1 20

- 315 Vega

- Ruiz v. Northwell Health 

## United States Court of Appeals **For the Second Circuit**

A UGUST T ERM , 2020 Argued: August 18, 2020 Decided: March 24, 2021 Docket No. 20

- 315

____________________

L ISSETTE V EGA
- R UIZ ,

Plaintiff

- Appellant,

— v . — N ORTHWELL H EALTH , ( F ORMERLY N ORTH S HORE
- L ONG I SLAND J EWISH H EALTH S YSTEM ), L ONG I SLAND J EWISH V ALLEY S TREAM , L ONG I SLAND J EWISH M EDICAL C ENTER , Defendants

- Appellees

.

____________________ Before: N EWMAN and P OOLER , Circuit Judges
. 1

____________________ Plaintiff

- a ppellant Lissette Vega

- Ruiz appeals from a judgment of the United States District Court for the Eastern District of New York (Hurley, J .) entered on January 14, 2020 granting d efendants

- a ppellees’ Rule 12(b)(6) motion

1 Circuit Judge Peter W. Hall, originally a member of the panel, died before the filing of this opinion ; the appeal is being decided by the remaining members of the panel, who are in agreement. See 2d Cir. IOP E(b).2 to dismiss based on plaintiff’s failure to time ly file her complaint

. We hold that Vega

- Ruiz’s disability discrimination claim arises under the A ffordable C are A ct for the purposes of 28 U.S.C. § 1658 (a) , which grant s a four

- year catchall statute of limitations period for all Acts of Congress enacted after December 1, 1990 , and thus the district court erred in applying a three

- year statute of limitations period

. Vega

- Ruiz’s claim was timely. Accordingly, we VACATE and REMAND

.

____________________ A NDREW R OZYNSKI , Eisenberg & Baum, LLP, New York, NY, for Plaintiff

Appellant

. D ANIEL J. L A R OSE , Collazo & Keil LLP ( John P. Keil , on the brief ), New York, NY, for Defendants

- Appellees

.

____________________ Per Curiam : Plaintiff

- appellant Lissette Vega

- Ruiz appeals from a judgment of the United States District Court for the Eastern District of New York (Hurley, J .) entered on January 14, 2020, granting d efendants

- appellees’ Federal Rule of Civil Procedure 12(b)(6) motion to dismiss on statute of limitations grounds. In this appeal, we decide whether Vega

- Ruiz’s disability discrimination claim arises under the Patient Protection and Affordable Care Act (“ACA”) , Pub. L. 111

– 148, 124 Stat 119 (2010) , for the purposes of 28 U.S.C. § 1658(a), which provides a four

year catchall statute of limitations period for all Acts of Congress enacted after December 1, 1990. If her claim arises under the ACA, the district court erred in its dismissal

. If , however, her cla im arises under the Rehabilitation Act, Pub. L. No.3 93

– 112, 87 Stat. 355 (1973) , a three

- year statute of limitations period applies , and the district court did not err in dismissing her claim

. For the reasons described below, we hold that Vega

- Ruiz’s clai m arose under the ACA and therefore was timely. B ACKGROUND Vega

- Ruiz is “profoundly deaf,” limit ing her English proficiency and her ability to communicate by reading lips. A pp’x 6
. Vega

- Ruiz communicates primarily through American Sign Language (“ASL”)

. On October 13, 2015, Vega

Ruiz accompanied her brother to Long Island Jewish Valley Stream , a facility operated by Northwell Health (collectively , “ Northwell ” ) , as his healthcare proxy for a scheduled surgery. During her brother’s visit, Vega

- Ruiz requested an ASL interpreter in order to fulfill her dut ies as a proxy. Instead, Northwell provided a Spanish

- speaking language interpreter who communicated to Vega

- Ruiz thro ugh written notes and lip reading. Three years and three months later, on January 28, 2019, Vega

- Ruiz filed a complaint against defendants alleging disability discrimination under the ACA, specifically 42 U.S.C. § 18116(a)

. On January 14, 2020, the distri ct court dismissed the case for failure to state a claim , concluding that Vega

- Ruiz’s claim was4 untimely

. The district court reasoned , “though the complaint formally alleges a violation of the ACA, Plaintiff’s claim is made possible by the Rehabilitation Act

. ” Vega

- Ruiz v. Northwell Health , 19

- cv - 0537 (DRH) (AYS), 2020 WL 207949, at *3 (Jan. 14, 2020)
. The district court concluded that the claim was “in effect, a Rehabilitation Act claim” to which New York’s three

- year statute of limitations period for personal injury actions appl ied

— a period that expired before Vega

Ruiz’s filing. Id . at *4. D ISCUSSION Vega

- Ruiz argues that our inquiry should rely solely on the statutory text of both the ACA and Section 1658 because: (1) she raised a claim under the ACA ; and (2) the ACA was enacted after December 1, 1990 and does not include a statute of limitations period , thus triggering § 1658’s four

- year catchall statute of limitations period

. In contrast, Northwell argues that , beca use Vega

- Ruiz’s claim relies on a portion of the ACA that borrows enforcement mechanisms from the Rehabilitation Act, it is not one “arising under” a post
- 1990 statute

— rendering § 1658’s four

- year limitations period inapt
. Appellee Br. 7 , 11

- 12 . Before Congress’ enactment of Section 1658, if a federal statute lacked a limitations period, federal courts looked to the “ most appropriate or analogous5 state statute of limitations. ” Morse v. Univ. of Vermont , 973 F.2d 122, 125 (2d Cir. 1992) (citing Goodman v. Lukens Steel Co. , 482 U.S. 656, 660 (1987) )
. The Rehabilitation Act lack s an express statute of limitations; courts thus apply the limitations period of a state’s personal

- injury laws. Id. at 127. In New York, this period is three years. Bates v. Long Island R. R. Co. , 997 F.2d 1028, 1037 (2d Cir. 1993)
. In 1990, Congress enacted Section 1658 to simplify the previously arduous task of determining which limitations period to apply to an “ ’ Act of Congress ’ ” that did not contain a statute of limitations

. 2 Jones v. R.R. Donnelly & Sons Co. , 541 U.S. 369, 379

– 8 2 (2004) ( quoting 28 U.S.C. § 1658(a))
. With Section 1658, Congress created a “uniform federal statute of limitations” that applies when a f ederal statute fails to set its own limitations period. Id. at 380
. Section 1658 provides a four

- year catchall limitations period for claims arising under “Acts of Congress” in effect after December 1, 1990 that do not specify a statute of limitations

. See 28 U.S.C. § 1658(a) (“Except as otherwise provided by law, a civil action arising under

2 The practice of borrowing state statutes of limitations created “a number of practical problems,” including: “It obligates judges and lawyers to determine the most analogous state law claim; it imposes uncertainty on litigants; reliance on varying state laws results in undesirable variance among the federal courts and disrupts the development of federal doctrine on the suspension of limitation periods.” H.R. Rep. No. 101

– 734, p. 24 (1990) (internal quotation marks omitted).6 an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.” ). The Supreme Court has interpreted Section 1658’s “arising under” language broadly , stating “[t]he history that led to the enactment of § 1658 strongly supports an interpretation that fills more rather than less of the void that has created so much unnec essary work for federal judges.” Jones , 541 U.S

. at 380. The Jones Court concluded that Section 1658’s four

- year limitations period applies just as much to an “amendment to an existing statute” as it does to a “new, stand

- alone statute.” Id. at 381. “What matters,” the Court explained, “is the substantive effect of an
enactment

— the creation of new rights of action and corresponding liabilities

— not the format in which it appears in the Code.” Id. In other words, “ a cause of action arises und er an Act of Congress enacted after December 1, 1990

— and therefore is governed by § 1658’s [four]

- year statute of limitations

— if the plaintiff’s claim against the defendant was made possible by a post

- 1990 enactment.” Id. at 382 ( alteration and internal q uotation marks omitted)

. 3

3 In Jones , African

- American e mployees brought a class action against their former employer for discrimination under § 1981 as amended by the Civil Rights Act of 1991. Jones , 541 U.S. at 371

– 72. The Seventh Circuit had found that, because the claim arose under the unamended pre

- 1990 Act of Congress, § 1981, the federal four

- year catchall limitations period did not apply

. Id. at 374. The Supreme Court reversed and remanded, id. at 385, holding that “in this case, petitioners’ hostile work environment, wrongful termination, and failur e to transfer claims ‘ar[ose] under’7 To apply the “made possible” standard here, we must look to the Rehabilitation Act, the ACA, and the relationship between them in the context of this cause of action. The Rehabilitation Act applies standards in line with the Americans with Disabilities Act ( “ ADA ” ). See McElwee v. Cnty. of Orange , 700 F.3d 635, 640 (2d Cir. 2012)

. The ADA distinguishes between standards required for public entities ( Title II ), 42 U.S.C. § 12131, and those required for “ public accommodations ” (Title III), such as the hospital in question , 42 U.S.C. § 12181 (7) (F)
. Where Title II applies, an entity must give “primary consideration” to the kind of aid requested by a person with a communication disability , though the “type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual.” 28 C.F.R. § 35.160(b)(2)

. Giving p rimary consideration means that a Title II entity must “honor the person ’ s choice, unl ess it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden.” U.S. Dep’t of Justice, Civil Rights Div., Disability Rights Sec tion, ADA Requirements, Effective
the 1991 Act in the sense that petitioners’ causes of action were made possible by that Act,” id . at 383 (brackets in original).8 Communication, https://www.ada.gov/effective

- comm.pdf (Jan. 2014) (hereinafter “DOJ, ADA Requirements”) , at 6 ; accord 28 C.F.R. § Pt. 35, App. A. Under Title III , however, entities are only “ encouraged to consult with the person with a disability to discuss what aid or service is appropriate.” DOJ, ADA Requirements at 6 (emphasis omitted)

. Put simply , Title II I entities are not obligated to honor an individual’s choice of aid. See 28 C.F.R. § 36.303 (c)(1)(ii) (“ A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with th e public accommodation, provided that the method chosen results in effective communication. ”); 28 C.F.R. § Pt. 36, App. C (“ Congress did not intend under [T] itle III to impose upon a public accommodation the requirement that it give primary consideration t o the request of the individual with a disability. . . . [T] he Department [of Justice] finds that strongly encouraging consultation with persons with disabilities, in lieu of mandating primary consideration of their expressed choice, is consistent with co ngressional intent. ” (emphasis added)).9 The ACA diverges from the Rehabilitation Act in that the ACA does not distinguish between Title II public entities and Title III public accommodations

. 4 I nstead, the ACA applies Title II requirements to all defendants

. See 45 C.F.R. § 92.102 (a) (“ Any entity operating or administering a program or activity under this part shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with other s in such programs or activities, in accordance with the standards found at 28 CFR 35.160 through 35.164. ”). 5 In other words , t he ACA extends “primary consideration” to

4 Both parties agree, however, that the ACA borrows enforcement mechanisms from the Rehab ilitation Act: “The enforcement mechanisms provided for and available under [the Rehabilitation Act] shall apply for purposes of violations of this subsection.” 42 U.S.C. § 18116(a). Rehabilitation Act enforcement mechanisms include that persons discrimina ted against may seek injunctive relief, damages, etc.; that the Attorney General may investigate claims and undertake periodic compliance reviews; and that private parties and/or the Attorney General may bring civil suits. 42 U.S.C. §§ 12133, 12188.

5 At the time of the alleged discrimination, proposed rules

— now in effect

— had been developed regarding a change in standards applied to disability discrimination claims under the ACA. The rules were proposed on September 8, 2015 and went into effect July 18, 2016. See U.S. Dep’t of Health & Human Servs., Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54172 (proposed Sept. 8, 2015)

. Although those 2016 rules were amended in August 2020, the rules relevant to this appeal were not substantively changed. See U.S. Dep’t of Health & Human Servs., Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Author ity, 85 F ed. R eg. 37160

- 01 (2020); compare 45 C.F.R. § 92 .202 (2016 Rule) with 45 C.F.R. § 92.102 (2020 Rule). Generally, we recognize that proposed agency regulations and interpretations carry some persuasive weight. See Skidmore v. Swift & Co. , 323 U. S. 134, 140 (1944) (“The weight of such a judgment in a particular case will depend upon the thoroughness evident in [the proposed rules’] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those fa ctors which give it power to persuade, if lacking power to control.”); see also De La Mota v. United States Dep’t of Educ. , 412 F.3d 71, 79 (2d Cir. 2005) (“The weight we accord [to a proposed agency interpretation] is determined through Skidmore10 individuals seeking services at Title III public accommodations

. See 28 C.F.R. § 35.160(b)(2)

. The issue here is which statute of limitations period to apply to Vega

- Ruiz’s claims. 6 We conclude that a plaintiff bringing a claim under the ACA presents a different case than a plaintiff alleging the same harm under the Rehabilitation Act. Although Northwell argues for a narrow reading of Section 1658’s “aris ing under” language and contends that the Rehabilitation Act’s three

- year limitations period applies to Vega

- Ruiz’s claim , t he Supreme Court has foreclosed such a vi ew, holding that a narrow reading of “aris ing under” would “subvert[] [Congress’s] goal by restricting § 1658 to cases in which the plaintiff’s cause of action is based solely on a post

– 1990 statute that establishes a new cause of action without

analysis. ”); Callum v. CVS Health Corp. , 137 F. Supp. 3d 817, 850 ( D.S.C. 2015) (regarding “[t]he weight the Court may afford the preamble and proposed regulations”). While this case is not wholly dependent upon the distinctions between the Rehabilitation Act and the ACA, the proposed regulations that took effect after Vega

- Ruiz’s alleged harm are persuasive. The streamlining of treatment afforded defendant

- entities is consistent with the existing framework of the Rehabilitation Act and has since been adopted as la w. It is not unreasonable to give the then

- proposed, now

- realized distinctions between the Rehabilitation Act and the ACA some weight as we contemplate Vega

- Ruiz’s appeal.

6 A recent district court case from the Eastern District of Tennessee, Tomei v. P arkwest Med. Ctr. , No. 19

- CV

- 00041 (E.D. Tenn. June 10, 2020) , discussed by the parties in their F ederal R ule of A ppellate P rocedure 28(j) letters, decided the statute of limitations issue in favor of a four

- year statute of limitations period and in line with the reasoning of the court in Palacios v. MedStar Health, Inc. , 298 F. Supp. 3d 87 (D.D.C. 2018 ) (applying § 1658’s four

- year limitations period to an ACA discrimination case).11 reference to preexisting law.” Jones , 541 U.S. at 380

– 81 (internal quotation marks omitted). Congress, in enacting Section 1658, sought to avoid the precise situation in which we find ourselves today

— trying to untangle competing statutes of limitations where the federal statute on which plaintiff’s claim is based lacks its own limitations period

. See Jones , 541 U.S. at 3 82
. Vega

- Ruiz’s disability claim is “made possible by” the ACA because the ACA changed Northwell’s obligation in this context; the ACA sub jected Northwell to the “primary consideration” obligation where it had previously been subjected to the lesser “encouraged to consult” obligation

. Id . at 3 81

– 82. We therefore must look to Section 1658 and apply a four

- year statute of limitations period to Vega

Ruiz’s claim. Her claim is timely. A ccordingly , we VACATE and REMAND to the district court for further proceedings consistent with this opinion

.