, even if that new injury originated from prior wrongful conduct. That is, as I discuss above, wrongful conduct does not become actionable until a plaintiff suffers an injury based on that conduct. Thus, the City’s policy argument is less convincing because it is essentially asserting that
5 The majority’s discussion of the plaintiffs’ continuing violation argument is circular. The majority rejects the plaintiffs’ continuing violation theory largely based on its resolution of the plaintiffs’ accrual argument. But in rejecting the accrual argument, the majority necessarily assumes that the plaintiffs are not suffering injuries each time they encounter a prohibited denial of access. The text of the ADA and the standing issues I discuss above support neither contention. Regardless, given the disposition I advocate, the court need not decide whether the continuing violation doctrine applies in this instance.
26

No. 08-10630
if it successfully evades litigation for two years, it is exempt from complying with
the ADA altogether, even though disabled people continue to suffer injuries
based on the City’s wrongful conduct.
Second, the City can avoid all future liability by simply fixing the original
unlawful construction. The City is not liable forever; it is responsible only for
correcting the deficient construction or alteration.6 Precisely defining when the
injury occurs therefore answers, or at least outweighs, the majority’s main policy
concerns. The broad remedial goal of the ADA—the eradication of public
discrimination against disabled people—therefore supports a ruling that a
plaintiff suffers an injury when he or she actually encounters a prohibited denial
of access to a public entity’s services, programs, or activities.
6 In balancing the consequences of our decision, I recognize that one implication of my analysis is that under the reasoning of the rule I propose, it is possible that a city might be liable for money damages many years after improperly constructing non-ADA compliant facilities. This case does not present that question, however, as the plaintiffs conceded at oral argument that they are seeking only injunctive relief. The court therefore need not reach that issue.
Regardless, monetary damages under the ADA are likely less common than injunctive relief, as they are available only for intentional discrimination. Delano-Pyle v. Victoria County, 302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a private cause of action for violations of the ADA or the [Rehabilitation Act] may only recover compensatory damages upon a showing of intentional discrimination.”). It would require an extraordinary situation to find that a city intentionally discriminated against disabled people by failing to include curb cuts in the sidewalks. The purposes of monetary damages and injunctive relief in the ADA context are thus different: monetary damages compensate an individual plaintiff for a defendant’s prior intentional act of discrimination, whereas injunctive relief vindicates the rights of a disabled person stemming from an ongoing injury. See Texas v. Lesage, 528 U.S. 18, 22 (1999) (per curiam) (criticizing this court for failing to distinguish between a retrospective claim for damages and a forward-looking claim for injunctive relief). Additionally, although the Supreme Court recently held that a plaintiff can receive monetary damages under the ADA for conduct that violates the Fourteenth Amendment, it left open whether damages are available for Title II violations that do not violate the Constitution. See United States v. Georgia, 546 U.S. 151, 159 (2006). It might be that the imposition of monetary damages requires both intentional conduct and a violation of constitutional rights. Accordingly, the class of cases in which money damages will be available for ADA violations is likely quite small, tempering any concerns I might initially have had about a city’s ongoing fiscal liability.
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No. 08-10630
We must choose between two options, neither of which is ideal. Either we must give stronger credence to the policies behind statutes of limitations, thereby eschewing the broad goals of the ADA, or we must forego the City’s desire to strictly cut off its liability to allow disabled people to vindicate their rights. The majority chooses the former; the text of the ADA, the analysis of when a plaintiff actually suffers an injury, and the purposes behind the Act compel me to choose the latter.
III. This case presents us with a difficult choice. With immense respect for the majority’s position, I think that the better, legally correct, and more pragmatic answer is to allow a plaintiff to bring suit for injunctive relief within two years of his or her injury, that is, within two years of when the plaintiff was unable to access or was deterred from attempting to access a noncompliant sidewalk or other facility. The contrary result countenances a public entity’s decision to construct or alter a sidewalk without curb cuts, allowing this ADA violation to go uncorrected forever so long as no one brings suit within two years of the construction or alteration. Implicit in the majority’s decision is an assumption that, most of the time, a plaintiff will exist who can file suit within two years of the City’s completion of the construction or alteration. Although that may be true in many situations, it is not always the case. This fact undermines the majority’s conclusion, demonstrating the negative consequences stemming from the court’s ruling. Consider the following hypothetical: Suppose that a city is developing an area of town where no one lives. In the initial stages of the development, the city constructs sidewalks but mistakenly fails to include curb cuts. Two years and one month later, the city completes the development and people begin moving in. At that point, a disabled person would suffer an injury based upon his or her inability to access the sidewalks and navigate around the neighborhood. Given
28

No. 08-10630 that there was no one who could have asserted an ADA claim within two years of the completion of the construction—because a disabled person would not have standing until he or she moves into the development and actually suffers a denial of access—no one would ever be able to sue to seek redress for this clear ADA violation. Such a result does not square with the conception of an “injury” under Title II of the ADA or Congress’s goal in enacting this statute. We do not want to foreclose a lawsuit from an individual acting as a “private attorney general” to require the city to correct the ADA noncompliance. The city should not be “off the hook” for continued ADA compliance two years after completing the construction merely because there were no possible plaintiffs within that period. Moreover, the city can cut off its liability by simply curing the defect. Thus, carefully defining when the plaintiff suffers an injury for purposes of injunctive relief reconciles the problems inherent in the majority’s analysis.
Because the majority’s decision is inconsistent with the general rule of claim accrual, the conception of an injury under the text of the ADA for purposes of standing, and the broad goals of the Act, I respectfully dissent.
29

 
 General Docket United States Court of Appeals for the 5th Circuit

Court of Appeals Docket #: 08-10630 Nature of Suit: 3446 Amer w/Disabilities Act - Other Richard Frame, et al v. City of Arlington Appeal From: Northern District of Texas, Fort Worth Fee Status: fee paid

Docketed: 07/01/2008 Termed: 09/15/2011

Case Type Information: 1) Private Civil Federal 2) Private 3)

Originating Court Information:

District: 0539-4 : 4:05-CV-470

Originating Judge: Terry R. Means, U.S. District Judge

Date Filed: 07/22/2005

Date NOA Filed:

Date Rec'd COA:

06/17/2008

06/18/2008

Prior Cases: None

Current Cases: Lead
AIMS Additional 08-10630
Related 10-11254 11-10830

Member
08-10631
11-10830 08-10630

Start

End

07/01/2008

09/02/2011 09/21/2011

Panel Assignment: Panel: EGJ ECP LHS Date of Hearing: 04/01/2009

Date of Decision: 07/07/2009

Date Completed: 07/07/2009

RICHARD FRAME Plaintiff - Appellant
WENDELL DECKER Plaintiff - Appellant

Miguel M. de la O, Attorney Direct: 305-285-2000 Email: delao@dmmllaw.com Fax: 305-285-5555 [COR NTC Retained] de la O, Marko, Magolnick & Leyton 3001 S.W. 3rd Avenue Miami, FL 33129-0000
David Ferleger, Esq. Direct: 215-887-0123 Email: david@ferleger.com Fax: 215-887-0133 [COR LD NTC Retained] Suite 203 413 Johnson Street

Jenkintown, PA 19046-0000
Miguel M. de la O, Attorney Direct: 305-285-2000 [COR NTC Retained] (see above)

SCOTT UPDIKE Plaintiff - Appellant

Miguel M. de la O, Attorney Direct: 305-285-2000 [COR NTC Retained] (see above)

J N, by his next friend and mother Gabriela Castro Plaintiff - Appellant

Miguel M. de la O, Attorney Direct: 305-285-2000 [COR NTC Retained] (see above)

MARK HAMMAN Plaintiff - Appellant

David Ferleger, Esq. Direct: 215-887-0123 [COR LD NTC Retained] (see above)
Miguel M. de la O, Attorney Direct: 305-285-2000 [COR NTC Retained] (see above)

JOEY SALAS Plaintiff - Appellant
v.

David Ferleger, Esq. Direct: 215-887-0123 [COR LD NTC Retained] (see above)
Miguel M. de la O, Attorney Direct: 305-285-2000 [COR NTC Retained] (see above)

CITY OF ARLINGTON, A municipal Corporation Defendant - Appellee

Edwin Armstrong Price Voss, Jr., Esq. Direct: 214-747-6100 Email: evoss@bhlaw.net Fax: 214-747-6111 [COR LD NTC Retained] Brown & Hofmeister, L.L.P. Suite 800 740 E. Campbell Road Richardson, TX 75081-0000

Denise V. Wilkerson, Assistant City Attorney Direct: 817-459-6878 Email: denise.wilkerson@arlingtontx.gov

-----------------------------UNITED STATES OF AMERICA
Amicus Curiae
AMERICAN ASSOCIATION OF RETIRED PERSONS
Amicus Curiae
TEXAS MUNICIPAL LEAGUE Amicus Curiae
INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION
Amicus Curiae

Fax: 817-459-6897 [COR NTC Government] City Attorney's Office for the City of Arlington Suite 300 101 S. Mesquite Street Arlington, TX 76010-1117
Sasha M. Samberg-Champion, Esq. Direct: 202-307-0714 Email: sasha.samberg-champion@usdoj.gov [COR LD NTC Government] U.S. Department of Justice Appellate Section, Antitrust Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001
Jessica Dunsay Silver Direct: 202-514-2195 Email: jessica.d.silver@usdoj.gov Fax: 202-305-2197 [COR NTC Government] U.S. Department of Justice Civil Rights Div - Appellate Section P.O. Box 14403 Ben Franklin Station Washington, DC 20044-4403
Mary Ellen E. Signorille, Senior Attorney Direct: 202-434-2072 Email: msignorille@aarp.org Fax: 202-434-6424 [COR LD NTC Retained] American Association of Retired Persons 601 E Street, N.W. Washington, DC 20049-0000
Scott N. Houston, Esq., General Counsel Direct: 512-231-7400 Email: shouston@tml.org Fax: 512-231-7490 [COR LD NTC Retained] Texas Municipal League Suite 400 1821 Rutherford Lane Austin, TX 78754-0000
Scott N. Houston, Esq., General Counsel Direct: 512-231-7400 [COR LD NTC Retained] (see above)

CITY OF HUNTSVILLE,ALABAMA Amicus Curiae
CITY OF DALLAS Amicus Curiae

Devala Janardan Direct: 202-466-5424 Email: DJANARDAN@IMLA.ORG Fax: 202-785-0152 [COR LD NTC Retained] International Municipal Lawyers Association Suite 1440 7910 Woodmont Avenue Bethesda, MD 20814
David Jonathon Canupp, Esq. Direct: 256-535-1100 Email: djc@lanierford.com Fax: 256-533-9322 [COR LD NTC Retained] Lanier, Ford, Shaver & Payne, P.C. Suite 102 2101 W. Clinton Avenue Huntsville, AL 35805
George W. Royer, Jr., Esq. Direct: 256-535-1100 Email: gwr@LanierFord.com Fax: 256-533-9322 [COR NTC Retained] Lanier, Ford, Shaver & Payne, P.C. Suite 102 2101 W. Clinton Avenue Huntsville, AL 35805
Christopher John Caso, Esq., Assistant City Attorney Direct: 214-670-3508 Email: chris.caso@dallascityhall.com Fax: 214-670-0622 [COR LD NTC Government] City Attorney's Office for the City of Dallas Room 7DN 1500 Marilla Street Dallas, TX 75201-0000
Barbara Elaine Rosenberg, Esq. Direct: 214-671-9568 Email: barbara.rosenberg@dallascityhall.com Fax: 214-670-0622 [COR LD NTC Government] City Attorney's Office for the City of Dallas Room 7DN 1500 Marilla Street Dallas, TX 75201-0000

James Bickford Pinson, Assistant City Attorney Direct: 214-670-4844 Email: james.pinson@dallascityhall.com Fax: 214-670-0622 [NTC Government] City Attorney's Office for the City of Dallas Suite 7BN 1500 Marilla Street Dallas, TX 75201-0000

NATIONAL LEAGUE OF CITIES Amicus Curiae

Scott N. Houston, Esq., General Counsel Direct: 512-231-7400 [COR LD NTC Retained] (see above)

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

07/01/2008

Private civil federal case docketed. NOA filed by Appellant Richard

17 pg, 912.08 KB Frame, Appellant Wendell Decker, Appellant Scott Updike, Appellant JN,

Appellant Mark Hamman, Appellant Joey Salas. [08-10630] (RFP)

07/01/2008

The attorney JN for Scott Updike not participating in case. [08-10630] (RFP)

07/01/2008

Additional Appeal docketed. [08-10630, 08-10631] (RFP)

07/03/2008

Appearance form filed by Miguel M de la O for Appellant Joey Salas, Appellant Mark Hamman, Appellant JN, Appellant Scott Updike, Appellant Wendell Decker, Appellant Richard Frame in 08-10630, Miguel M de la O for Appellant Joey Salas, Appellant Mark Hamman, Appellant JN, Appellant Scott Updike, Appellant Wendell Decker, Appellant Richard Frame in 08-10631. [08-10630, 08-10631] ( No. of forms filed: 1) (GRM)

07/10/2008
07/23/2008 07/24/2008 07/25/2008 07/25/2008
3 pg, 16.01 KB
08/25/2008
09/15/2008
09/16/2008

Notice received on 7/3/08 from Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 0810630, Appellant JN in 08-10630, Appellant Mark Hamman in 08-10630, Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant JN in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631 that transcript is unnecessary (No Hearings). [08-10630, 08-10631] (MCS)
Appearance form filed by Denise V Wilkerson for Appellee Arlington, City of in 08-10630, Denise V Wilkerson for Appellee Arlington, City of in 08-10631. [08-10630, 08-10631] ( No. of forms filed: 1) (GRM)
Appearance form filed by Edwin Armstrong Price Voss for Appellee Arlington, City of in 08-10630, Edwin Armstrong Price Voss for Appellee Arlington, City of in 08-10631. [08-10630, 08-10631] ( No. of forms filed: 1) (GRM)
Notice received from District Court, ROA certified. Electronic Pleadings: Y TYPE of Exhibits: trial exhibits [08-10630, 08-10631] Certified ROA due ddl satisfied. (GRM)
Briefing notice issued. [08-10630, 08-10631] A/Pet's Brief due on 9/3/08 for Joey Salas in 08-10630, for Mark Hamman in 08-10630, for J N in 0810630, for Scott Updike in 08-10630, for Wendell Decker in 08-10630, for Richard Frame in 08-10630, for Joey Salas in 08-10631, for Mark Hamman in 08-10631, for J N in 08-10631, for Scott Updike in 08-10631, for Wendell Decker in 08-10631, for Richard Frame in 08-10631. (GRM)
Phone extension confirmed for Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 0810630, Appellant J N in 08-10630, Appellant Mark Hamman in 08-10630, Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant J N in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631 for filing appellant's brief. Extension granted to and including 9/18/08. [08-10630, 08-10631] A/Pet's Brief ddl updated to 9/18/08 for Joey Salas in 08-10630, for Mark Hamman in 0810630, for J N in 08-10630, for Scott Updike in 08-10630, for Wendell Decker in 08-10630, for Richard Frame in 08-10630, for Joey Salas in 0810631, for Mark Hamman in 08-10631, for J N in 08-10631, for Scott Updike in 08-10631, for Wendell Decker in 08-10631, for Richard Frame in 08-10631. (GRM)
Unopposed motion filed by Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 0810630, Appellant J N in 08-10630, Appellant Mark Hamman in 08-10630, Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant J N in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631 to extend time to file appellant(s) brief until 10/3/08 [6115773-1] Date of COS: 9/12/08 Sufficient [Y/N]: Y [0810630, 08-10631] (POK)
CLERK Order filed granting unopposed motion to extend time to file Appellant's Brief [6115773-1] A/Pet's Brief ddl updated to 10/3/08 for Joey

5 pg, 160.34 KB

Salas in 08-10630, in 08-10631 for Mark Hamman in 08-10630, in 0810631 for J N in 08-10630, in 08-10631 for Scott Updike in 08-10630, in 08-10631 for Wendell Decker in 08-10630, in 08-10631 for Richard Frame in 08-10630, in 08-10631 Copies to all counsel. [08-10630, 08-10631] (GRM)

10/03/2008
37 pg, 2.78 MB

Appellant's Brief filed by Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 08-10630, Appellant J N in 08-10630, Appellant Mark Hamman in 08-10630, Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant J N in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631. Disk Provided [Y/N]: Y Sufficient [Y/N]: Y [6129496-1] [08-10630, 08-10631] A/Pet's Brief ddl satisfied. E/Res's Brief due on 11/3/08 for Arlington, City of in 08-10630, for Arlington, City of in 08-10631. (GRM)

10/03/2008
93 pg, 2.51 MB

Record excerpts filed by Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 08-10630, Appellant J N in 08-10630, Appellant Mark Hamman in 08-10630, Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant J N in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631. Disk Provided [Y/N]: Y Sufficient [Y/N]: Y [08-10630, 08-10631] (GRM)

10/24/2008

Phone extension confirmed for Appellee Arlington, City of in 08-10630, Appellee Arlington, City of in 08-10631 for filing appellee's brief. Extension granted to and including 11/14/08. [08-10630, 08-10631] E/Res's Brief ddl updated to 11/14/08 for Arlington, City of in 08-10630, for Arlington, City of in 08-10631. (GRM)

11/17/2008

71 pg, 200.87 KB

Appellee's Brief filed by Appellee Arlington, City of in 08-10630, Appellee Arlington, City of in 08-10631. Disk Provided [Y/N]: Y Sufficient [Y/N]: y [6159841-1] [08-10630, 08-10631] E/Res's Brief ddl satisfied. Reply Brief due on 12/1/08 for Joey Salas in 08-10630, for Mark Hamman in 08-10630, for J N in 08-10630, for Scott Updike in 08-10630, for Wendell Decker in 08-10630, for Richard Frame in 08-10630, for Joey Salas in 08-10631, for Mark Hamman in 08-10631, for J N in 08-10631, for Scott Updike in 08-10631, for Wendell Decker in 08-10631, for Richard Frame in 08-10631. (RSM)

11/17/2008
41 pg, 1.55 MB

Record excerpts filed by Appellee Arlington, City of in 08-10630, Appellee Arlington, City of in 08-10631. Sufficient [Y/N]: Y [08-10630, 08-10631] (RSM)

11/17/2008

Record on appeal requested from Edwin Armstrong Price Voss for Appellee Arlington, City of in 08-10630. [08-10630, 08-10631] ROA BEING SENT UNDER SEPARATE COVER. (RSM)

11/17/2008

Record on appeal filed. Vol(s) of Electronic Pleadings: 5 Exhibits: 1 env (ALWAYS SEND WITH ROA). [08-10630, 08-10631] (SDH)

11/24/2008

Phone extension confirmed for Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 0810630, Appellant J N in 08-10630, Appellant Mark Hamman in 08-10630,

Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant J N in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631 for filing reply brief. Extension granted to and including 12/8/08. [08-10630, 08-10631] Reply Brief ddl updated to 12/8/08 for Joey Salas in 08-10630, for Mark Hamman in 08-10630, for J N in 08-10630, for Scott Updike in 08-10630, for Wendell Decker in 0810630, for Richard Frame in 08-10630, for Joey Salas in 08-10631, for Mark Hamman in 08-10631, for J N in 08-10631, for Scott Updike in 0810631, for Wendell Decker in 08-10631, for Richard Frame in 08-10631. (GLP)

12/09/2008

19 pg, 104.14 KB

Reply brief filed by Appellant Richard Frame in 08-10630, Appellant Wendell Decker in 08-10630, Appellant Scott Updike in 08-10630, Appellant J N in 08-10630, Appellant Mark Hamman in 08-10630, Appellant Joey Salas in 08-10630, Appellant Richard Frame in 08-10631, Appellant Wendell Decker in 08-10631, Appellant Scott Updike in 0810631, Appellant J N in 08-10631, Appellant Mark Hamman in 08-10631, Appellant Joey Salas in 08-10631. Disk Provided [Y/N]: A Sufficient [Y/N]: Y [6174504-1] [08-10630, 08-10631] Reply Brief ddl satisfied. , (GLP)

02/09/2009
1 pg, 9.26 KB

Case tentatively calendared for oral argument Week of: 03/30/09. [0810630, 08-10631] (GAM)

02/25/2009

CASE CALENDARED for oral argument on 04/01/2009 in New Orleans in the En Banc Courtroom. [08-10630, 08-10631] (SME)

03/30/2009

SUPPLEMENTAL AUTHORITIES (FRAP 28j) FILED by Appellee City

1 pg, 69.48 KB of Arlington in 08-10630, 08-10631 [08-10630, 08-10631] (SME)

04/01/2009

ORAL ARGUMENT HEARD before Judges Jolly, Prado, Southwick. Arguing Person Information Updated for: Edwin Armstrong Price Voss, Jr. arguing for Appellee City of Arlington; Arguing Person Information Updated for: Miguel M de la O arguing for Appellants Richard Frame, Wendell Decker, Scott Updike, J N, Mark Hamman, and Joey Salas [0810630, 08-10631] (SME)

04/23/2009

10 pg, 682.88 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28j) FILED by Appellants Mr. Wendell Decker, Mr. Richard Frame, Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 08-10630, 08-10631 [08-10630, 0810631] (SME)

04/23/2009
1 pg, 67.03 KB

RESPONSE/OPPOSITION filed by City of Arlington in 08-10630, 0810631 [6263312-1] to the 28j letter filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630,08-10631 [6263305-2] Date of Service: 04/23/2009 [08-10630, 08-10631] (SME)

07/07/2009
1 pg, 51.44 KB

PUBLISHED OPINION FILED. [08-10630 Vacated and Remanded, 0810631 Vacated and Remanded.] Judge: EGJ , Judge: ECP , Judge: LHS. Mandate pull date is 07/28/2009 [08-10630, 08-10631] (ARC)

07/07/2009

JUDGMENT ENTERED AND FILED. [08-10630, 08-10631] (ARC)

1 pg, 44.17 KB

07/07/2009

COSTS TAXED AGAINST: each party bear its own costs on appeal. [0810630, 08-10631] (ARC)

07/20/2009
3 pg, 93.74 KB

MOTION filed by Appellants Mr. Wendell Decker, Mr. Richard Frame, Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 0810630, 08-10631 to extend the time to file a rehearing until 07/23/2009 [6325814-2]. Date of Service: 07/20/2009 [08-10630, 08-10631] (KSW)

07/20/2009
1 pg, 84.75 KB

CLERK ORDER granting motion to extend the time to file a petition for rehearing filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman [6325814-2] in 08-10630, 08-10631 until 07/23/2009 at 05:00 pm. [0810630, 08-10631] (RSM)

07/20/2009
53 pg, 2.41 MB

PETITION filed by Appellee City of Arlington in 08-10630, 08-10631 for rehearing en banc [6328191-2] Number of Copies:20.. Date of Service: 07/17/2009. [08-10630, 08-10631] (SDH)

07/22/2009

20 pg, 110.41 KB

PETITION filed by Appellants Mr. Wendell Decker, Mr. Richard Frame, Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 0810630, 08-10631 for rehearing en banc [6327845-2] Number of Copies:21. Mandate pull date canceled.. Date of Service: 07/21/2009. [08-10630, 0810631] (GRM)

07/27/2009

RESPONSE REQUESTED. The Court has requested a response to the petition for rehearing en banc filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630 [6327845-2]Response/Opposition due on 08/06/2009. [08-10630, 08-10631] (MBC)

07/27/2009
1 pg, 53.86 KB

LETTER OF ADVISEMENT. Reason: City of Arlington to respond to Frame's petition for rehearing en banc by August 6, 2009. [08-10630, 0810631] (MBC)

07/27/2009
5 pg, 151.35 KB

MOTION by Not Partys Texas Municipal League and International Municipal Lawyers Association in 08-10630 and Not Partys Texas Municipal League and International Municipal Lawyers Association in 0810631 to file amicus briefi in support of appellees petition for rehearing en banc (brief attached) [6331230-2]. Date of Service: 07/24/2009 [08-10630, 08-10631] (MBC)

08/03/2009
28 pg, 77.13 KB

AMICUS CURIAE BRIEF FILED by International Municipal Lawyers Association and Texas Municipal League in 08-10630, 08-10631. Consent is Not Necessary a Motion has been Granted. # of Copies Provided: 6 [0810630, 08-10631] (GRM)

08/04/2009

COURT ORDER granting motion to file amicus brief [6331230-2] filed by

2 pg, 113.11 KB Texas Municipal League and International Municipal Lawyers Association in 08-10630 and in 08-10631 Judge(s): EGJ. [08-10630, 08-10631] (GRM)

08/06/2009
22 pg, 851.4 KB

RESPONSE/OPPOSITION filed by City of Arlington in 08-10630, 0810631 [6339188-1] to the petition for rehearing en banc filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630,08-10631 [63278452]Response/Opposition deadline satisfied. Date of Service: 08/05/2009 [08-10630, 08-10631] (MCS)

08/18/2009

RESPONSE REQUESTED. The Court has requested a response to the petition for rehearing en banc filed by Appellee City of Arlington in 0810630 [6328191-2]Response/Opposition due on 08/28/2009. [08-10630, 08-10631] (MBC)

08/18/2009
1 pg, 53.53 KB

LETTER OF ADVISEMENT. Reason: Appellants to respond to CIty of Arlington's petition for rehearing en banc by August 28, 2009. [08-10630, 08-10631] (MBC)

08/28/2009

21 pg, 110.93 KB

RESPONSE/OPPOSITION filed by Mr. Wendell Decker, Mr. Richard Frame, Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 08-10630, 08-10631 [6355090-1] to the petition for rehearing en banc filed by Appellee City of Arlington in 08-10630,08-10631 [63281912]Response/Opposition deadline satisfied. Date of Service: 08/27/2009 [08-10630, 08-10631] (MBC)

02/04/2010
8 pg, 467.42 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28j) FILED by Appellee City of Arlington in support of petition for rehearing en banc in 08-10630, 0810631 [08-10630, 08-10631] (MBC)

03/03/2010

12 pg, 529.95 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28j) FILED by Appellants Mr. Wendell Decker, Mr. Richard Frame, Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 08-10630, 08-10631 Date of Service: 03/02/2010 [08-10630, 08-10631] (GRM)

03/03/2010
2 pg, 60.66 KB

LETTER filed by Appellee City of Arlington in 08-10630, 08-10631 referencing 28j letter filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630,08-10631 [6480814-2]. Date of Service: 03/03/2010 via US mail - Attorney for Appellant: de la O; Attorney for Appellee: Wilkerson; email - Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (Edwin Armstrong Price Voss Jr.)

08/23/2010

OPINION WITHDRAWN. [6317028-2] [08-10630, 08-10631] (JMA)

08/23/2010

COURT ORDER mooting petition for rehearing en banc filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman [6327845-2], mooting petition for rehearing en banc filed by Appellee City of Arlington [6328191-2]; Treating the Petitions for Rehearing En Banc as Petitions for Panel rehearings, the Petitions for Panel Rehearings are granted. (Prior Opinion issued 7/7/09 withdrawn and substituted) (See opinion issued 8/23/09) [6610830-2]; reopening case [6610830-2] [08-10630, 08-10631] (JMA)

08/23/2010

PUBLISHED OPINION FILED. [08-10630 Vacated and Remanded 08-

32 pg, 278.42 KB 10631 Vacated and Remanded] Judge: EGJ , Judge: ECP , Judge: LHS Mandate pull date is 09/13/2010 [08-10630, 08-10631] (JMA)

08/23/2010

JUDGMENT ENTERED AND FILED. [08-10630, 08-10631] (JMA)

2 pg, 63.43 KB

08/23/2010

COSTS TAXED: each party to bear its own costs on appeal [08-10630, 0810631] (JMA)

09/07/2010

PETITION filed by Appellants Mr. Wendell Decker, Mr. Richard Frame,

81 pg, 620.78 KB

Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 0810630, 08-10631 for rehearing en banc [6622024-2]. Date of Service: 09/07/2010 via email - Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] REVIEWED AND/OR EDITED. PETITION for rehearing en banc [6622024-2] Mandate pull date canceled.. Paper Copies of Rehearing due on 09/13/2010 for Appellant Wendell Decker, Appellant Richard Frame, Appellant Mark Hamman, Appellant J N, Appellant Joey Salas and Appellant Scott Updike.. Date of Service: 09/07/2010 [08-10630, 08-10631] (Miguel M. de la O )

09/13/2010

Paper copies of petition for rehearing en banc filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630, 08-10631 received. Paper copies match electronic version of document? Yes. # of Copies Provided: 20. Paper Copies of Rehearing due deadline satisfied. [08-10630, 08-10631] (MKC)

09/21/2010
1 pg, 71.12 KB

COURT DIRECTIVE ISSUED requesting a response to the petition for rehearing en banc. Response/Opposition due on 10/01/2010. [08-10630, 08-10631] (KSW)

09/24/2010
27 pg, 84.18 KB

Unopposed MOTION by United States of America to file amicus brief in support of petition for rehearing en banc [6635525-2] Date of service: 09/24/2010 via email - Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] REVIEWED AND/OR EDITED. UNOPPOSED MOTION by Amicus Curiae USA in 08-10630 and Amicus Curiae USA in 08-10631 to file amicus brief in support of petition for rehearing en banc [6635525-2] [08-10630, 08-10631 (Dirk Phillips )

09/24/2010

APPEARANCE FORM FILED by Attorney(s) Dirk Christian Phillips for party(s) Amicus Curiae USA, in case 08-10631 Attorney(s) Dirk Christian Phillips for party(s) Amicus Curiae USA, in case 08-10630 [08-10630, 0810631] (GRM)

09/29/2010
23 pg, 73.61 KB

RESPONSE/OPPOSITION filed by City of Arlington in 08-10630, 0810631 [6638583-1] to the petition for rehearing en banc filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630, 08-10631 [66220242] Date of Service: 09/29/2010 via email - Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson; Attorney for Not Party: Phillips. [08-10630, 08-10631] (Edwin Armstrong Price Voss Jr.)

10/01/2010

COURT ORDER granting motion to file amicus brief [6635525-2] filed by

2 pg, 120.27 KB USA in 08-10631 Judge(s): EGJ. [08-10630, 08-10631] (GRM)

10/01/2010

24 pg, 205.65 KB

AMICUS CURIAE BRIEF FILED by USA in 08-10630, 08-10631. Consent is Not Necessary a Motion has been Granted. # of Copies Provided: 0 Paper Copies of Brief due on 10/06/2010 for Amicus Curiae United States of America. [08-10630, 08-10631] (GRM)

10/05/2010
1 pg, 89.51 KB

Paper copies of amicus brief filed by Amicus Curiae USA in 08-10630, 0810631 received. Paper copies match electronic version of document? Yes They require: not enough copies received. Only 7 copies received need 14 more. # of Copies Provided: 7. Paper Copies of Brief due deadline

satisfied. Sufficient Paper Copies of Brief due on 10/12/2010 for Amicus Curiae United States of America [08-10630, 08-10631] (GRM)

10/07/2010

Paper copies of Brief [6643621-2] received as sufficient. # of Copies Provided: 14 Sufficient Paper Copies of Brief due deadline satisfied. [0810630, 08-10631] (GRM)

10/07/2010

APPEARANCE FORM FILED by Attorney(s) Jessica Dunsay Silver for party(s) Amicus Curiae USA, in case 08-10631 Attorney(s) Jessica Dunsay Silver for party(s) Amicus Curiae USA, in case 08-10630 [08-10630, 0810631] (GRM)

10/19/2010
6 pg, 253.7 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28j) IN SUPPORT OF REHEARING EN BANC, FILED by Appellee City of Arlington in 0810630, 08-10631 Date of Service: 10/19/2010 via email - Attorney for Amicus Curiae(s): Phillips, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] REVIEWED AND/OR EDITED. Date of Service: 10/19/2010 [08-10630, 08-10631] (Edwin Armstrong Price Voss Jr.)

01/26/2011
2 pg, 73.7 KB

COURT ORDER granting petition for rehearing en banc filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman [6622024-2] A/Pet Supplemental Brief due on 02/28/2011 for Appellant Wendell Decker, Appellant Richard Frame, Appellant Mark Hamman, Appellant J N, Appellant Joey Salas and Appellant Scott Updike. E/Res Supplemental Brief due on 04/01/2011 for Appellee City of Arlington.. Miscellaneous due on 04/01/2011 for Appellee City of Arlington, and Miscellaneous due on 02/28/2011 for Appellant Wendell Decker, Appellant Richard Frame, Appellant Mark Hamman, Appellant J N, Appellant Joey Salas and Appellant Scott Updike to send in 20 copies of their opening briefs and record excerpts to be sent to the en banc court when the en banc calendar issued; reopening case [6726105-2] Judge(s): EB. [08-10630, 08-10631] (GAM)

01/27/2011

CASE TENTATIVELY calendared for EN BANC oral argument for the week of 05/23/2011. [08-10630, 08-10631] (GAM)

02/28/2011

24 pg, 213.49 KB

APPELLANT'S SUPPLEMENTAL BRIEF FILED by Mr. Wendell Decker, Mr. Richard Frame, Mr. Mark Hamman, Mr. J N, Mr. Joey Salas and Mr. Scott Updike in 08-10630, 08-10631 Date of service: 02/28/2011 via email - Attorney for Amicus Curiae(s): Phillips, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] REVIEWED AND/OR EDITED. . # of Copies Provided: 0 Paper Copies of Brief due on 03/07/2011 for Appellant Wendell Decker, Appellant Richard Frame, Appellant Mark Hamman, Appellant J N, Appellant Joey Salas and Appellant Scott Updike. [08-10630, 08-10631] (Miguel M. de la O )

03/03/2011

Paper copies of appellant supplement brief filed by Appellants Mr. Joey Salas, Mr. Scott Updike, Mr. J N, Mr. Wendell Decker, Mr. Richard Frame and Mr. Mark Hamman in 08-10630, 08-10631 received. Paper copies match electronic version of document? Yes # of Copies Provided: 20. Paper Copies of Brief due deadline satisfied. [08-10630, 08-10631] (NFD)

03/07/2011

26 pg, 167.12 KB

AMICUS CURIAE BRIEF FILED by United States. Date of service: 03/07/2011 via email - Attorney for Amicus Curiae(s): Phillips, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] REVIEWED AND/OR EDITED. AMICUS CURIAE BRIEF FILED Consent is Not Necessary as Amicus is a Government Entity. # of Copies Provided: 0 Paper Copies of Brief due on 03/16/2011 for Amicus Curiae United States of America. [08-10630, 0810631] (Dirk Phillips )

03/07/2011
1 pg, 83.78 KB

Attorney Mary Ellen Signorille for Amicus Curiae AARP is advised to resubmit appearance form. Reason: No signature on appearance form. [0810630, 08-10631] (MAS)

03/11/2011

DOCUMENT RECEIVED - NO ACTION TAKEN. No action will be

27 pg, 210.55 KB taken at this time on the Brief of Amicus filed by AARP, because a Motion for leave to file amicus brief is neededed. [08-10630, 08-10631] (NFD)

03/11/2011

31 pg, 144.42 KB

UNOPPOSED MOTION by Mary Ellen Signorille to file amicus brief [6760412-2] Date of service: 03/11/2011 via email - Attorney for Amicus Curiae(s): Phillips, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (Mary Ellen E Signorille )

03/14/2011

Paper copies of amicus brief received. Paper copies match electronic version of document? Yes. # of Copies Provided: 20. Paper Copies of Brief due deadline satisfied. [08-10630, 08-10631] (MKC)

03/18/2011

CASE CAPTION updated. Amicus Curiae AARP in 08-10630 and Amicus Curiae AARP in 08-10631 added to case. Reason: motion to file amicus brief in support of appellant's supplemental brief en banc granted. [0810630, 08-10631] (MKC)

03/18/2011
2 pg, 145.94 KB

COURT ORDER granting unoppsoed motion to file amicus brief on rehearing en banc in support of appellants [6760412-2] filed by AARP in 08-10630 Judge(s): EHJ. [08-10630, 08-10631] (MKC)

03/18/2011

27 pg, 225.54 KB

AMICUS CURIAE BRIEF FILED by AARP in 08-10630. Consent is Not Necessary a Motion has been Granted. # of Copies Provided: 0 Paper Copies of Brief due on 03/25/2011 for Amicus Curiae AARP. [08-10630, 08-10631] (MKC)

04/01/2011

58 pg, 636.83 KB

APPELLEE'S SUPPLEMENTAL BRIEF FILED by City of Arlington in 08-10630, 08-10631 Date of service: April 1, 2011 via email - Attorney for Amicus Curiae(s): Phillips, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] REVIEWED AND/OR EDITED. . # of Copies Provided: 0 E/Res's Supplemental Brief deadline satisfied. Paper Copies of Brief due on 04/11/2011 for Appellee City of Arlington. [08-10630, 08-10631] (Edwin Armstrong Price Voss Jr.)

04/01/2011

Paper copies of appellee supplement brief filed by Appellee City of Arlington in 08-10630, 08-10631 received. Paper copies match electronic version of document? Yes # of Copies Provided: 20. Paper Copies of Brief due deadline satisfied. [08-10630, 08-10631] (NFD)

04/04/2011

Attorney James Pinson for Amicus Curiea City of Dallas is advised to

1 pg, 85.17 KB resubmit appearance form. Reason: Multiple forms attached. Each attorney must file his/her own form separately. [08-10630, 08-10631] (MAS)

04/04/2011

Paper copies of amicus brief filed by Amicus Curiae AARP in 08-10630, 08-10631 received. Paper copies match electronic version of document? Yes They require: need appearance form from Ms. Signorille # of Copies Provided: 20. Paper Copies of Brief due deadline satisfied.. Sufficient Paper Copies of Brief due on 04/08/2011 for Amicus Curiae AARP [0810630, 08-10631] (NFD)

04/05/2011

CASE CALENDARED for En Banc rehearing on 05/24/2011 in New Orleans in the En Banc Courtroom - 9:00 AM Session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars. [08-10630, 08-10631] (PFT)

04/06/2011

48 pg, 250.29 KB

MOTION by City of Huntsville, Alabama and International Municipal Lawyers Association to file amicus brief [6782225-2] Date of service: 04/06/2011 via email - Attorney for Amicus Curiae(s): Phillips, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (David Jonathon Canupp )

04/07/2011

36 pg, 702.48 KB

UNOPPOSED MOTION by City of Dallas, Texas Municipal League and National League of Cities to file amicus brief [6783283-2] Date of service: 04/07/2011 via email - Attorney for Amicus Curiae(s): Phillips, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (Barbara Elaine Rosenberg )

04/12/2011

APPEARANCE FORM FILED by Attorney Mary Ellen E Signorille for Amicus Curiae AARP in 08-10630 [08-10630, 08-10631] (NFD)

04/12/2011

Paper copies of Brief [6780969-2] received as sufficient. Sufficient Paper Copies of Brief due deadline satisfied. [08-10630, 08-10631] (NFD)

04/15/2011

CASE CAPTION updated. Amicus Curiaes City of Huntsville,Alabama, City of Dallas and National League of Cities in 08-10630 and Amicus Curiaes City of Huntsville,Alabama, City of Dallas and National League of Cities in 08-10631 added to case. [08-10630, 08-10631] (NFD)

04/15/2011
5 pg, 186.18 KB

COURT ORDER - motion of City of Huntsville, Alabama and International Municipal Lawyers Association to file amicus brief is GRANTED. IT IS FURTHER ORDERED - the unopposed motion of City of Dallas, Texas Municipal League and National League of Cities to file amicus brief is GRANTED. [6783283-2], [6782225-2] Judge(s): EHJ. [0810630, 08-10631] (NFD)

04/15/2011

44 pg, 286.81 KB

AMICUS CURIAE BRIEF FILED by City of Huntsville,Alabama and International Municipal Lawyers Association in 08-10630, 08-10631. Consent is Not Necessary a Motion has been Granted. # of Copies Provided: 0 Paper Copies of Brief due on 04/20/2011 for Amicus Curiae City of Huntsville,Alabama and Amicus Curiae International Municipal Lawyers Association. [08-10630, 08-10631] (NFD)

04/15/2011

AMICUS CURIAE BRIEF FILED by City of Dallas, National League of

34 pg, 532.16 KB Cities and Texas Municipal League in 08-10630, 08-10631. Consent is Not

04/15/2011 04/15/2011 04/15/2011 04/15/2011
04/18/2011
04/18/2011
04/25/2011 04/25/2011 04/27/2011
05/05/2011
1 pg, 84.2 KB
05/10/2011
4 pg, 12.31 KB

Necessary a Motion has been Granted. # of Copies Provided: 0 Paper Copies of Brief due on 04/20/2011 for Amicus Curiae City of Dallas, Amicus Curiae National League of Cities and Amicus Curiae Texas Municipal League. [08-10630, 08-10631] (NFD)
APPEARANCE FORM FILED by Attorney Barbara Elaine Rosenberg for Amicus Curiae City of Dallas in 08-10630 [08-10630, 08-10631] (NFD)
APPEARANCE FORM FILED by Attorney Christopher John Caso for Amicus Curiae City of Dallas in 08-10630 [08-10630, 08-10631] (NFD)
Attorney Scott Houston added as counsel of record for Amicus Curiae Texas Municipal League in 08-10630 and Amicus Curiae Texas Municipal League in 08-10631 [08-10630, 08-10631] (NFD)
Attorney Devala Janardan added as counsel of record for Amicus Curiae International Municipal Lawyers Association in 08-10630 and Amicus Curiae International Municipal Lawyers Association in 08-10631 [0810630, 08-10631] (NFD)
Paper copies of amicus brief filed by Amici Curiae International Municipal Lawyers Association and City of Huntsville,Alabama in 08-10630, 0810631 received. Paper copies match electronic version of document? Yes # of Copies Provided: 20. Paper Copies of Brief due deadline satisfied. [0810630, 08-10631] (NFD)
Paper copies of amicus brief filed by Amici Curiae Texas Municipal League, National League of Cities and City of Dallas in 08-10630, 0810631 received. Paper copies match electronic version of document? Yes # of Copies Provided: 20. Paper Copies of Brief due deadline satisfied. [0810630, 08-10631] (NFD)
APPEARANCE FORM FILED by Attorney David Jonathon Canupp for Amicus Curiae City of Huntsville,Alabama in 08-10630 [08-10630, 0810631] (NFD)
APPEARANCE FORM FILED by Attorney George W. Royer Jr. for Amicus Curiae City of Huntsville,Alabama in 08-10630 [08-10630, 0810631] (NFD)
APPEARANCE FORM FILED by Attorney Scott N Houston for Amicus Curiae National League of Cities in 08-10630, for Amicus Curiae Texas Municipal League in 08-10630, for Amicus Curiae International Municipal Lawyers Association, in case 08-10630 [08-10630, 08-10631] (NFD)
Attorney Mr. Devala Janardan for Amicus Curiae International Municipal Lawyers Association in 08-10630 is advised to resubmit appearance form. Failed to have an original certificate of good standing issued with in 30 days.[08-10630, 08-10631] (MAS)
UNOPPOSED MOTION filed by Amicus Curiae USA in 08-10630, 0810631 to participate in oral argument [6808738-2]. Date of service: 05/10/2011 via email - Attorney for Amicus Curiae(s): Canupp, Caso, Houston, Janardan, Phillips, Pinson, Rosenberg, Royer, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (Jessica Dunsay Silver )

05/10/2011
1 pg, 17.01 KB

LETTER filed by Amicus Curiae USA in 08-10630, 08-10631 To request the removal of Dirk C. Phillips from the docket. Date of Service: 05/10/2011 via email - Attorney for Amicus Curiae(s): Canupp, Caso, Houston, Janardan, Phillips, Pinson, Rosenberg, Royer, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (Dirk Phillips )

05/10/2011
1 pg, 20.7 KB

ATTORNEY NOT PARTICIPATING. Dirk Phillips is designated as inactive in this case. Reason:no longer involved in appeal. [08-10630, 0810631] (NFD)

05/12/2011
2 pg, 101.67 KB

COURT ORDER granting the unopposed motion to participate in oral argument sharing 15 minutes of the 30 minutes allotted to appellants filed by Amicus Curiae USA [6808738-2] Judge(s): EHJ. [08-10630, 08-10631] (PFT)

05/12/2011

APPEARANCE FORM FILED by Attorney(s) Samuel R. Bagenstos for party(s) Amicus Curiae USA, in case 08-10631 Attorney(s) Samuel R. Bagenstos for party(s) Amicus Curiae USA, in case 08-10630 [08-10630, 08-10631] (NFD)

05/18/2011

APPEARANCE FORM FILED by Attorney Devala Janardan for Amicus Curiae International Municipal Lawyers Association in 08-10630 Miscellaneous deadline satisfied [08-10630, 08-10631] (NFD)

05/24/2011

EN BANC ORAL ARGUMENT HEARD before Judges Jones, King, Jolly, Davis, Smith, Garza, Benavides, Stewart, Dennis, Clement, Prado, Owen, Elrod, Southwick, Haynes. Arguing Person Information Updated for: Samuel R. Bagenstos arguing for Amicus Curiae United States of America; Arguing Person Information Updated for: Edwin Armstrong Price Voss, Jr. arguing for Appellee City of Arlington; Arguing Person Information Updated for: Miguel M. de la O arguing for Appellants Richard Frame, Wendell Decker, Scott Updike, J N, Mark Hamman, and Joey Salas; Arguing Person Information Updated for: Samuel R. Bagenstos arguing for Amicus Curiae United States of America; Arguing Person Information Updated for: Edwin Armstrong Price Voss, Jr. arguing for Appellee City of Arlington; Arguing Person Information Updated for: Miguel M. de la O arguing for Appellants Richard Frame, Wendell Decker, Scott Updike, J N, Mark Hamman, and Joey Salas [08-10630, 08-10631] (PFT)

05/31/2011

10 pg, 733.21 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28j) FILED by Appellee City of Arlington in 08-10630, 08-10631 Date of Service: 05/31/2011 via US mail - Attorney for Amicus Curiae(s): Bagenstos, Janardan; email Attorney for Amicus Curiae(s): Canupp, Caso, Houston, Pinson, Rosenberg, Royer, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellee(s): Voss, Wilkerson [08-10630, 08-10631] (Edwin Armstrong Price Voss Jr.)

06/17/2011

93 pg, 343.06 KB

LETTER filed by Amicus Curiae USA in 08-10630, 08-10631 To address constitutional questions raised in oral argument. Date of Service: 06/17/2011 via email - Attorney for Amici Curiae: Bagenstos, Canupp, Caso, Houston, Pinson, Rosenberg, Royer, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellees: Voss, Wilkerson; US mail Attorney for Amicus Curiae: Janardan [08-10630, 08-10631] (Samuel R. Bagenstos )

06/21/2011
2 pg, 36.15 KB

LETTER filed by Appellee City of Arlington in 08-10630, 08-10631 referencing letter filed by Amicus Curiae USA in 08-10630, 08-10631 [6837998-2]. Date of Service: 06/21/2011 via email - Attorney for Amici Curiae: Bagenstos, Canupp, Caso, Houston, Pinson, Rosenberg, Royer, Signorille, Silver; Attorney for Appellant: de la O; Attorney for Appellees: Voss, Wilkerson; US mail - Attorney for Amicus Curiae: Janardan [0810630, 08-10631] (Edwin Armstrong Price Voss Jr.)

07/28/2011

APPEARANCE FORM FILED by Attorney(s) David Ferleger for party(s) Appellant Scott Updike, Appellant Richard Frame Appellant J N, Appellant Joey Salas .Appellant Mark Hamman , Appellant Wendell Decker, in case 08-10630, 08-10631 [08-10630, 08-10631] (NFD)

08/16/2011

APPEARANCE FORM FILED by Attorney(s) Sasha M. SambergChampion for party(s) Amicus Curiae USA, in case 08-10631 Attorney(s) Sasha M. Samberg-Champion for party(s) Amicus Curiae USA, in case 0810630 [08-10630, 08-10631] (NFD)

08/16/2011
1 pg, 21.45 KB

LETTER filed by Amicus Curiae USA in 08-10630, 08-10631 Letter Informing Court of Substitution of Lead Counsel. Date of Service: 08/16/2011 via email - Attorney for Amici Curiae: Bagenstos, Canupp, Caso, Houston, Pinson, Rosenberg, Royer, Samberg-Champion, Signorille, Silver; Attorney for Appellants: Ferleger, de la O; Attorney for Appellees: Voss, Wilkerson; US mail - Attorney for Amicus Curiae: Janardan [0810630, 08-10631] (Sasha M. Samberg-Champion )

08/17/2011
1 pg, 21.82 KB

ATTORNEY NOT PARTICIPATING. Samuel R. Bagenstos is designated as inactive in this case. Reason:no longer involved in appeal. [08-10630, 08-10631] (NFD)

09/15/2011

63 pg, 621.83 KB

PUBLISHED OPINION FILED. [08-10630 Vacated & Remanded 0810631 Vacated & Remanded ] Judge: FPB , Judge: ECP , Judge: EGJ, joined by EHJ, JES, EMG, EBC, PRO & JWE dissents in part and concurs in part. Mandate pull date is 10/06/2011 [08-10630, 08-10631] (RMF)

09/15/2011

JUDGMENT ENTERED AND FILED. [08-10630, 08-10631] (RMF)

2 pg, 72.47 KB

09/15/2011

COSTS TAXED AGAINST: defendant-appellee [08-10630, 08-10631] (RMF)

09/29/2011
10 pg, 27.78 KB

UNOPPOSED MOTION filed by Appellee City of Arlington in 08-10630, 08-10631 to stay issuance of the mandate [6915420-2]. Date of service: 09/29/2011 via email - Attorney for Amici Curiae: Canupp, Caso, Houston, Pinson, Rosenberg, Royer, Samberg-Champion, Signorille, Silver; Attorney for Appellants: Ferleger, de la O; Attorney for Appellees: Voss, Wilkerson; US mail - Attorney for Amicus Curiae: Janardan [08-10630, 08-10631] (Edwin Armstrong Price Voss Jr.)

10/03/2011
2 pg, 158.7 KB

COURT ORDER denying motion to stay issuance of the mandate filed by Appellee City of Arlington [6915420-2] Judge(s): FPB. [08-10630, 0810631] (MKC)

10/07/2011

MANDATE ISSUED. Mandate pull date satisfied. [08-10630, 08-10631]

2 pg, 88.41 KB (NFD)

12/19/2011
1 pg, 42.25 KB

SUPREME COURT NOTICE that petition for writ of certiorari [69759892] was filed by Appellee City of Arlington in 08-10630, 08-10631 on 12/14/2011. Supreme Court Number: 11-746. [08-10630, 08-10631] (CAV)

02/22/2012
2 pg, 107.69 KB

SUPREME COURT ORDER received denying petition for writ of certiorari filed by Appellee City of Arlington in 08-10630, 08-10631 on 02/21/2012. [7021222-1] [08-10630, 08-10631] (LGL)

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 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

F I L E D

No. 08-10630

September 15, 2011

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).

Case: 08-10630 Document: 00511603419 Page: 2 Date Filed: 09/15/2011
No. 08-10630 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).
2

Case: 08-10630 Document: 00511603419 Page: 3 Date Filed: 09/15/2011
No. 08-10630 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-oflimitations 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).
3

Case: 08-10630 Document: 00511603419 Page: 4 Date Filed: 09/15/2011
No. 08-10630 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.
4

Case: 08-10630 Document: 00511603419 Page: 5 Date Filed: 09/15/2011
No. 08-10630 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)).
5

Case: 08-10630 Document: 00511603419 Page: 6 Date Filed: 09/15/2011
No. 08-10630 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.
6

Case: 08-10630 Document: 00511603419 Page: 7 Date Filed: 09/15/2011
No. 08-10630 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).
7

Case: 08-10630 Document: 00511603419 Page: 8 Date Filed: 09/15/2011
No. 08-10630 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).
8

Case: 08-10630 Document: 00511603419 Page: 9 Date Filed: 09/15/2011
No. 08-10630 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).
9

Case: 08-10630 Document: 00511603419 Page: 10 Date Filed: 09/15/2011
No. 08-10630 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.
10

Case: 08-10630 Document: 00511603419 Page: 11 Date Filed: 09/15/2011
No. 08-10630 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).
11

Case: 08-10630 Document: 00511603419 Page: 12 Date Filed: 09/15/2011
No. 08-10630 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).
12

Case: 08-10630 Document: 00511603419 Page: 13 Date Filed: 09/15/2011
No. 08-10630
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).
13

Case: 08-10630 Document: 00511603419 Page: 14 Date Filed: 09/15/2011
No. 08-10630 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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No. 08-10630 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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No. 08-10630
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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No. 08-10630 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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No. 08-10630 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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Case: 08-10630 Document: 00511603419 Page: 19 Date Filed: 09/15/2011
No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630
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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No. 08-10630 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). 32

Case: 08-10630 Document: 00511603419 Page: 33 Date Filed: 09/15/2011
No. 08-10630 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 twoyear personal-injury limitations period applied to claims under Title II).
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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630
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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630
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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630
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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No. 08-10630 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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No. 08-10630 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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No. 08-10630
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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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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No. 08-10630 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.
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

RICHARD FRAME, WENDELL DECKER, :

SCOTT UPDIKE, J.N., a minor

:

By his next friend and mother,

:

GABRIELA CASTRO, MARK HAMMAN :

and JOEY SALAS,

:

:

Plaintiffs

:

:

v.

:

:

THE CITY OF ARLINGTON,

:

a Municipal Corporation

:

:

Defendants

:

CIVIL ACTION NO. 4:05-CV-470-Y

SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is entered into this ___ day of ___________________________, 2012, by and between Plaintiffs Richard Frame, Wendell Decker, Scott Updike, Juan Nunez, a minor, by his next friend and mother, Gabriela Castro, and Joey Salas (“Plaintiffs”), Gabriela Castro, together with Plaintiffs’ heirs, executors, estates, administrators, and assigns (collectively sometimes referred to as the “Settling Parties”), and Defendant City of Arlington, Texas (the “City”), all parties to this lawsuit collectively referred to herein as the “Parties”).
I. BACKGROUND AND PARTIES
1. This lawsuit was initiated by Plaintiffs’ Original Complaint filed on July 22, 2005, under Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. pt. 35, and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794a (“Rehabilitation Act”). Reference to the ADA in this Agreement includes reference to the Rehabilitation Act and the regulations under both the ADA and the Rehabilitation Act unless otherwise specifically noted.
2. The original complaint was filed by Richard Frame and Wendell Decker, both at the time residents of Defendant City of Arlington. Plaintiff Scott Updike was added in the Second Amended Complaint. Plaintiffs Juan Nunez, a minor, by his next friend and mother, Gabriela Castro, Mark Hamman and Joey Salas were added in the Fourth Amended Complaint. The plaintiffs in this case depend on motorized wheelchairs for mobility, and allege that certain inaccessible sidewalks, curb ramps and parking lots make it dangerous, difficult, or

impossible for them to travel to a variety of public and private establishments throughout the City. In this lawsuit, Plaintiffs seek declaratory and injunctive relief, asking the Court to order the City to undertake various tasks to conform with the ADA, and to correct alleged accessibility deficiencies on numerous City streets, sidewalks, curb ramps and parking lots. Plaintiffs also allege that the City’s policies and procedures concerning the design, construction and maintenance of City streets, sidewalks, curb ramps and parking lots do not ensure compliance with the ADA. In addition to injunctive relief, Plaintiffs seek to recover attorney’s fees, expert fees, costs and expenses in this lawsuit.
3. The ADA applies to the City of Arlington because it is a public entity as defined in Title II of the ADA. 42 U.S.C. § 12131; 28 C.F.R. § 35.104.
4. Each of the named Plaintiffs is or was a qualified individual with a disability covered by Title II of the ADA. 42 U.S.C. § 12102(2); 28 C.F.R. § 35.104.
5. The Complaint presently before the Court, and which is resolved by this Agreement, is Plaintiffs’ Fourth Amended Complaint, filed August 9, 2007, Docket Item No. 94. In this Agreement, that document is referred to as the “Complaint.”
6. The City denies Plaintiffs’ allegations, and denies that it intentionally violated Plaintiffs’ rights under the ADA. The City filed a dismissal motion as its initial response to Plaintiffs’ claims.
7. Granting the City’s motion, the Complaint was dismissed by the District Court on March 31, 2008 (Docket Item No. 105) on the grounds that the statute of limitations barred Plaintiffs’ claims. The District Court also dismissed Plaintiffs’ claims alleging harm as to the City’s compliance with transition plan requirements under the ADA. Plaintiffs appealed the District Court’s dismissal based on the statute of limitations, but did not appeal the dismissal of their claim concerning the City’s transition plan.
8. On September 15, 2011, the District Court’s dismissal was reversed and the Complaint was reinstated by the United States Court of Appeals for the Fifth Circuit. See Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1561 (2012). The Fifth Circuit’s decision governs this case and is accepted by the Parties as definitive on the matters that it addresses.
9. After the case was reinstated in the District Court, the City has further answered Plaintiffs’ allegations in the Complaint, has denied them, and has asserted various affirmative defenses in response to Plaintiffs’ claims. Additionally, on or about October 26, 2011, Plaintiffs filed a suggestion of death regarding Plaintiff Mark Hamman. See Docket Item No. 126. Plaintiff Hamman’s estate has not been substituted into this case. It is understood and agreed by the Parties that this Agreement resolves the equitable claims asserted by Plaintiff Mark Hamman, or that could have been asserted by Plaintiff Hamman. It is further understood by the Parties that Plaintiff Juan Nunez is now 18 years of age or older and has legal capacity to enter into this Agreement.
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10. The Parties desire to enter into this Agreement in order to provide for certain actions by the City and payments by the City to Plaintiffs’ counsel in full settlement and discharge of all claims that are the subject of this lawsuit upon the terms and conditions set forth herein.
II. PURPOSES
11. The fundamental purpose of this Agreement is to ensure that Plaintiffs and persons with Mobility Disabilities are provided Mobility Access to the Pedestrian Rights-of-Way and Parking Facilities in accordance with the ADA. This purpose also serves the public interest, benefits the City by specifying an action plan for achieving ADA compliance, and benefits the Plaintiffs and persons with Mobility Disabilities whose Mobility Access within the City will be facilitated.
12. The Parties agree that they have entered into this Agreement as a complete compromise and in full satisfaction of all matters that are in dispute between the Parties, or that could have been in dispute, involving disputed issues of law and fact raised in this lawsuit. The Parties stipulate that this Agreement is entered into in good faith as a compromise of doubtful and disputed claims, and neither the obligations and payment provided for herein nor anything else contained in this Agreement may be construed as an admission of liability on the part of any of the Parties, since all such liability is expressly denied. This Agreement, therefore, is entered into in order to avoid the delays, uncertainties and costs of further litigation in this matter for all Parties.
13. This Agreement sets forth an agreed twenty-five (25) month time period for the City to achieve compliance with the remediation tasks in Section V, below, within that time period. When compliance is achieved, the City’s remediation obligations under this Agreement expires, and the City will maintain its compliance with ADA requirements as set forth herein going forward into the future and in accordance with applicable law.
III. COMPLIANCE PERIOD
14. The City’s remediation obligations under this Agreement will occur for twenty-five (25) months from the Effective Date of this Agreement, that is, until __________________________________ or any extension thereof. To the extent that amendments to the Action Plan under Section V.C. are adopted, the City’s remediation obligations will be extended until sixty (60) days after the completion of the last remaining remediation task in the Action Plan. This period of time is referred to in this Agreement as the “Compliance Period.” The brochure requirement at paragraph 20 and the Policy and Process requirements at paragraphs 27 through 31 shall continue beyond the Compliance Period as stated at paragraph 31.
15. This Agreement is effective upon the Final Approval by the District Court. The date of that approval is referred to in this Agreement as the “Effective Date.”
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IV. ACTION PLAN
A. Pedestrian Rights-of-Way and Parking Facilities
16. Curb Ramps and Sidewalks: Beginning immediately upon the Effective Date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards at any Newly Constructed or Altered Facility having curbs or other barriers to entry from a Pedestrian Facility.
17. Curb Ramps and Sidewalks: Remediation. Within twenty-five (25) months of the Effective Date of this Agreement, the City will provide accessible Pedestrian Rights-of-Way complying with the Standards at all designated B locations identified on the Survey Lists of the Action Plan (“the Plan”) at Section V below.
18. Parking Facilities. Within twenty-five (25) months of the Effective Date of this Agreement, the City will provide accessible Parking Facilities complying with the Standards at all designated B locations identified on the Survey Lists of the Action Plan (“the Plan”) at Section V below.
19. Implementation of the ADA Pedestrian Facility Access Policy and Process (“Policy and Process”). Within sixty (60) days of the Effective Date of this Agreement, the City will develop and implement the Policy and Process terms, set forth in Section VI below.
B. Public Information
20. Within sixty (60) days, the City shall make available to the public (online and available on paper by mail or phone request in accordance with the Texas Public Information Act) its schedule for work to be done with regard to designated B locations on the Survey Lists of the Action Plan in this Agreement. The City shall also post online and similarly make available on paper a brochure which sets forth the Policy and Process language from Section VI, below, and which brochure shall be set out for distribution in the City’s Department of Public Works, and shall be made available to any person submitting a request or complaint under the Policy and Process. Plaintiffs’ counsel shall be provided the opportunity to review and comment on the brochure before it is finalized.
V. ACTIONS ON PEDESTRIAN RIGHTS-OF-WAY AND PARKING FACILITIES
A. Source for Actions
21. The Parties agree that the source material for the activities described in this Section V is the list of specific locations set forth in the Complaint, and (where not repeated from the Complaint), the list of locations included in the survey conducted by Plaintiffs’ consultant, ADAAG Consulting Services, LLC (“ACS”), of Dallas, Texas, titled, City of Arlington Public Rights-of-Way Survey, dated October 31, 2007, Report No. ECPRW-7209, which is referred to in this Agreement as the “ACS Survey.” The locations set forth in the Complaint and the ACS Survey are incorporated herein by reference, but are not attached to this Agreement.
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B. Required Actions
22. The City has reviewed all locations listed in the Complaint and the ACS Survey and, after consultation with, and agreement by, Plaintiffs has prepared four (4) Survey Lists in connection with this Agreement. For verification purposes, on Plaintiffs’ requests from time to time, documentation of Registered Accessibility Specialist (“RAS”) certifications for specific designated B locations on the Survey Lists will be provided to Plaintiffs’ counsel within thirty (30) days of the request. The four (4) Survey Lists are entitled “Survey List 1,” “Survey List 2,” “Survey List 3,” and “Survey List 4,” and are attached to this Agreement. The following letter designations shown on the attached Survey Lists are agreed upon by the Parties, as follows:
a. Designation A (“Completed”) are those locations at which no further remediation action by the City under this Agreement is required because, for each location, City compliance with the ADA is evidenced by appropriate certification by a RAS, documented through the State Department of Licensing, independently of the City, which certification has been made available to Plaintiffs, or are locations otherwise agreed upon by the Parties to be accessible. The Parties agree that the locations designated as A are accessible Newly Constructed or Altered Facilities that comply with the Standards.
b. Designation B (“Remediation”) are those locations at which the Parties agree that the City will take action to remedy and achieve compliance with the Standards during the Compliance Period under this Agreement. Designated B locations also contain locations which are not necessarily listed in the Complaint or the ACS Survey but which the Parties have agreed that the City will remediate during the Compliance Period, without a determination by the Parties on whether the Standards require remediation, as further settlement of Plaintiffs’ claims in this lawsuit. The City will perform its obligations as to B designated remediation locations within the Compliance Period and in accordance with the Schedule in the Action Plan. City compliance with the ADA will be evidenced by appropriate certification by a RAS, documented through the State Department of Licensing, independently of the City, which certification will be made available to Plaintiffs.
c. Designation C (“Not Included”) are those locations that are either not under City Jurisdiction or are Existing Facility locations, and are not otherwise designated as B locations.
C. Action Plan
23. The City will establish an Action Plan within thirty (30) days of the Effective Date of this Agreement. The Action Plan, developed in consultation with the
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Parties’ legal counsel, will include dates for achievement of the City’s remediation and compliance work with each designated B location.
24. It is understood that, given the sometimes uncertain nature of construction activities (e.g., weather delays), compliance dates in the Action Plan may be reasonably amended by the City. Notice of any such amendment for an item shall immediately be provided to Plaintiffs’ Counsel. The Action Plan will be kept current and will include every original and amended compliance date for each item. The City will use its best efforts to complete the work shown for designated B locations within the Compliance Period. If the work is not completed within the Compliance Period, and the parties cannot agree on an extension of the Compliance Period within thirty (30) days after the end of the Compliance Period, the Parties shall resolve the dispute in accordance with the Dispute Resolution provisions under this Agreement.
25. The City’s work on designated B locations will be performed within the Compliance Period, except as may be modified pursuant to this Section V. The City will provide proposed time-tables on projects and priorities, and the Parties understand that such time-tables are subject to reasonable changes as may be necessary as a result of City Council direction to address urgent City obligations and/or fiscal responsibilities. Such changes shall not affect the Compliance Period as the final deadline for compliance.
VI. ADA PEDESTRIAN FACILITY ACCESS POLICY AND PROCESS
26. The City adopts the following ADA Pedestrian Facility Access Policy and Process set forth in Paragraphs 27 through 32 of this Section VI of this Agreement. The intention of the Parties is that, for Plaintiffs and for the City, the Policy and Process set forth below benefits the public interest generally and, specifically, the interests of the Parties.
27. The City recognizes that it is in the interest of all its citizens and visitors, and of all its businesses and organizations, that people with mobility disabilities have access to the City’s facilities, including its sidewalks, curb ramps and parking facilities, in accordance with applicable law. These are not only rights under applicable law but are opportunities which benefit the economic, social and civic life of the City. This policy is intended to facilitate the participation of people with mobility disabilities in the City, in business and education, and in family life.
28. The City is committed to abiding by all requirements of the ADA. The City welcomes and requests input from persons with disabilities regarding the accessibility of City sidewalks, including, for example, requests to add curb cuts at particular locations or removal of obstacles. Input may be provided to the City in person, by mail or telephone, online via the internet, and through public meetings. City contact information shall be available from the City’s internet website. The written brochure embodying this policy will include the relevant City contact information.
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29. Action by the City under this Agreement for remediation of the locations identified by citizens under this Section VI will be prioritized by the City in accordance with the following general principles:
a. Locations applicable to a Plaintiff will have highest priority, notwithstanding the prioritization list in the next subsection;
b. Locations established for remediation under the “request for action or complaints” provisions in paragraph 32, below.
c. After locations under “a” and “b,” priority in the following sequence will be given by the City to remediation of Pedestrian Rights-of-Way and Facilities serving: (i) government offices and facilities, (ii) important transportation corridors, (iii) places of public accommodation such as commercial and business zones, and (iv) locations serving other areas such as residential neighborhoods and undeveloped areas of the City.
d. Consideration by the City will also be given to the severity of existing barriers and overall efficiency of remediation project work. This means, for example, that work done for remediation under Section V of this Agreement may be expanded to address additional severe accessibility barriers nearby, even if such barriers are not located in a high priority area, if the City determines that this would be an efficient use of its resources. This also means that the City can determine what is the most appropriate use of funds to address severe barriers in lower priority areas rather than to remove all barriers in higher priority areas before advancing to the next priority level.
30. When the City receives input or suggestions from members of the public with regard to pedestrian facility locations under City Jurisdiction, the City will send an acknowledgement within ten (10) days including, where appropriate, either a substantive response or noting referral to the City’s ADA Coordinator who will address and provide further response to the input or suggestion.
31. The City is committed to providing a prompt response to all requests for action or complaints regarding accessibility, and on all submissions regarding ADA compliance. The City is committed to making serious efforts to resolve all requests and urges anyone who may be concerned to contact the City so that all issues may be resolved quickly and fairly. The City’s response will be consistent with the policies adopted herein. When the City receives a request for action or a complaint with regard to facility accessibility at a location under the City’s Jurisdiction:
a. The City will send an acknowledgement within ten (10) days, and will include a copy of this Policy and Process in the acknowledgement.
b. The City will carefully, and on a case-by-case basis, consider the request or complaint, based on this Policy and Process, and the priorities set forth above.
7

c. When the request or complaint is for action which would remedy a violation of the Standards at a location under the City’s Jurisdiction, and the City agrees that there is or may be a violation of the Standards, the City will inform the person who submitted the issue, and will make compliance a high priority, and will designate a prompt target date for achieving remediation and/or compliance. The City’s ADA Coordinator will track the City’s action with regard to the request or complaint. The City will provide a substantive response to the request or complaint within twenty-one (21) days of the original submission of the request or complaint. The remediation and/or compliance under this sub-paragraph shall be completed within 120 days of the original request or complaint, subject to available City funding and compliance with the City’s obligations under art. 11, §§ 5 and 7 of the Texas Constitution, or subject to an existing schedule for remediation and/or compliance. If lack of City funding issues, or issues under art. 11, §§ 5 and 7 of the Texas Constitution, arise, then the complainant and the City shall agree on an extension to the 120day time period.
d. When the request or complaint is for action and the City does not find that there is or may be a violation of the Standards or the location is not under City Jurisdiction, the City will inform the person who submitted the issue of the City’s determination. The City will provide its response to the request or complaint within twenty-one (21) days of the original submission of the request or complaint.
e. If a person who submits a request or complaint is not satisfied with the City’s response or planned action, or with the implementation of a planned action, or the timeliness of a response, then the person may bring the situation to the attention of the City by calling or writing to the City’s ADA Coordinator, who will offer a face to face meeting with the complaining person, at an accessible location agreed upon between the ADA Coordinator and the complaining person, to discuss and seek to resolve any issues, and to make an agreed plan to implement any resolution reached, if possible.
The City recognizes that sidewalk access issues are very important to people with Mobility Disabilities and will endeavor to increase police sensitivity to these issues and the needs of wheelchair users. The Arlington Police Department will be informed of these policies and procedures so that they may alert citizens to the mechanisms by which requests for action may be made.
Nothing in these Policies and Procedures is to be construed as an agreement by the City to repair or remediate accessibility issues as to sidewalks, curb ramps, parking lots, or other facilities that are not under City Jurisdiction. Nothing in these Policies or Procedures is to be construed as a restriction or waiver of the right of any individual to seek relief for an alleged violation of the ADA or Rehabilitation Act.
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These Policies and Procedures shall remain in effect and shall survive expiration of this Agreement as a continuing public service by the City, and are subject to amendment as may be necessary to further facilitate the intent of this Agreement.
VII. IMPLEMENTATION GENERALLY
32. During the Compliance Period, the City shall make available a copy of this Agreement to the public via the City’s internet website, and shall make this Agreement available on paper by request submitted under the Texas Public Information Act.
33. The Plaintiffs, by Plaintiffs’ Counsel, may review the City’s compliance with this Agreement at any reasonable time. Upon reasonable request, the City will provide reasonable access to Plaintiffs’ Counsel to information regarding the City’s compliance with this Agreement.
34. Failure by the Parties to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the Parties’ right to enforce other deadlines and provisions of this Agreement.
35. This Agreement does not purport to remedy any other potential violations of the ADA that are not included on the attached Survey Lists. This Agreement does not affect or alter the City’s continuing responsibility to comply with all aspects of the ADA, except as set forth in this Agreement.
36. The City shall designate a person to serve as an administrative liaison to Plaintiffs’ Counsel regarding the City’s compliance with this Agreement. The liaison shall be responsible for coordinating and providing all reports required by this Agreement.
VIII. REPORTS AND MONITORING
37. Quarterly Reports. Within sixty (60) days of the Effective Date of this Agreement, and each calendar quarter after that, the City will file with Plaintiffs’ Counsel a report on the City’s implementation of and compliance with this Agreement, and will make available on the City’s website a spreadsheet of information regarding the progress of remediation of designated B locations from the Survey Lists.
38. Contents of Quarterly Report. The City’s quarterly reports under this Section VIII of this Agreement shall reference the spreadsheet information on the City’s website regarding the City’s progress of work as to designated B locations, including the status of Certification by Registered Accessibility Specialist, and other evidence of actions taken by the City under the Policy and Process provisions of this Agreement. The City’s quarterly reports will also include information from the City’s ADA Coordinator regarding the City’s compliance with ADA requirements, including, for example, a summary and listing of all written complaints or requests for removal of particular barriers received since the prior quarterly report, summaries of work done to ensure access and/or remove access barriers in conjunction with new construction and or alterations along Pedestrian Facilities, a description of any challenges to compliance and the
9

City’s actions and plans to address those challenges. The City’s obligation to provide quarterly reports to Plaintiffs’ counsel concludes at the end of the Compliance Period.
IX. RELEASE
39. In order to achieve a full and complete release of the City of Arlington, Plaintiffs hereby fully, finally, and forever release, settle, compromise, and discharge any and all disputes and claims arising from or related to any and all claims for injunctive or declaratory relief under the Americans with Disabilities Act, and the Rehabilitation Act of 1973, and Section 504 of the Rehabilitation Act of 1973, as amended, involving the subject matter of this Agreement, which release includes in its effect all officers, directors, employees, partners, agents, representatives, attorneys, insurers and successors and assigns of the City of Arlington (“Released Parties”). The release of claims includes claims which a Plaintiff does not know or suspect to exist in his or her favor against the Released Parties as of the Effective Date of this Agreement. The Plaintiffs each waive all rights and benefits afforded by any statutory law as to known or unknown claims, and do so understanding the significance of said waiver.
40. The Settling Parties acknowledge and agree that the release and discharge set forth above is a general release. Each Plaintiff knowingly waives, and assumes the risk of, any and all claims of any nature whatsoever, which exist as of this date but which such Plaintiff does not know or suspect to exist, including, without limitation, claims which, if known, would have materially affected such Plaintiff’s decision to enter into this Agreement. Each Plaintiff hereby confirms that he understands that facts relating to the allegations that are the subject of this lawsuit may turn out to be other than or different from the facts now known or believed by such Plaintiff to be true, and each Plaintiff knowingly assumes that risk and acknowledges and agrees that his Agreement shall remain in effect and shall not be subject to termination or revocation by reason of any such different facts.
X. DISPUTE RESOLUTION
The Parties shall negotiate in good faith to resolve any Dispute and agree to strict compliance with the following procedures for Dispute Resolution.
A. Meet and Confer Obligation
41. In the event that a Dispute arises between any Plaintiff and the City, the Party asserting the Dispute or the Party’s designee, shall notify counsel for the other Party to the Dispute before seeking further enforcement or judicial resolution of the Dispute. Notification shall be in writing and shall be served by mail, facsimile or hand-delivery.
42. The Party asserting the Dispute shall provide the other Party with a detailed statement of the Dispute (“Statement”) to allow the Parties to attempt to resolve the Dispute. That Statement will at a minimum include:
a. A description of the term(s) of this Agreement in dispute and the
10

corresponding section number(s) of this Agreement;
b. Where applicable to the claim, a description of all locations, features, policies, practices and/or conditions at issue in the Dispute, the dates on which any particular locations, features, policies, practices and/or conditions allegedly were in violation of the term(s) of this Agreement, and the dates that the Party encountered and/or learned of such locations, features, policies, practices and/or conditions, along with any photos, videos, and diagrams relevant to such locations, features, policies, practices and/or conditions available to or in the possession of the complaining Party; it is not required that the complaining party create such photos, videos or diagrams;
c. Where applicable to the claim, a detailed statement of how each location, feature, policy, practice and/or condition is in violation of the term(s) of this Agreement; and
d. Where applicable to the claim, the specific relief sought by the Party. For each location or feature, a statement of the change(s) that the Party demands, or if change to policy, practice or condition is sought the specific policy, practice or condition that the Party seeks to be modified or rectified.
43. Within thirty (30) days of receipt of a Dispute Statement, as outlined above, the Parties shall meet and confer in an attempt to resolve the Dispute. The parties may meet in person, by teleconference or videoconference. If the Parties agree that the disputed matter requires action to bring the responding party into compliance with the terms of this Agreement, the responding party shall be given a reasonable opportunity and sufficient time to cure the defect in its performance of the obligations under this Agreement.
B. Enforcement Proceedings – Mediation
44. If the Parties cannot resolve the Dispute under Subsection A of this Section, above, then the Parties agree to participate in mediation as a condition precedent to binding dispute resolution. A request for mediation shall be made in writing, delivered to the other Party to this Agreement, and the Parties shall have fifteen (15) days after receipt of a request for mediation to agree on a mediator. If the Parties are unable to agree on a mediator within fifteen (15) days, each Party shall have an additional five (5) days to designate a mediator. The two mediators so designated shall then designate a third unbiased mediator who shall be the mediator to conduct the mediation. The decision of the mediator(s) shall be nonbinding. The City agrees to pay the mediator’s fees in an amount not to exceed $3,000.00, provided that the mediator is a licensed attorney in Tarrant County, Texas. The mediation shall be held in an accessible location within the City, unless another location is mutually agreed upon by the Parties. Agreements reached in mediation shall be enforceable as settlement agreements in the federal court hearing matters related to parties in Tarrant County, Texas.
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C. Enforcement Proceedings – Legal Action
45. If the Parties cannot resolve the Dispute under Subsections A or B of this Section, above, then the Party asserting the Dispute may bring appropriate legal action in the federal court hearing matters related to parties in Tarrant County, Texas, as the agreed upon method of binding dispute resolution.
XI. MODIFICATION
46. This Agreement may not be changed, altered, amended or modified, except in writing and signed by each of the Parties hereto.
XII. ATTORNEYS’ FEES AND COSTS
47. Upon the Effective Date of this Agreement, the City will pay attorney’s fees and costs to Plaintiffs’ counsel in the following amounts: (1) to Plaintiffs’ former counsel, de la O, Marko, Magolnick & Leyton: $249,557.99; (2) to Plaintiffs’ current counsel, David Ferleger, $59,964.00; and (3) to Plaintiffs’ local counsel, John Nevins, $800.00. By the City’s payment to all Plaintiffs’ counsel as provided under this Section, Plaintiffs and all Plaintiffs’ counsel do hereby completely release, acquit and forever discharge the City, and its past, present and future officers, attorneys, agents, representatives, employees, predecessors and successors in interest, assigns, and insurers, and all other persons or entities which are or might be claimed to be liable to the Plaintiffs and all Plaintiffs’ counsel as a consequence of the Plaintiffs’ claim for attorney’s fees and costs that are the subject of this lawsuit, from any and all claims, demands, actions, causes of action for attorney’s fees and costs, of any and every kind and description, whether known or unknown, now existing or hereafter arising, as a result of or by reason of the allegations that are the subject of this lawsuit.
XIII. DISMISSAL
48. Upon the Effective Date of this Agreement, the Parties shall file with the District Court a joint request for dismissal of this action with prejudice.
XIV. COURT APPROVAL
49. This Agreement shall be subject to approval by the District Court. Within ten (10) days of the execution of this Agreement by all Parties, the Parties will jointly move for approval of this Agreement in the District Court. This Agreement, when approved by the District Court, shall become effective and shall be binding upon the Parties; it shall extinguish all the Parties’ claims; and it shall constitute the final and complete resolution of all issues in dispute between the Parties in this lawsuit.
XV. OTHER PROVISIONS
A. Counterparts
50. This Agreement may be executed in multiple counterparts, each of which will be considered an original, but all of which, when taken together, will constitute one and the same instrument.
12

B. Interpretation
51. The language of this Agreement will be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. The headings in this Agreement are solely for convenience and will not be considered in its interpretation. Where required by context, the plural includes the singular and the singular includes the plural, and reference to one gender includes reference to the other gender.
C. Severability
52. If any term of this Agreement is determined by any court of competent jurisdiction to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties, the Parties shall engage in good faith negotiations in order to adopt amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the initially agreed upon relative rights and obligations.
D. Additional Documents
53. To the extent any documents are required to be executed by any of the Parties to effectuate this Agreement, each Party hereto agrees to execute and deliver such further documents as may be required to carry out the terms of this Agreement.
E. City Council Approval
54. It is understood and agreed by the Parties that this Agreement is subject to the approval of the City Council of the City of Arlington, Texas. As soon as possible after execution of this Agreement by the Parties, counsel for the City will present this matter to the City Council for its approval. Counsel for the City will report to Plaintiffs’ Counsel in writing as to the City Council’s action by no later than the next business day after the City Council’s action. Counsel’s report of the City Council’s action shall be considered dispositive evidence that this contingency has been satisfied.
F. Entire Agreement
55. This document and its attachments contain the entire agreement between the Parties relating to the settlement and transactions contemplated hereby, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a Party or such Party’s legal counsel, are merged herein. No rights hereunder may be waived except in writing. This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable only by the Parties hereto and the respective successors, heirs, executors, administrators, estates, and permitted assigns of any of the Parties.
G. Warranty of Capacity to Execute Agreement
56. Each Plaintiff represents and warrants that: (i) except as otherwise
13

specifically set forth herein no other person or entity has or has had any interest in the claims, demands, actions, or causes of actions referred to in this Agreement; (ii) such Plaintiff has the sole right and exclusive authority to enter into this Agreement (including granting the releases provided for herein); and (iii) such Plaintiff has not sold, assigned, encumbered or otherwise transferred or conveyed to any other party any of the claims, demands, actions or causes of action referred to in this Agreement or any interest in any such claims, demands, actions or causes of action.
H. Legal and Tax Advice; Comprehension of Agreement
57. In entering into this Agreement, each Plaintiff represents that such Plaintiff has relied solely upon the legal and tax advice of such Plaintiff’s own attorneys and other advisers, who are the attorneys and advisers of such Plaintiff’s choice, that the terms of this Agreement have been completely read and explained to such Plaintiff by such attorneys and that such terms are fully understood and voluntarily accepted by such Plaintiff.
I. Governing Law
58. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, and applicable federal law of the ADA, the ADA’s implementing regulations, and the Rehabilitation Act, and exclusive venue for claims or causes of action related in any way to this Agreement shall be in the federal court hearing matters related to parties in Tarrant County, Texas.
XVI. DEFINITIONS
59. As used in this Agreement, the following terms shall have the meanings ascribed to them in this Section, which the Parties agree are consistent with the provisions of the ADA, including the regulations promulgated thereunder. Except to the extent expressly stated to the contrary, any term not expressly defined in this Section or elsewhere in this Agreement that has an expressly defined meaning in either the ADA or the regulations promulgated thereunder ("Regulations") shall have the meaning ascribed to it by the ADA or said Regulations, in that order of preference. All other terms in this Agreement shall be interpreted according to their plain and ordinary meaning.
60. “Accessible” means and refers to a Facility or a Pedestrian Rights-of-Way, or a portion thereof, that complies with the Standards.
61. "ADA" means and refers to the Americans with Disabilities Act, as codified at 42 U.S.C. § 12101, et seq, as amended.
62. "ADAAG" means and refers to the Americans with Disabilities Act Access Guidelines, currently codified at Appendix A to 28 Code of Federal Regulations part 36 and at Appendix A to 49 Code of Federal Regulations part 37, and any amendments/modifications thereto, and are referenced in the Department of Justice’s Title II Regulations, Section 35.151(c) of Title 28 of the Code of Federal Regulations.
14

63. “Alterations” means and refers to changes to a building or facility made by, on behalf of, or for the use of the City that affects or could affect the usability of the building or facility or part thereof. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, or changes to mechanical and electrical systems are not Alterations unless they affect the usability of the building or facility.
64. “Altered Facility” means and refers to any Facility or Pedestrian Right-ofWay that will have or has had Alterations.
65. “Certification by Registered Accessibility Specialist” means and refers to written approval by a Registered Accessibility Specialist that a Facility or Pedestrian Right-of-Way is Accessible, with such certification provided by and through the Texas Department of Licensing and Regulation.
66. “City” means and refers to the City of Arlington, Texas, Defendant in this lawsuit.
67. “City Jurisdiction” means and refers to a Facility or Pedestrian right-of-way that is owned and controlled by the City, either in part or in full, or a Facility or Pedestrian right-of-way over which the City has jurisdiction through an agreement with the owner or other governmental entity even though not owned by the City. The term “controlled” is deemed to include the City’s maintenance responsibilities.
68. “Complaint” means and refers to the Fourth Amended Complaint, filed in this lawsuit on August 9, 2007 (Docket Item No. 94) upon leave of court.
69. “Compliance Period” shall have the meaning as described in Section III of this Agreement.
70. “Curb Ramp” means and refers to a short ramp cutting through a curb or built up to it.
71. “Day” means calendar day.
72. “Defendant” means and refers to the City.
73. “Disability” means and refers, with respect to an individual, a physical or mental impairment as defined in the Americans with Disabilities Act, as amended.
74. “Dispute” means and refers to each and every dispute that arises out of this Agreement, any interpretation thereof, any asserted breach thereof, and/or the claims released in this Agreement.
75. “Effective Date” shall have the meaning described in Section III of this Agreement.
76. “Existing Facility” means and refers to a Facility and Pedestrian Right-ofWay constructed before, altered, or in existence on January 26, 1992.
15

77. “Facility” means and refers to all or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real property subject to the ADA.
78. “Final Approval” means and refers to the date when the Court issues an order granting final approval of this Agreement.
79. “Mobility Access” means and refers to a continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts.
80. “Mobility Disability” means and refers, with respect to an individual, to any physical impairment or condition that substantially limits an individual's ability to move his or her body or a portion of his or her body and includes, but is not limited to, orthopedic and neuro-motor disabilities and any other impairment or condition that limits an individual's ability to walk, maneuver around objects, ascend or descend steps or slopes, and operate controls. An individual with a Mobility Disability may use a walker, manual or power wheelchair or motorized scooter for mobility, or Segway or other device, or may be semi-ambulatory and use no device. For the purposes of this Agreement, Mobility Disability does not refer to or include disabilities such as a hearing impairment or visual impairment which may affect an individual’s mobility.
81. “Newly Constructed or Altered Facility” means and refers to any Facility or Pedestrian Right-of-Way constructed or altered after January 26, 1992.
82. “Owner” means and refers to the person or persons, company, corporation, authority, commission, board, governmental entity, institution, or any other entity that holds title to the subject building, facility or property.
83. “Parking Facility” means and refers to any parking lots under City Jurisdiction that the City intends for use by members of the public.
84. “Parties” means and refers collectively to those bound by this Agreement, namely, the City of Arlington and Plaintiffs.
85. “Pedestrian Right-of-Way” means and refers to any paved walks under City Jurisdiction that the City intends for use by members of the public, including but not limited to outdoor pedestrian walkways, sidewalks, crosswalks, pedestrian undercrossings and/or pedestrian overcrossings.
86. “Plaintiffs” means and refers to Richard Frame, Wendell Decker, Scott Updike, Juan Nunez, Mark Hamman, and Joey Salas.
87. “Plaintiffs’ Counsel” means and refers to David Ferleger, and such local counsel as designated and approved by the federal court hearing matters related to parties in Tarrant County, Texas; except that in Section XII, the term “Plaintiffs’ counsel” refers to all attorneys who have represented or are currently
16

representing Plaintiffs in this lawsuit.
88. “Quarterly Report” shall have the meaning described in Section VIII of this Agreement.
89. “Registered Accessibility Specialist” means and refers to an individual who is certified by the Texas Department of Licensing and Regulation to perform the review functions, inspection functions, or both review and inspections functions, of the Texas Department of Licensing and Regulation to determine compliance with the Standards.
90. “Rehabilitation Act” means and refers to the Rehabilitation Act of 1973, and codified in 29 U.S.C. §§ 701, et seq., as amended.
91. “Released Claims” means and refers to the claims released pursuant to this Agreement, as set forth herein.
92. “Settlement Agreement” means and refers to this Agreement.
93. “Sidewalk” means and refers to that portion of an exterior circulation path that is improved for use by pedestrians and usually paved.
94. “Standards” means and refers to the standards under the Americans with Disabilities Act and the ADAAG for accessibility to Pedestrian Rights-of-Way and Parking Facilities, as such standards (1) existed at the time of the City’s construction of a Newly Constructed or Altered Facility, (2) existed at the time this lawsuit was filed, (3) exist now, or (4) may be revised or amended in the future; and it is agreed among the Parties that the Texas Accessibility Standards (“TAS”) complied with or exceeded, and at this time, comply with or exceed the ADA standards. The TAS were adopted pursuant to the Texas Architectural Barriers Act, which was originally codified as Article 9102, Texas Civil Statutes, and is now codified at Chapter 469 of the Texas Government Code. The TAS were adopted by the Texas Commission of Licensing and Regulation on December 17, 1993, and became effective on April 1, 1994, and apply as the Standards, as amended, applicable to the City’s remediation work agreed to under this Agreement, subject to the initial sentence of this definition regarding ADA standards. Should there later be any conflict between the ADA and TAS standards, the ADA standards will govern as the minimum requirements.
95. “Statement” means and refers to the Dispute Statement as set forth in Section X of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement in multiple counterparts.
17

Richard Frame

Date

STATE OF TEXAS

§

§

COUNTY OF TARRANT §

BEFORE ME, the undersigned authority, on this day personally appeared Richard

Frame, known to me to be the individual whose name is subscribed hereinabove, and

after being duly sworn on his oath, states that he has read and fully understands the

foregoing instrument, and that he has executed the same for the purposes and

considerations herein expressed.

SUBSCRIBED AND SWORN TO this ___ day of

_______________, 2012.

My commission expires: ______________________________________

_________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS

18

_______________________________________________________________

Wendell Decker

Date

STATE OF TEXAS

§

§

COUNTY OF TARRANT §

BEFORE ME, the undersigned authority, on this day personally appeared Wendell

Decker, known to me to be the individual whose name is subscribed hereinabove, and

after being duly sworn on his oath, states that he has read and fully understands the

foregoing instrument, and that he has executed the same for the purposes and

considerations herein expressed.

SUBSCRIBED AND SWORN TO this ____ day of

_______________, 2012.

My commission expires: _______________________________________

_________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS

19

_______________________________________________________________

Scott Updike

Date

STATE OF TEXAS

§

§

COUNTY OF TARRANT §

BEFORE ME, the undersigned authority, on this day personally appeared Scott

Updike, known to me to be the individual whose name is subscribed hereinabove, and

after being duly sworn on his oath, states that he has read and fully understands the

foregoing instrument, and that he has executed the same for the purposes and

considerations herein expressed.

SUBSCRIBED AND SWORN TO this ____ day of

_______________, 2012.

My commission expires: ______________________________________

_________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS

20

________________________________________________________________ Date
Juan Nunez

STATE OF TEXAS

§

§

COUNTY OF TARRANT §

BEFORE ME, the undersigned authority, on this day personally appeared Juan

Nunez, known to me to be the individual whose name is subscribed hereinabove, and

after being duly sworn on his oath, states that he has read and fully understands the

foregoing instrument, and that he has executed the same for the purposes and

considerations herein expressed.

SUBSCRIBED AND SWORN TO this ____ day of

_______________, 2012.

My commission expires: _______________________________________

__________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS

21

________________________________________________________________

Joey Salas

Date

STATE OF TEXAS

§

§

COUNTY OF TARRANT §

BEFORE ME, the undersigned authority, on this day personally appeared Joey

Salas, known to me to be the individual whose name is subscribed hereinabove, and after

being duly sworn on his oath, states that he has read and fully understands the foregoing

instrument, and that he has executed the same for the purposes and considerations

herein expressed.

SUBSCRIBED AND SWORN TO this ____ day of

_______________, 2012.

My commission expires: _______________________________________

_________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS

22

City of Arlington, Texas

_______________________________________________________________

Jay Doegey, City Attorney

Date

ATTEST:

Mary W. Supino, City Secretary SEAL

23

Respectfully submitted,
David Ferleger, Esq. Archways Professional Building 413 Johnson Street Jenkintown, PA 19046 Phone: (215) 887-0123 Fax: (215) 887-0133 david@ferleger.com
John Mitchell Nevins, Esq The Nevins Law Firm 7600 San Jacinto Place, Suite 200 Plano, Texas 75024-3252 Phone: (214) 919-3510 Fax: (469) 675-6492 nevins@nevinslawfirm.com
Attorneys for Plaintiffs

Respectfully submitted,
_______________________________________________ Edwin P. Voss, Jr. State Bar No. 20620300 Kent S. Hofmeister State Bar No. 09791700 Brown & Hofmeister, L.L.P. 740 East Campbell Road, Suite 800 Richardson, Texas 75081 Phone: (214) 747-6100 Fax: (214) 747-6111 evoss@bhlaw.net
Melinda H. Barlow Assistant City Attorney State Bar No. 00783601 City of Arlington P.O. Box 90231 Arlington, Texas 76004-3231 Phone:(817) 459- 6878 Fax: (817) 459-6897 Melinda.Barlow@arlingtontx.gov
Attorneys for Defendant City of Arlington, Texas

DATE: _________________________________________, 2012

24

SURVEY LIST 1 25

SURVEY LIST 2 26

SURVEY LIST 3 27

SURVEY LIST 4 28

 
 632 F.3d 177 (2011)
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.
No. 08-10630.
United States Court of Appeals, Fifth Circuit.
January 26, 2011.
Miguel M. de la O (argued), de la O, Marko, Magolnick & Leyton, Miami, FL, for PlaintiffsAppellants.
Edwin Armstrong Price Voss, Jr. (argued), Brown & Hofmeister, L.L.P., Richardson, TX, Denise V. Wilkerson, Asst. City Atty., Arlington, TX, for Defendant-Appellee.
Dirk Christian Phillips, Jessica Dunsay Silver, U.S. Dept. of Justice, Civ. Rights Div., App. Section, Washington, DC, for U.S., Amicus Curiae.
Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges.
BY THE COURT:
A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,
It is ordered that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.