2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-16-2011

Disabled Action PA v. SEPTA

Precedential or Non-Precedential: Precedential

Docket No. 09-3964

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Recommended Citation

"Disabled Action PA v. SEPTA" (2011). 2011 Decisions. Paper 1727.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 09-3964 

_____________ 

DISABLED IN ACTION OF PENNSYLVANIA 

v. 

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY ("SEPTA"), 

 Appellant 

_____________ 

On Appeal from the District Court 

for the Eastern District of Pennsylvania 

(No. 2-03-cv-01577) 

District Judge: Honorable Gene E. K. Pratter 

___________ 

Argued October 4, 2010 

Before: SCIRICA, FUENTES, and JORDAN, Circuit Judges

(Opinion Filed: February 16, 2011) 

Jo Bennett (Argued) 

Michael G. Tierce 

Stevens & Lee 

1818 Market Street, 29th Floor 

Philadelphia, PA 19103-1702 

 Attorney for Appellant
2 

Stephen F. Gold (Argued) 

1709 Benjamin Franklin Pkwy, 2nd Floor 

Philadelphia, PA 19103 

Mark J. Murphy 

Rocco J. Iacullo 

Robin Resnick 

Disability Rights Network of PA 

1315 Walnut Street, Suite 500 

Philadelphia, PA 19107-4705 

 Attorneys for Appellee

OPINION OF THE COURT 

Fuentes, Circuit Judge: 

 Disabled in Action of Pennsylvania (“DIA”) has filed 

suit claiming that the Southeastern Pennsylvania 

Transportation Authority (“SEPTA”)’s failure to make certain 

portions of its facilities accessible to individuals with 

disabilities after undertaking construction work at those 

facilities violated the Americans with Disabilities Act, 42 

U.S.C. §§ 12101, et seq. (“ADA”), and the Rehabilitation 

Act, 29 U.S.C. § 794, et seq. (“RA”). On appeal from the 

District Court’s grant of summary judgment in favor of DIA, 

SEPTA argues that certain regulations issued by the 

Department of Transportation (“DOT”) implementing the 

ADA establish that it was not required to make those portions 

of its facilities handicapped-accessible. For the reasons given 

below, we affirm. 

I. 

A. Background 

 The facts of this case are fairly straightforward. 

Appellant SEPTA, an agency and instrumentality of the 

Commonwealth of Pennsylvania, provides public 

transportation, including train, subway, trolley, and 
3 

paratransit services in five counties of Pennsylvania. The 

dispute in this case concerns two separate SEPTA 

construction projects that involved a total of three of its 

stations in Philadelphia. 

The first of these stations, the 15th and Market Street 

subway station, serves the Market-Frankford Elevated 

Subway Line. This station is not accessible to individuals 

with disabilities. It is connected with the second station in 

question, Suburban Station, via the extensive underground 

Penn Center Concourse, which is lined with shops and 

offices. Suburban Station is a regional rail station.1

 On the 

concourse level connecting Suburban Station and 15th Street 

Station, at approximately 15th Street and Market, is a 

courtyard (“the 15th Street Courtyard”). Through 

underground travel, it is possible to reach either Suburban 

Station or 15th and Market Street Station from the 15th Street 

Courtyard.2

 

In February 2001, as part of a larger renovation 

project, SEPTA received a permit from the City of 

Philadelphia (the “City”) to begin replacement of the only 

stairway in the 15th Street Courtyard. The stairs, which had 

become unusable, were demolished and replaced, but no 

modifications were made to any load-bearing structure of the 

15th Street Courtyard. The work was concluded in August 

2002. This project had a budget of approximately $1.5 

million dollars; SEPTA’s expert estimated that the cost of 

installing an elevator in addition to the stairs would have 

made the project $810,000 more expensive. SEPTA has not 

 1

 “The SEPTA Regional Rail Division provides commuter 

rail service on thirteen branches to over 150 active stations in 

Philadelphia, Pennsylvania and its suburbs.” Wikipedia, 

SEPTA Regional Rail, 

http://en.wikipedia.org/wiki/SEPTA_Regional_Rail (last 

visited November 8, 2010). 

2

 The parties dispute whether the 15th Street Courtyard is 

an entrance to the 15th and Market Street Station or to 

Suburban Station. The District Court did not resolve this 

issue, and we do not find it necessary to resolve it in order to 

determine this case. 
4 

contended that it would be technically infeasible to install an 

elevator at that site. 

Suburban Station is a “key station” in the SEPTA 

system and is therefore subject to special accessibility 

requirements under the ADA. In 2005, as part of its efforts to 

comply with those accessibility requirements, SEPTA 

installed two elevators in Suburban Station. The entrance to 

one of these elevators is on street level at 16th Street between 

Market Street and JFK Blvd., making it theoretically possible 

for a person using a wheelchair to descend there to the Penn 

Center Concourse and travel underground to the 15th Street 

Courtyard. Otherwise, the 15th Street Courtyard is 

inaccessible to individuals using wheelchairs. 

The third station in question, City Hall Subway 

Station, is located at Broad Street and Market Street and 

serves the Broad Street Subway Line.3

 It, too, is inaccessible 

to those in wheelchairs. Before 2002, there was an 

inoperative escalator leading from a courtyard at the 

concourse level of City Hall Subway Station to street level in 

the southeast corner of Philadelphia City Hall Courtyard (the 

“City Hall Courtyard”). 

In June 2001, SEPTA undertook extensive repairs to 

the inoperative escalator at City Hall Courtyard by, among 

other things, replacing the internal mechanisms within the 

escalator’s wheelwell. Again, no modifications were made to 

any load-bearing structures. The repairs at City Hall 

Courtyard cost approximately $1.2 million; SEPTA estimates 

that the cost of installing an elevator there would raise the 

total cost to $3.2 million. However, SEPTA has not claimed 

that it would be technically infeasible to install an elevator 

there, so long as it had sufficient access to the property.4

 

 3

 City Hall Subway Station is not connected to either 

Suburban Station or the 15th Street Station. 

4

 City Hall Courtyard is owned by the City of 

Philadelphia, not SEPTA. 
5 

B. The District Court’s Decision 

Appellee DIA is a nonprofit group which advocates for 

the civil rights of persons with disabilities. It filed a lawsuit 

against SEPTA in March 2003 alleging that SEPTA had 

violated both Title II of the ADA and the Rehabilitation Act5

by failing to make the 15th Street Courtyard accessible to 

those with disabilities after replacing the stairway at that 

location. SEPTA moved to dismiss, arguing that the City was 

a required party to the litigation because the City owns the 

15th Street Courtyard. That motion was granted as 

unopposed, but the Court subsequently vacated its order and 

DIA amended its complaint to add the City as a defendant. In 

October 2003, DIA filed a second amended complaint. DIA 

amended its complaint a third time in January 2004, adding 

an allegation that SEPTA was required to make City Hall 

Station accessible because that station constituted a “key 

station” as defined by the ADA and relevant regulations. 

In August 2004, DIA and the City reached a settlement 

in which the City agreed to permit SEPTA to use the City’s 

property to install an elevator at the 15th Street Courtyard.6

 

In order to resolve DIA’s claim that City Hall Station was a 

key station required to be made handicapped accessible, the 

City indicated that it would “give permission ... for SEPTA 

to [] construct the City Hall Station renovation project which 

has been discussed by SEPTA and the Plaintiffs in conceptual 

form for years.” It appears that the “renovation project” 

referenced by the settlement pertains to the construction of an 

elevator at Dilworth Plaza, which is a different location than 

 5

 The analysis below applies to both the ADA and the RA 

claims. “In light of the similarities between ... the ADA and 

RA and their implementing regulations, we construe and 

apply them in a consistent manner.” Pennsylvania Prot. and 

Advocacy, Inc. v Pennsylvania Dep’t of Pub. Welfare, 402 

F.3d 374, 379 n.3 (3d Cir. 2005). 

6

 SEPTA was not a party to the settlement reached 

between DIA and the City. 
6 

the City Hall Courtyard.7

 The District Court dismissed the 

City from the action in light of the settlement. 

DIA’s fourth and final complaint was filed on 

February 15, 2005. The fourth amended complaint, which 

named only SEPTA as a defendant, asserted two claims. 

Count I contended that SEPTA violated the ADA and RA by 

making “alterations” to the 15th Street Courtyard and the City 

Hall Courtyard without also making the affected portions of 

the facilities accessible to individuals with disabilities. That 

was the first time in the litigation that DIA alleged that the 

extensive work conducted on the escalator at City Hall 

Courtyard constituted an “alteration” within the meaning of 

the ADA. Count II alleged that SEPTA had violated the 

ADA and RA by failing to make 15th Street Station and City 

Hall Station, both allegedly “key stations” within the meaning 

of the ADA and RA, handicapped accessible. DIA sought 

relief in the form of, among other things, an injunction 

requiring SEPTA “to begin construction immediately of 

elevators [] at the [15th Street Courtyard Entrance] to the 

Market-Frankford ... Line and at the City Hall Station 

Courtyard’s Northwest and Southeast entrances to the Broad 

Street Subway Line to assure access for persons with 

disabilities, including persons who use wheelchairs ... .” 

DIA and SEPTA later moved for summary judgment 

against each other. In November 2006, the District Court 

granted summary judgment in favor of SEPTA, holding that 

DIA’s claims were time-barred. On appeal, we reversed the 

District Court’s decision and remanded the case for further 

proceedings. See Disabled in Action of Pennsylvania v. 

Southeastern Pennsylvania Transp. Auth., 539 F.3d 199 (3d 

Cir. 2008). After remand, both parties again moved for 

summary judgment on the remaining claims. The District 

Court granted summary judgment in favor of DIA, finding 

that SEPTA’s work at both the 15th Street Courtyard and City 

Hall Courtyard constituted “alterations” which triggered 

requirements under the ADA and the Rehabilitation Act to 

make both locations “readily accessible to” individuals with 

disabilities. 

 7

 Elevators at Dilworth Plaza would provide those with 

disabilities access to City Hall Station via the concourse level. 
7 

SEPTA has now appealed the District Court’s 

decision. 

II. 

“We exercise plenary review over a district court’s 

summary judgment ruling.” Melrose, Inc. v. City of 

Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2009). “Summary 

judgment is appropriate only where, drawing all reasonable 

inferences in favor of the nonmoving party, there is no 

genuine issue as to any material fact and ... the moving party 

is entitled to judgment as a matter of law.” Id. (citing Ruehl 

v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)). 

 The ADA “provide[s] a clear and comprehensive 

national mandate for the elimination of discrimination against 

individuals with disabilities.” 42 U.S.C. § 12101(a) (2010). 

In enacting the law, Congress found that “discrimination 

against individuals with disabilities continue[s] to be a serious 

and pervasive problem” in American society and therefore 

sought to “assure equality of opportunity, full participation, 

independent living, and economic self-sufficiency” for 

individuals with disabilities. Id. § 12101(a)(2), (7). In 

particular, one of the ADA’s aims is the elimination of 

“architectural [and] transportation ... barriers” to full 

participation in society by individuals with disabilities by, 

among other things, mandating the improvement of access to 

public transit. Id. § 12101(a)(5). Therefore, although it does 

not generally mandate that existing public transit facilities be 

made accessible, the ADA does impose specific requirements 

on public entities which build new facilities or make 

“alterations” to existing facilities. 

“With respect to alterations of an existing facility or 

part thereof used in [public transit] that affect ... the usability 

of the facility or part thereof,” the ADA provides that it is 

discriminatory for a public entity to “fail to make such 

alterations ... in such a manner that, to the maximum extent 

feasible, the altered portions of the facility are readily 

accessible to” individuals with disabilities. 42 U.S.C. § 

12147(a) (2010) (emphases added). “Thus, while Congress 

chose not to mandate full accessibility to existing facilities, it 

required that subsequent changes to a facility be undertaken 

in a non-discriminatory manner.” Kinney v. Yerusalim, 9 
8 

F.3d 1067, 1073 (3d Cir. 1993). In other words, if a public 

entity chooses to make changes rising to the level of 

“alterations” to a facility, it ordinarily must use that 

opportunity to make the altered part of the facility accessible, 

as well. 

In order to resolve this case, we must consider in turn 

the meaning of the phrases “alterations,” “the maximum 

extent feasible,” and “readily accessible” and then their 

application to the SEPTA projects at issue. 

A. “Alterations” 

 Section 12147(a) of title 42 does not define the terms 

“alterations” or “the maximum extent feasible.” However, 

the DOT has issued regulations that provide additional 

guidance as to their meaning. The implementing regulations 

set forth in 49 C.F.R. § 37.43(a)(1) echo the requirements of 

42 U.S.C. § 12147(a). The regulations define “alterations” to 

mean 

a change to an existing facility, including, but 

not limited to, remodeling, renovation, 

rehabilitation, reconstruction, historic 

restoration, changes or rearrangement in 

structural parts or elements, and changes or 

rearrangement in the plan configuration of walls 

... [but not] [n]ormal maintenance, reroofing, 

painting or wallpapering, asbestos removal, or 

changes to mechanical or electrical systems ... 

unless they affect the usability of the building or 

facility. 

49 C.F.R. § 37.3. Therefore, “an ‘alteration’ within the 

meaning of the regulations is a change that affects the 

usability of the facility involved.” Kinney, 9 F.3d at 1072. 

“Usability” in this context has “an expansive, remedial 

construction” and “should be broadly defined to include 

renovations which affect the use of a facility, and not simply 

changes which relate directly to access.” Id. at 1072-73 

(internal citations and quotations marks omitted). SEPTA 

argued in the District Court that the replacement of the 

stairway at the 15th Street Courtyard and the elevator repair 

work at the City Hall Courtyard were not alterations, but 
9 

rather final acts of maintenance. As the District Court noted, 

however, replacing an unusable stairway with a usable one 

and extensively changing an inoperative escalator so that it 

operates again surely affects the “usability” of the locations 

they service. The complete replacement of a stairway or total 

overhaul of an escalator should also be considered 

“remodeling, renovation, rehabilitation [or] reconstruction” in 

the ordinary sense of those words. 

SEPTA has now abandoned the “final act of 

maintenance” argument and instead points to certain 

Americans with Disabilities Act Accessibility Guidelines 

(“ADAAG”) standards incorporated into the DOT 

regulations, which it contends further limit the types of 

construction which are “alterations” under the ADA.8

 It 

claims that the District Court did not give appropriate 

deference to these regulations, as mandated by Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984). In particular, SEPTA relies on an ADAAG 

provision which reads: 

 If an escalator or stair is planned or installed 

where none existed previously and major 

structural modifications are necessary for such 

installation, then a means of accessible vertical 

access shall be provided that complies with the 

applicable provisions. 

ADAAG § 4.1.6(1)(f). SEPTA argues that this indicates that 

“alterations,” at least with respect to stairs, includes only 

changes that involve “major structural modifications.” As it 

did not undertake “major structural modifications” of either 

the 15th Street or the City Hall Courtyards, it contends, it is 

not required to install an elevator in either location. 

We assume, and DIA does not dispute, that the DOT 

regulations should be given Chevron deference in this case. 

However, the courts owe no deference to SEPTA’s own

interpretation of these regulations, and, as the District Court 

concluded, SEPTA’s interpretation is too narrow. The ADA 

 8

 The relevant ADAAG standards are the 1991 version, 

codified at 49 C.F.R. Pt. 37, App. A. 
10 

is a remedial statute, meant to bring an end to discrimination 

against individuals with disabilities in all aspects of American 

life; it must be construed with all the liberality necessary to 

achieve such purposes. In our view, the construction carried 

out by SEPTA in both the 15th Street Courtyard and the City 

Hall Courtyard constituted “alterations” under the ADA, even 

without “major structural alterations.” Although ADAAG § 

4.1.6(1)(f) addresses one scenario in which an accessible 

means of vertical access must be provided, it does not clearly 

indicate that this is the only scenario in which such access 

must be provided. 

SEPTA’s reading is at odds with the otherwise broad 

accessibility mandate of 42 U.S.C. § 12147(a) and 49 C.F.R. 

§ 37.43 and the expansive definition of “usability” adopted by 

this Circuit. In Kinney, we held that even the resurfacing of a 

road through the laying down of a new layer of asphalt was 

an “alteration” sufficient to require that the road be made 

accessible through curb cuts, 9 F.3d at 1073-74; it cannot be 

that the much more substantial change of a complete 

replacement of a set of stairs or an escalator is not an 

“alteration” unless it is accompanied by major structural 

modifications. 

 The DOT regulations confirm this conclusion. 

SEPTA must “mee[t] the requirements of [49 C.F.R. § 37] 

and the requirements set forth in [the ADAAG].” 49 C.F.R. § 

37.9(a) (emphasis added). This language indicates that public 

entities must fulfill both § 37 and the ADAAG requirements. 

The DOT did not envisage the ADAAG by themselves to be 

an exhaustive statement of regulatory requirements, but rather 

to be a supplement to the requirements imposed by § 37. 

Meeting the requirements of Section 4.1.6(1)(f) is not, then, 

necessarily sufficient to meet the requirements of § 37, and it 

would be illogical to read Section 4.1.6(1)(f) of the ADAAG 

to radically curtail the broad mandate of § 37. 

Given that the ADA is to be liberally construed to 

effectuate its purpose of eliminating discrimination, we will 

not adopt SEPTA’s narrow interpretation of “alterations.” In 

our view, the construction carried out by SEPTA in both the 

15th Street Courtyard and the City Hall Courtyard constituted 
11 

“alterations” under the ADA, even though it did not entail 

“major structural alterations.” 

B. “Maximum extent feasible” 

The parties also differ over the meaning of the phrase 

“maximum extent feasible.” Again, this term is defined in the 

relevant DOT regulations: “the phrase [‘]to the maximum 

extent feasible[’] applies to the occasional case where the 

nature of an existing facility makes it impossible to comply 

fully with applicable accessibility standards ... .” 49 C.F.R. § 

37.43(b). DIA argues that “feasible” refers only to technical 

feasibility, relying on this definition’s lack of explicit 

reference to costs. SEPTA, in turn, argues that “feasible” 

must refer to economic feasibility, as well.9

 

We have never addressed the meaning of “maximum 

extent feasible” under the ADA as applied to alterations in 

public transit facilities. SEPTA’s position that “maximum 

extent feasible” must refer to economic as well as technical 

feasibility might be plausible if that language stood alone. 

However, the narrowness of the exception established in 49 

C.F.R. § 37.43(b), which contemplates that the infeasibility of 

making the altered portion of a facility will be only 

“occasional” and will arise from “the nature of an existing 

facility”—not from the budget limitations of a transportation 

authority, which must be reckoned with at all times—weighs 

in favor of DIA’s interpretation. 

In addition, both 42 U.S.C. § 12147(a) and 49 C.F.R. § 

37.43 do contain provisions for the consideration of cost in 

making public transit facilities accessible, but only in 

different sections establishing requirements for certain 

additional changes (e.g., to the bathrooms and drinking 

fountains) that must be made “to the maximum extent 

 9

 Although SEPTA has provided information that the costs 

of installing elevators at the two courtyards might be 

disproportionate to the cost of the rest of the construction 

projects there, it has not actually argued before us that the 

installation of the elevators was truly economically infeasible, 

nor has it explained how the Court would make such a 

determination. 
12 

feasible” if an area that serves a “primary function” is altered. 

The costs for those additional changes should not be 

“disproportionate.” See 42 U.S.C. § 12147(a); 49 C.F.R. § 

37.43(a)(2). The sections addressing “alterations” in general 

contain no such language. The omission of any reference to 

costs there, when they are mentioned in closely-related 

sections, indicates that the ADA and the DOT regulations 

define feasibility primarily with respect to technical, not 

purely economic, concerns.10 

The Second Circuit recently reached the same 

conclusion with respect to identical language in Title III of 

the ADA and the relevant federal regulations (specifically, 42 

U.S.C. § 12183 and 28 C.F.R. § 36.402(c)). Focusing on the 

language of the statute, it held that the ADA’s “‘maximum 

extent feasible’ requirement does not ask the court to make a 

judgment involving costs and benefits ... . The statute and 

regulations require that such facilities be made accessible 

even if the cost of doing so—financial or otherwise—is 

high.” Roberts v. Royal Atlantic Corp., 542 F.3d 363, 371 

(2d Cir. 2008). The reasoning of Roberts is sound and 

applicable in the Title II context as well. 

SEPTA also makes a more specific argument 

concerning the meaning of “maximum extent feasible” which 

relies on the interpretive appendix to 49 C.F.R. § 37. 

Appendix D states: 

 10 Technical infeasibility will likely, in practice, often 

overlap with particularly excessive costs; that is, the more 

technically difficult an alteration, the more expensive it is 

likely to be. But the ADA does contemplate that, in general, 

if a public entity cannot afford to make alterations to a public 

transit facility that include making the altered portions 

accessible, it should not make alterations at all. “Congress 

felt that it was discriminatory to the disabled to enhance or 

improve an existing facility without making it fully accessible 

to those previously excluded.” Kinney, 9 F.3d at 1073. 

Although this is a demanding requirement, it is consistent 

with the ADA’s nature as a far-reaching anti-discrimination 

statute. 
13 

The term ‘to the maximum extent feasible’ 

should be construed as not requiring entities to 

make building alterations that have little 

likelihood of being accomplished without 

removing or altering a load-bearing structural 

member unless the load-bearing structural 

member is otherwise being removed or altered 

as part of the alteration. 

49 C.F.R. Pt. 37 App. D. SEPTA interprets this as a 

limitation designed to prevent excessive expenditures on 

accessibility measures. It notes that it did not remove or alter 

any load-bearing structural members in the course of its work 

in either the 15th Street Courtyard or the City Hall Courtyard. 

Therefore, it argues, it was not “feasible” to install elevators 

in either location. 

This reading, too, is unpersuasive. The regulations 

provide that a public entity need not make altered portions of 

a facility readily accessible if doing so would require 

removing or altering a load-bearing structural member (unless 

the movement or alteration is called for by the alterations 

anyway). They do not state, as SEPTA argues, the converse: 

that the altered portions of a facility only need be made 

accessible if the alterations in question involve the drastic 

change of moving or altering a load-bearing member. And as 

SEPTA has not taken the position that installing an elevator 

in either location would require the removal or alteration of a 

load-bearing member, this provision of Appendix D does not 

apply on the present record. 

Therefore, SEPTA may not refuse to install elevators 

at the 15th Street Courtyard and the City Hall Courtyard 

solely because to do so would, allegedly, force SEPTA to 

incur significant costs. 

C. “Readily accessible” 

The parties also dispute the meaning of “readily 

accessible.” SEPTA argues that the 15th Street Courtyard is a 

part of Suburban Station, not of 15th Street Station, and thus, 

since the 15th Street Courtyard may be reached from street 

level by individuals in wheelchairs via one of the Suburban 
14 

Station elevators, it is already “readily accessible.”11 DIA 

argues that the 15th Street Courtyard is actually a part of 15th 

Street Station, and since the facility which it is a part of is not 

wheelchair-accessible, neither is the Courtyard. In addition, 

DIA argues that, even if the 15th Street Courtyard is part of 

Suburban Station, it is still not “readily accessible” via 

Suburban Station. 

The District Court did not make a finding as to which 

station the 15th Street Courtyard is a part of.12 Like the 

District Court, we need not address the question of which 

facility the 15th Street Courtyard belongs to because, either 

way, SEPTA must make it accessible. 

If we consider the 15th Street Courtyard Entrance to be 

part of Suburban Station, as SEPTA contends, it is still not 

“readily accessible.” Pursuant to ADAAG § 10.1, all 

transportation facilities must comply with the applicable 

provisions of §§ 4.1 through 4.35, §§ 5 through 9, and the 

applicable provisions of § 10 of the ADAAG. Through a 

circuitous regulatory route,13 the “new construction” 

 11 SEPTA does not argue that City Hall Courtyard is 

“readily accessible,” and so there is no need to engage in this 

analysis for that Courtyard. 

12 On the first appeal, we noted that the 15th Street 

Courtyard “undisputedly provides access to” the 15th Street 

Station, and assumed that it was an entrance to that station. 

Disabled in Action, 539 F.3d at 202 n.1. 

13 Section 10.1 of the ADAAG states that “[e]very station 

... shall comply with the applicable provisions of 4.1 through 

4.35 ... .” Section 4.1.6(1)(b) mandates that “if existing 

elements, spaces, or common areas are altered, then each such 

altered element, space, feature, or area shall comply with the 

applicable provisions of 4.1.1 to 4.1.3 Minimum 

Requirements (for New Construction).” Section 4.1.3(8) lays 

out requirements for the number of accessible entrances but 

those requirements are, in turn, modified by § 10.3.1, which 

says that, “[i]n lieu of compliance with 4.1.3(8), at least one 

entrance to each station shall comply with 4.14 [and be made 

accessible].” ADAAG § 10.3.1(2). 
15 

provisions for transportation facilities, found at ADAAG § 

10.3.1, permit a public transportation provider to avoid 

making an altered entrance accessible if at least one entrance 

to the affected station is already accessible. ADAAG § 

10.3.1(2). However, “[i]f different entrances to a station 

serve different transportation fixed routes or groups of fixed 

routes, at least one entrance serving each group or route shall 

[be made accessible].” Id. Here, there is no accessible 

entrance that serves the 15th Street Station or the MarketFrankford subway line—a different route than those serviced 

by Suburban Station, which serves commuter rail lines. Thus, 

even assuming that the 15th Street Courtyard Entrance is a 

part of Suburban Station, it nevertheless provides access to a 

different fixed route and therefore must be made accessible. 

If, on the other hand, the entrance at issue is a part of 15th 

Street Station, the alterations performed by SEPTA require 

that the entrance be made readily accessible since it is 

undisputed that 15th Street Station is not handicapped 

accessible.14 

Because neither the 15th Street Courtyard or the City 

Hall Courtyard is “readily accessible,” SEPTA violated Title 

II of the ADA and the RA by not making those portions of its 

facilities accessible when it undertook to make alterations at 

those locations. 

 14 SEPTA does not deny that the 15th Street Station is not 

“readily accessible.” Instead, SEPTA argues that “[e]ven if 

an elevator were installed at the 15th Street [Courtyard 

Entrance], a person in a wheelchair could not access 15th 

Street Subway Station” because there is no wheelchair access 

from the concourse to the subway platform. (BB at 38.) 

While SEPTA’s assertion is correct, the District Court already 

aptly addressed this issue, finding that the ADA is an 

“incremental statute.” (App. at 26.) According to the District 

Court, “[g]iven that eventually SEPTA will alter the stairway 

to the platform, triggering a requirement of additional 

accessibility, at that point, wheelchair-bound individuals will 

have an accessible exit waiting for them at the mezzanine 

level.” (Id. at 22-23.) Otherwise, to excuse public entities 

from complying with the accessibility requirements simply 

because they altered only a portion of a facility would 

undermine the intent of the ADA. 
16 

D. The City as necessary party 

Finally, SEPTA argues that, because it cannot install 

an elevator at City Hall Courtyard without the agreement of 

the City, the City is a necessary party to this suit. We may 

consider this issue despite its not being raised in the District 

Court, and we conclude that the City is not a necessary party. 

Finberg v. Sullivan, 634 F.2d 50, 55 (3d Cir. 1980). Under 

the Federal Rules, a party is “necessary” if, in its absence, (1) 

the court could not accord complete relief among the existing 

parties; or (2) the absent party claims an interest relating to 

the subject matter of the action so that disposing of the action 

in his absence would (i) impair its ability to adequately 

protect its interest, or (ii) leave an existing party susceptible 

to a substantial risk of incurring inconsistent obligations. Fed. 

R. Civ. P. 19(a). SEPTA bears the burden of showing why an 

absent party should be joined under Rule 19. Pittsburgh 

Logistics Sys., Inc. v. C.R. Eng., Inc., 669 F. Supp. 2d 613, 

618 (W.D. Pa. 2009). DIA claims SEPTA’s failure to assert 

this defense at an earlier stage of the proceedings renders it 

unfit for consideration on appeal. See Fed. R. Civ. P. 12(b)(7) 

(“Every defense to a claim for relief in any pleading must be 

asserted in the responsive pleading if one is required.”). 

SEPTA acknowledges its failure to include this defense in 

any prior motion but nevertheless urges us to conduct an 

independent analysis. 

While the law permits us to indulge SEPTA’s 

overtures and consider this Rule 19 issue for the first time on 

appeal, the parties’ lengthy history of silence on this issue 

weighs against adopting SEPTA’s position. We have written 

that Supreme Court jurisprudence compels us to “take steps to 

protect an absent party through consideration of the Rule 

19 issue, even when that issue was not presented to the 

district court nor raised by the parties to the appeal.” GTE 

Sylvania, Inc. v. Consumer Product Safety Comm’n, 598 F.2d 

790, 798 (3d Cir. 1979). However, the opinion from which 

we gleaned this obligation evinced genuine concern only for 

protecting an absent party “who of course had no opportunity 

to plead and prove his interest below.” Provident Tradesmen 

Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968). 
17 

SEPTA argues that upholding the grant of summary 

judgment will, as a practical matter, impair the City's ability 

to protect its interest in City Hall Courtyard. See Fed. R. Civ. 

P. 19(a)(1)(B)(i). However, though the City was a defendant 

in this case and was aware that it implicated access by 

individuals with disabilities to the City Hall Courtyard, it 

chose to settle with DIA. Although it surely must be aware of 

DIA’s current position with respect to the necessity of an 

elevator in City Hall Courtyard, it has not moved to intervene, 

nor offered any other objections which we are aware of. That 

neither the City nor SEPTA saw fit to raise this issue at an 

earlier stage of the proceedings militates against a finding that 

the City’s ability to protect its interest would be impaired 

were it not joined as a party. The City’s normal procedures in 

dealing with SEPTA construction projects that impinge upon 

City property, such as the process of submitting plans and 

obtaining required work permits, should be sufficient to 

protect its interests here. 

SEPTA also contends that any relief granted by the 

court to DIA would be “hollow” in the absence of the City’s 

joinder, see Gen. Refractories Co. v. First State Ins. Co., 500 

F.3d 306, 315 (3d Cir. 2007). Yet it does not actually claim 

that the City would refuse to permit construction at City Hall 

Courtyard, merely that the City’s ownership “would 

legitimately affect SEPTA’s ability to fulfill its obligations 

under the order.” Although this is very likely true, it would 

not render a judgment in favor of DIA “hollow”; it simply 

means that SEPTA will have to work with the City in 

complying with our decision, something the City has already 

agreed to do with respect to the 15th Street Courtyard. 

III. 

For the foregoing reasons, we will affirm the District 

Court=s grant of summary judgment in DIA’s favor. 

 
1 

Disabled in Action of Pennsylvania v. Southeastern 

Pennsylvania Transportation Authority, No. 09-3964 

JORDAN, Circuit Judge, concurring in part and dissenting in 

part 

I am fully in agreement with the majority’s analysis of 

the obligations SEPTA has incurred under the ADA and 

associated regulations by making alterations at the 15th Street 

Courtyard,1

 and, based on the precedential effect of those 

conclusions, I am strongly inclined to believe that they will 

compel the further conclusion that SEPTA bears the same 

obligations with regard to the City Hall Courtyard. I cannot 

join Section II.D of the opinion, however, because I believe 

that the City must first be made a party to this action under 

Federal Rule of Civil Procedure 19 before a decision 

regarding the City’s property can rightly be made. 

While SEPTA is free to begin installing an elevator at 

the 15th Street Courtyard, it is not free to do so at the City 

Hall Courtyard, which is owned by the City. As the Majority 

notes, SEPTA acknowledges the feasibility of installing an 

elevator at the City Hall Courtyard, but it does so only “so 

 1

Although the Majority’s analysis is confined to the ADA, 

it concludes that the same result is required by the 

Rehabilitation Act (“RA”). Given the close relationship 

between those two statutory schemes, see McDonald v. Com. 

of Pa., Dep’t of Public Welfare, 62 F.3d 92, 95 (3d Cir. 1995) 

(“Whether suit is filed under the Rehabilitation Act or under 

the Disabilities Act, the substantive standards for determining 

liability are the same.”), I do not doubt that is so, but it is not 

necessary to assume or decide that here. 
2 

long as it [has] sufficient access to the property.” (Maj. Op. 

at 4.) Access to the property is essential and, to be properly 

granted by a court order, such access must be preceded by the 

City’s having a seat at the litigation table. This seems selfevident. Ordering the construction of an elevator calls for a 

“permanent physical invasion” of the City’s property and 

“eviscerates the owner’s right to exclude others from entering 

and using [the] property – perhaps the most fundamental of 

all property interests.” Lingle v. Chevron U.S.A. Inc., 544 

U.S. 528, 539 (2005). I have searched in vain for an example 

of a court ordering such an invasion without the property 

owner being joined in the case. 

Nevertheless, DIA argues, and the Majority accepts, 

that the District Court can afford DIA complete relief at the 

City Hall Courtyard, even though doing so would require 

SEPTA to initiate construction on the City’s land. DIA 

implicitly acknowledges in its brief that the City might object 

to bulldozers and backhoes showing up on its property, but it 

suggests that, if the City were to bar SEPTA from making the 

required alterations, SEPTA could “assert a defense of 

impossibility to an effort by DIA to enforce the Court’s 

ruling.” (Answering Brief of Appellee at 48 n.18.) However, 

the very fact that the Court’s ruling could result in such an 

“impossibility” is why the City is, by the terms of Rule 19, a 

“required party” in this lawsuit. See FED. R. CIV. P. 19(a)(1) 

(“A person ... must be joined as a party if ... in that person’s 

absence, the court cannot accord complete relief among 

existing parties ... .”).2

 2 Being a “required party” under Rule 19 is contingent 

upon the party being “subject to service of process” and being 

a party “whose joinder will not deprive the court of subject-
3 

Shifting its tack, DIA, with the Majority in tow, 

breezes past the City’s fundamental interest in this dispute by 

asserting that the City is aware of the proposal to install an 

elevator at the City Hall Courtyard and has no objection to it. 

That may well be true; indeed one hopes that the City would 

be eager to assist in every way possible the remedying of 

inaccessibility problems on its property. But we are 

accustomed to having property owners declare their own 

interests and intentions rather than having others volunteer 

their land for construction projects. That is why Rule 19, 

again by its exact terms, requires the joinder of someone who, 

as a practical matter, would have his ability to protect his 

interests impeded or impaired if not made a party. FED. R.

CIV. P. 19(a)(1)(B)(i). Making the point more powerfully, the 

Rule goes on to say that “[i]f a person has not been joined as 

required, the court must order that the person be made a 

party.” FED. R. CIV. P. 19(a)(2) (emphasis added). It does 

not say, “add that person if convenient or if you don’t already 

know what the person really wants.” It says, 

straightforwardly, that “the court must order that the person 

be made a party.” 

In trying to understand what may be motivating the 

willingness to brush aside the City’s obvious interest in a 

construction project on City land, I am left to conclude that 

there is a concern over further delay in SEPTA’s beginning 

the already long-delayed start of installing necessary 

accommodations, and perhaps there is some concern that 

 

matter jurisdiction,” conditions which the City satisfies. FED.

R. CIV. P. 19(a)(1). 
4 

SEPTA raised the issue late as a yet another strategic move 

for procrastination. Even if those concerns are well-founded, 

however, they do not dispose of the City’s rights. “A person 

may be added as a party at any stage of the action on motion 

or on the court’s initiative ... and a motion to dismiss, on the 

ground that a person has not been joined and justice requires 

that the action should not proceed in his absence, may be 

made as late as the trial on the merits ... .” Advisory 

Committee’s Notes on FED. R. CIV. P. 19, 28 U.S.C.App., p. 

134. 

Nor can the City’s interests be casually dismissed by 

saying, as the Majority does, that, “[a]lthough [the City] 

surely must be aware of DIA’s current position with respect 

to the necessity of an elevator in City Hall Courtyard, it has 

not moved to intervene, nor offered any objections which we 

are aware of.” (Maj. Op. at 17.) That statement implies, 

without record support, that the City somehow waived its 

rights to protect its property interests in court. The City was 

added as a party to this case in 2003 and settled with DIA in 

2004. If anything, that history demonstrates that the City left 

the case only when it understood that its rights were no longer 

implicated. It does not demonstrate that the City should have 

known that its rights would be implicated once again.3

 

 3

 In its settlement agreement with DIA, the City 

acquiesced to construction of an elevator at the 15th Street 

Courtyard and agreed to permit construction of an elevator at 

Dilworth Plaza to service City Hall Station, as had “been 

discussed by SEPTA and the Plaintiffs in conceptual form for 

years.” (App. at 89-90.) But Dilworth Plaza is not the City 

Hall Courtyard, the location where DIA currently seeks to 

have an elevator installed to service City Hall Station. While 
5 

It is, moreover, somewhat ironic to observe that we are 

unaware of the City having any objection to plans for its land, 

since an important reason why a district court must join 

required parties is so that such parties have the opportunity to 

voice objections. See Luxliner P.L. Export, Co. v. 

RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993) (“Before a 

party may be deprived of a property interest, due process 

requires, at a minimum, notice and an opportunity to be 

heard.”). We approach the problem from the wrong direction 

when our first reaction is to say to a property owner, in effect, 

“you failed to intervene at the peril of your rights,” rather 

than saying to the litigants, “you failed to add a required party 

at the peril of lengthening these proceedings while that 

party’s rights are considered.” 

DIA maintains, and the Majority agrees, that the City’s 

normal procedures in dealing with construction projects, such 

as requiring work permits, should be sufficient to protect its 

interests here. Once again, though, this seems a painful 

stretch to avoid dealing with the reality that the City is a 

required party. The City’s permitting procedures do not 

provide it with a voice in the District Court by which it can 

object to orders directly affecting its interest in its own land. 

 

the City and SEPTA have engaged in discussions regarding 

compliance with the District Court’s order, the record does 

not reflect that any agreement was reached on the precise 

location for the installation of elevators at the City Hall 

Courtyard. Indeed, the Statement of Compliance that SEPTA 

filed with the District Court says that the “City prefers 

installation of elevators at locations other than those directed 

by the Court.” (App. at 1163.)
6 

The permitting process is, as far as I know (and this is not an 

issue that has been briefed), designed simply to ensure that 

construction in the City is completed in accordance with 

applicable sections of the Philadelphia Code, e.g., the City’s 

building code, fire code, and electrical code. Those 

procedures do not afford the City the opportunity to address 

to the District Court any concerns it may have about where, 

when, or how an elevator will be installed on City property. 

In any event, concern about significant delay is 

ultimately a matter of pure speculation, and an oddly 

contradictory bit of speculation at that. If, as DIA and the 

Majority assume, the City has no problem at all with the 

construction of the elevator on City land, then adding the City 

as a party should involve little or no delay at all, even as it 

preserves the principles of due process that are inherent in 

Rule 19 and which long antedate the Rules of Civil 

Procedure. Cf. Torrence v. Shedd, 144 U.S. 527, 532 (1892) 

(holding that, in a case involving interests in real property, 

since recovery required establishing a title that would affect 

other interested parties, those parties had to be joined). And 

if, for some reason, the City were to raise objections, the able 

District Court can require that those objections be dealt with 

on an expedited basis, as may be appropriate. 

I therefore concur in the opinion of the Majority that 

the construction of the elevator at the 15th Street Courtyard is 

called for by operative federal law, but I would order the 

joinder of the City so that it can adequately voice its position 

on how that conclusion should affect its property interests in 

the City Hall Courtyard.