United States Court of Appeals 

For the First Circuit 

No. 15-1327 

ESTHER MERCADO, 

Plaintiff, Appellant, 

v. 

COMMONWEALTH OF PUERTO RICO; SUPREME COURT OF PUERTO RICO; 

OFICINA DE ADMINISTRACIÓN DE TRIBUNALES; and ADMINISTRACIÓN DE 

SERVICIOS DE SALUD MENTAL Y CONTRA LA ADDICIÓN, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge] 

Before 

Lipez, Hawkins, and Barron, 

Circuit Judges. 

Juan H. Saavedra Castro for appellant. 

Rosa Elena Pérez-Agosto, Assistant Solicitor General, with 

whom Margarita Mercado-Echegaray, Solicitor General, was on brief, 

for appellees Commonwealth of Puerto Rico, Supreme Court of Puerto 

Rico, and Oficina de Administración de Tribunales. 

Michael Craig McCall, with whom Luis Pabón Roca and Clarisa 

Sola Gómez were on brief, for appellee Administración de Servicios 

de Salud Mental y Contra La Addición. 

 

 Of the Ninth Circuit, sitting by designation. 
February 29, 2016 
- 3 - 

BARRON, Circuit Judge. Esther Mercado sued the 

Commonwealth of Puerto Rico and three other Puerto Rico 

governmental entities under Title II of the Americans with 

Disabilities Act ("ADA"). She alleged that they had denied her 

access to public services and discriminated against her because 

she was "regarded as" having a physical or mental impairment within 

the meaning of the ADA. 42 U.S.C. §§ 12102, 12132. The only 

question that we must decide is whether Mercado brought her suit 

too late. And the answer to that question turns on whether the 

limitations period set forth in 28 U.S.C. § 1658 applies to her 

case. 

That provision establishes a four-year, "catch-all" 

limitations period for statutes that, like the ADA, do not set 

forth their own limitations period. But the catch-all period 

applies only to actions "arising under" a federal statute enacted 

after December 1, 1990, the date on which § 1658 became law. The 

parties agree that if that four-year, catch-all limitations period 

does apply here, then Mercado's suit was timely filed. Otherwise, 

Mercado concedes that Puerto Rico law would supply the limitations 

period, that the applicable period under Puerto Rico law would 

only be one year, and that her suit would have been filed too late. 

The District Court concluded that Mercado's "regarded 

as" claims did not "aris[e] under" a federal statute enacted after 

December 1, 1990, because the ADA was passed prior to that date. 
- 4 - 

Thus, the District Court applied the one-year Puerto Rico statute 

of limitations and dismissed her suit as time-barred. We conclude, 

however, that § 1658's limitations period does apply here because 

Mercado's legal claims were made possible by the 2008 amendments 

to the ADA codified in the ADA Amendments Act of 2008 ("the 

ADAAA"). We thus reverse the District Court's order of dismissal. 

I. 

Mercado initially filed her complaint in federal court 

on August 14, 2013, before filing an amended complaint on March 1, 

2014. [Dkt Nos. 1, 18]. The amended complaint (which we will refer 

to as "the complaint" from here on out) names the Commonwealth of 

Puerto Rico, the Supreme Court of Puerto Rico, the "Oficina de 

Administración de Tribunales," and the "Administración de 

Servicios de Salud Mental y Contra la Addición" as defendants. 

[Dkt. No. 18]. 

The complaint alleges that the defendants subjected 

Mercado to involuntary institutional confinement by ordering her 

committed to a psychiatric hospital without giving her an 

opportunity to be heard. [Am. Compl. ¶¶ 4.1-4.4, 5.7]. The 

complaint further alleges the defendants violated Title II of the 

ADA because, in so confining her, they discriminated against her 

and denied public services to her "by reason of her disability." 

[Am. Compl. ¶¶ 5.5, 5.7, 5.9, 6.3]. 
- 5 - 

The complaint sets out what it identifies as three 

separate causes of action. The first two are for damages based on 

discrimination or denial of public services under Title II of the 

ADA. [Am. Compl. ¶¶ 5.1-5.11, 6.1-6.3].1 The last is for an 

injunction ordering Puerto Rico to devise a system guaranteeing 

counsel, as well as notice and the right to be heard, to any 

disabled person who faces involuntary confinement in a psychiatric 

hospital. [Am. Compl. ¶¶ 7.1-7.6]. 

The complaint does not allege that Mercado had a 

"disability" in the sense that she had what the ADA refers to as 

an "impairment." See 42 U.S.C. §§ 12102(1)(A). Nor does the 

complaint allege that she was discriminated against because she 

had such an impairment. Instead, the complaint alleges that the 

defendants discriminated against Mercado "by reason of" the fact 

that she was "regarded as" having a physical or mental impairment 

within the meaning of the ADA. See id. §§ 12102(1)(C), 12132.2

In pleading "regarded as" discrimination claims under 

the ADA, the complaint alleges that Mercado had a "disability" 

 1 The complaint also recites, within the two causes of action 

for damages, violations of the Fourteenth Amendment's Due Process 

Clause. But Mercado has not challenged the District Court's 

dismissal of her Fourteenth Amendment claims, and so we will not 

address that dismissal. 

2 The parties do not separately address this request for 

injunctive relief in their arguments to us. We thus treat this 

request as pleading "regarded as" discrimination, just like the 

other two "causes of action" identified in the complaint. 
- 6 - 

within the meaning of the ADA "[b]y virtue of the [ADA] Amendments 

Act of 2008, and changes in definition of the term 

'disability' . . . because defendants regarded [her] as having a 

major 'mental impairment.'" [Am. Compl. ¶¶ 4.19, 5.6]. The 2008 

amendments altered the ADA by, among other things, stating that 

[a]n individual meets the requirement of 'being regarded 

as having such an impairment' if the individual 

establishes that he or she has been subjected to an 

action prohibited under this chapter because of an 

actual or perceived physical or mental impairment 

whether or not the impairment limits or is perceived to 

limit a major life activity. 

ADA Amendments Act of 2008, Pub. L. No. 110-325, sec. 4(a), § 

3(3)(A), 122 Stat. 3553, 3555 (codified at 42 U.S.C. § 

12102(3)(A)). 

The defendants moved to dismiss the complaint. They 

argued that a one-year statute of limitations applied to Mercado's 

claims under Puerto Rico law and that she had not filed within 

that period. [Dkts. No. 29, 30]. Mercado opposed the motion. 

She did so solely on the ground that her claims' dependence on the 

2008 amendments to the ADA made the four-year, "catch-all" period 

in § 1658, rather than the one-year limitations period under Puerto 

Rico law, applicable to her suit. [Dkt. No. 40 (citing Jones, 541 

U.S. at 382)]. 

The District Court rejected Mercado's argument. The 

District Court concluded that her claims "would have been 

actionable under the original provisions of the ADA," Mercado v. 
- 7 - 

Puerto Rico, 86 F. Supp. 3d 46, 49 (D.P.R. 2015), and thus that 

§ 1658's limitations period did not apply. Because the District 

Court agreed with the defendants that, under Puerto Rico law, a 

one-year statute of limitations applied to Mercado's claims and 

that she had not complied with it, the District Court dismissed 

her complaint as time-barred. Id. at 49-50. 

On appeal, Mercado does not contest the District Court's 

ruling that the one-year Puerto Rico statute of limitations would 

apply to her suit if the four-year period established by § 1658 

does not apply in its stead. Nor does she contest that her suit 

was not filed within that one-year time period. Rather, she 

challenges only the District Court's determination that § 1658's 

four-year limitations period does not apply. And so that is the 

only issue that we address. 

II. 

The question that we must decide is one of statutory 

interpretation, for which our review is de novo. Highmark Inc. v. 

Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014). 

But the question is not one that we answer on a blank slate. 

Rather, in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 

(2004), the Supreme Court interpreted the meaning of the key phrase 

in § 1658: "a civil action arising under an Act of Congress." We 

thus begin by describing Jones in more detail. We then explain 
- 8 - 

why, in light of Jones, we conclude that the four-year limitations 

period set forth in § 1658 applies to Mercado's claims. 

A. 

In Jones, the Court explained that many federal statutes 

do not set forth their own limitations period and that, in 

response, courts had developed the "settled practice" of borrowing 

state statutes of limitations to fill the "void." Id. at 377.3 

Jones recognized, however, that this practice had "generated a 

host of issues that required resolution on a statute-by-statute 

basis" and, as a result, had "spawned a vast amount of litigation." 

Id. at 377-78. For example, Jones noted that in the course of 

undertaking such gap filling, courts had confronted a range of 

difficult issues. Courts were required to decide, among other 

things, from which state the limitations period should be borrowed, 

which limitations period should be borrowed from that state, and 

whether federal or state law governed certain procedural matters 

related to the calculation of that period -- such as "when an 

 3 We have described this practice, which is still used when 

§ 1658 does not apply, as one that requires the courts to identify 

"the most analogous statute of limitations in the state where the 

action was brought." Greenwood ex rel. Estate of Greenwood v. 

N.H. Pub. Utils. Comm'n, 527 F.3d 8, 13 (1st Cir. 2008). Mercado 

does not challenge the District Court's determination that the 

"most analogous" Puerto Rico statute of limitations "is the oneyear term set for tort actions by Article 1868 of the Civil Code, 

P.R. Laws Ann. tit. 31 § 5298(1)." See Mercado v. Puerto Rico, 86 

F. Supp. 3d 46, 49 (D.P.R. 2015). 
- 9 - 

action was 'commenced,' or when service of process had to be 

effectuated." Id. at 378-79. 

The Court emphasized that Congress was "keenly aware" of 

the difficulties federal courts faced in filling the statute-oflimitations "void." Id. at 380. The Court thus concluded that 

the "central purpose" of § 1658, which Congress enacted on December 

1, 1990, was to reduce the need for courts to engage in such 

litigation-inducing work. Id. 

In light of this legislative purpose, the Court 

explained that the phrase "a civil action arising under an Act of 

Congress" in § 1658 should be interpreted in a manner "that fills 

more rather than less of the void that has created so much 

unnecessary work for federal judges." Id. The Court thus declined 

to construe § 1658's text so narrowly that it would apply only to 

claims that are based on "post–1990 statute[s] that establish[] a 

new cause of action without reference to preexisting law." Id. at 

381 (citations and internal quotation marks omitted). 

But the Court also agreed that § 1658 should not be 

interpreted in a way that "disrupt[ed] the settled expectations" 

of litigants. Id. And so the Court rejected a construction of 

§ 1658 "under which any new amendment to federal law would suffice 

to trigger the 4–year statute of limitations," id. at 382 (emphasis 

added), no matter how inconsequential that amendment might be to 

the plaintiff's ability to bring the claims at issue. 
- 10 - 

Having dispensed with each of these polar-opposite 

interpretations of the scope of § 1658, the Court then described 

the course that it concluded Congress had actually steered. 

According to the Court, an enactment that "creates a new right to 

maintain an action" is one under which a civil action may "aris[e]" 

within the meaning of § 1658. Id. at 382. And the Court noted 

that "Congress routinely creates new rights of action by amending 

existing statutes, and altering statutory definitions, or adding 

new definitions of terms previously undefined, is a common way of 

amending statutes." Id. at 381 (alterations, citations, and 

internal quotation marks omitted). 

No matter the form an enactment takes, though, the Court 

made clear that "[w]hat matters is the substantive effect of an 

enactment -- the creation of new rights of action and corresponding 

liabilities." Id. Thus, Jones held, a claim that "necessarily 

depend[s]" on such an enactment is a claim that "was made possible 

by" a post-December 1, 1990 enactment and thus a claim for which 

§ 1658 supplies the limitations period. Id. at 382, 384. 

The Court explained that it was "not persuaded that any 

guess work is required to determine whether the plaintiff has 

alleged a violation of the relevant statute as it stood prior to 

December 1, 1990, or whether her claims necessarily depend on a 

subsequent amendment." Id. at 384 (citations and internal 

quotation marks omitted)). The Court did acknowledge that such a 
- 11 - 

determination could be "particularly complicated in cases in which 

there was a split of authority regarding the scope of the original 

statute." Id. at 384 n.18. A case of that type could require a 

court "to determine whether the amendment clarified existing law 

or created new rights and liabilities." Id. But the Court 

concluded that such an analysis was "hardly beyond the judicial 

ken." Id. After all, the Court noted, "[c]ourts must answer 

precisely the same question when deciding whether an amendment may 

be applied retrospectively." Id. 

B. 

The Jones Court then applied § 1658 to the facts of that 

case. The Jones plaintiffs had brought a number of race 

discrimination claims under 42 U.S.C. § 1981, which was originally 

enacted in 1866. That statute protects, among other things, the 

right "to make and enforce contracts" free from discrimination on 

the basis of race. Id. at 372 (quoting 42 U.S.C. § 1981). 

Section 1981 does not contain its own limitations 

period, however, and the two-year state-law limitations period 

that would have otherwise applied in Jones had already expired by 

the time that the Jones plaintiffs filed suit. Id. The Jones 

plaintiffs nonetheless contended that their claims were not timebarred. Id. The plaintiffs argued that the four-year limitations 

period established by § 1658 applied to their claims due to the 
- 12 - 

relationship between those claims and the changes that had been 

made to Section 1981 after § 1658's enactment. Id. at 372-73. 

 Specifically, in 1989, the Court had ruled in another 

case that § 1981 "did not protect against . . . conduct that 

occurred after the formation of the contract." Id. (citing 

Patterson v. McLean Credit Union, 491 U.S. 164 (1989)). But, the 

plaintiffs noted, in 1991 (and thus after the enactment of § 1658), 

Congress amended § 1981 to define the term "make and enforce 

contracts" to include the "termination of contracts, and the 

enjoyment of all benefits, privileges, terms, and conditions of 

the contractual relationship." Id. at 373 (quoting 42 U.S.C. § 

1981(b)). As a result, this amendment "enlarged the category of 

conduct that is subject to § 1981 liability" to include postcontract-formation discriminatory conduct like that alleged by the 

Jones plaintiffs. Id. at 383 (quoting Rivers v. Roadway Express, 

Inc., 511 U.S. 298, 308 (1994)). 

In light of this legislative change, the Court concluded 

that § 1658 did supply the statute of limitations for the Jones 

plaintiffs' claims. The Court explained that their legal claims 

"did not allege a violation of the pre–1990 version of § 1981 but 

did allege violations of the amended statute." Id. at 383. As a 

result, the Court held that the Jones plaintiffs' legal claims 

were "made possible by" the 1991 amendment to § 1981, as their 

suit to recover for defendants' post-contract-formation conduct 
- 13 - 

could succeed only by virtue of that amendment and thus 

"necessarily depend[ed]" on it. Id. at 383, 384. 

C.

We have had one occasion to construe the scope of § 1658 

following Jones. In Millay v. Me. Dep't of Labor, Bureau of 

Rehab., Div. for Blind & Visually Impaired, 762 F.3d 152, 155-56 

(1st Cir. 2014), we considered whether a statutory amendment 

sufficed to trigger the catch-all limitations period set forth in 

§ 1658. We concluded that the amendment had a "substantive effect" 

that "made possible" the claim at issue because the amendment 

permitted expanded possibilities for judicial review of the 

administrative action that the plaintiff was challenging. Id. 

Of course, an amendment that makes a new avenue of 

judicial review available has a "substantive effect" that is 

distinct from the liability-enlarging effect of the amendment that 

was at issue in Jones. But we nevertheless concluded in Millay 

that such an amendment still met the Jones standard of having "made 

possible" the claim at issue. Id. at 155. 

We explained that, although some courts had previously 

allowed similar challenges to the underlying administrative action 

"to be enforced through 42 U.S.C. § 1983," the relevant amendments 

still "created a new and broader remedy" than the one that had 

previously existed. Id. at 156. We thus concluded that the 

amendments there at issue (the 1998 amendments to the 
- 14 - 

Rehabilitation Act), even if deemed "purely procedural," id., 

"made possible" the plaintiff's claims because they "enabled the 

plaintiff to bring the [then-]current proceeding for judicial 

review," id. And we explained that this conclusion made sense in 

light of the great interpretive weight that must be given to 

Congress's clear intention that § 1658 be applied broadly in order 

to reduce the need for courts to borrow state limitations periods. 

Id. at 157. 

III.

In light of Jones, and consistent with our application 

of that precedent in Millay, we conclude that § 1658 establishes 

the limitations period for Mercado's "regarded as" claims. To 

explain why we reach this conclusion, we first describe the 

"substantive effect" of the changes that the ADAAA made to the 

ADA. We then explain why Mercado's claims "necessarily depend" on 

those amendments and thus why we conclude that the ADAAA "made 

possible" Mercado's claims. See Jones, 541 U.S. at 382. 

A. 

A review of the relevant legislative history reveals the 

substantive effect of the change made to the ADA by the ADAAA. 

When first enacted on July 26, 1990, the ADA defined the term 

"disability" with respect to an individual as "(A) a physical or 

mental impairment that substantially limits one or more major life 

activities of such individual; (B) a record of such an impairment; 
- 15 - 

or (C) being regarded as having such an impairment." Americans 

with Disabilities Act of 1990, Pub. L. No. 101-336, § 3(2), 104 

Stat. 327, 329-30 (codified as amended at 42 U.S.C. § 12102(1)). 

Years later, however, the Supreme Court narrowly construed the 

third prong of that original definition. Sutton v. United Air 

Lines, Inc., 527 U.S. 471, 489 (1999). Specifically, the Supreme 

Court interpreted that prong to require a plaintiff to plead and 

prove that she was regarded as having an impairment that fit the 

terms of the first prong -- that is, that she was regarded as 

having an impairment that substantially limited one or more major 

life activities. Id. 

Nearly a decade later, however, Congress passed the 

ADAAA. Those 2008 amendments expressly rejected the 

interpretation of "regarded as having such an impairment" that the 

Court had set forth in Sutton. Pub. L. No. 110-325, sec. 1, § 

2(b)(3). In enacting those amendments, Congress changed the 

relevant portion of the ADA by adding a new paragraph (3). That 

new paragraph defined the scope of the term "being regarded as 

having such an impairment," id. sec. 4, § 3(1)(C), as follows: 

An individual meets the requirement of 'being regarded 

as having such an impairment' if the individual 

establishes that he or she has been subjected to an 

action prohibited under this Act because of an actual or 

perceived physical or mental impairment whether or not 

the impairment limits or is perceived to limit a major 

life activity. 
- 16 - 

Id. sec. 4, § 3(3)(A) (emphasis added).4

Thus, the 2008 amendments codified in the ADAAA made the 

ADA's definition of being "regarded as" having an impairment 

substantively broader than that definition had been in the period 

after Sutton. During that period, a plaintiff could maintain an 

ADA claim based on being regarded as having an impairment only if 

she pleaded that she was regarded as having a physical or mental 

impairment that substantially limited one or more major life 

activities. See Sutton, 527 U.S. at 489. After the enactment of 

the ADAAA, however, a plaintiff bringing a "regarded as" claim 

under the ADA needs to plead and prove only that she was regarded 

as having a physical or mental impairment. Such a plaintiff no 

longer needs to plead and prove that such impairment substantially 

limited one or more major life activities. Pub. L. No. 110-325, 

sec. 4, § 3(3)(A). Thus, while the change made to the ADA by the 

ADAAA may not be as significant as the change made by the amendment 

to section 1981 at issue in Jones, the change is still one that 

had a substantive effect. Cf. McCormick v. Miami Univ., 693 F.3d 

654, 663 (6th Cir. 2012) (declining to apply § 1658 where the 

operative amendments -- the 1992 Amendments to the Rehabilitation 

Act -- "essentially changed the nomenclature in [the relevant 

 4 The ADAAA also amended the third prong of the definition of 

disability to read: "being regarded as having such an impairment 

(as described in paragraph (3))." Pub. L. No. 110-325, § 3(a). 
- 17 - 

section] by replacing the word 'handicap' with the word 

'disability.'"). 

B. 

The remaining question is whether Mercado's "regarded 

as" claims "necessarily depend" on the substantive effect brought 

about by the change that the ADAAA made to the ADA. See Jones, 

541 U.S. at 384. We conclude that the claims she brought in her 

2014 complaint do "necessarily depend" on that change and thus 

that her claims were "made possible" by those 2008 amendments. See 

id. at 382. 

Mercado's complaint expressly refers to the 2008 

amendments in pleading her "regarded as" claims. By "enlarg[ing] 

the category of conduct that is subject to [] liability," id. at 

383, those amendments permit Mercado to plead and prove one fewer 

element of her "regarded as" claims than she would have been 

required to plead and prove under the ADA as it existed prior to 

those amendments. By virtue of those liability-enlarging 

amendments, Mercado need not plead and prove that the defendants 

regarded her as having a physical or mental impairment that 

substantially limited a major life activity. She need plead and 

prove only that the defendants regarded her as having a physical 

or mental impairment, no matter the defendants' view of the 

magnitude of the effect of the perceived impairment on her life 

activities. 
- 18 - 

For that reason, Mercado's legal claims "necessarily 

depend" on the 2008 amendments. See id. at 384. Accordingly, her 

claims "aris[e] under" an Act of Congress passed after December 1, 

1990. See 28 U.S.C. § 1658. 

C. 

The District Court mistakenly concluded otherwise by 

holding that the ADAAA merely "clarif[ied]" a pre-existing ADA 

right to be protected from "regarded as" discrimination. Mercado, 

86 F. Supp. 3d at 49. According to the District Court, this 

conclusion followed because it was "apparent" that the "elements" 

of the ADA's definition of "disability" were "identical" pre- and 

post-amendment by the ADAA. Id. at 49 n.2. Thus, the District 

Court ruled that Mercado's claims "would have been actionable under 

the original provisions of the ADA." Id. at 49. 

But, as we have explained, the ADAAA added a new 

paragraph to the ADA that changed the definition of the term 

"regarded as having such an impairment." ADA Amendments Act of 

2008, Pub. L. No. 110-325, sec. 4, § 3(3)(A). That new paragraph 

removed a key element of that definition and thereby broadened the 

ADA's substantive scope. Thus, contrary to the District Court's 

assertion, the elements of the definition pre- and post-amendment 

are not identical. They are instead substantively distinct, with 

the consequence that the amended definition creates a broader right 
- 19 - 

to be free from "regarded as" discrimination than did the unamended 

definition. 

To be sure, the preamble to the ADAAA, Pub. L. No. 110-

325, sec. 2, §§ 2(a)(4), 2(b)(1), does state that Congress 

originally intended the term "regarded as having such an 

impairment" to be read more broadly than the Supreme Court read it 

to be in Sutton, 527 U.S. at 489. But, even if that statement can 

be said to have characterized the 2008 amendments as having merely 

clarified (rather than altered) the original scope of the ADA, 

such a legislative statement cannot strip the 2008 amendments of 

the "substantive effect" that they undeniably had. The ADAAA 

explicitly rejected Sutton. In so doing, the ADAAA quite clearly 

broadened the definition of being "regarded as" having an 

impairment beyond what it had been under the previously controlling 

Supreme Court interpretation of that phrase. Pub. L. No. 110-325, 

sec. 2, § 2(b)(3), sec. 4, § 3(3)(A). 

Thus, this is not a case in which "there was a split of 

authority regarding the scope of the original statute" that would 

require us to "determine whether the amendment clarified existing 

law or created new rights and liabilities." Jones, 541 U.S. at 

385. Rather, this is a case in which the substantive effect of 

the amendments in question is clear. Those 2008 amendments 

rejected the narrow interpretation of the statute set forth in a 

controlling Supreme Court opinion. By doing so, those amendments 
- 20 - 

clearly created new rights and liabilities. And because, as we 

have explained, Mercado's claims "necessarily depend" on the 

expanded liability created by those amendments, her claims are 

governed by the catch-all limitations period that § 1658 sets 

forth. See Jones, 541 U.S. at 384. 

D. 

The defendants do make one additional argument against 

our conclusion, but we do not find it to be persuasive. The 

defendants argue that § 1658's limitations period does not apply 

because Mercado's actual complaint alleges that she was regarded 

by the defendants as having a "major" mental impairment rather 

than a minor one. [Administración Br. 23]. The defendants contend 

that this reference to a "major" impairment in her complaint shows 

that her complaint alleges facts that would have been sufficient 

to state a claim even under the ADA as it stood after Sutton but 

before the enactment of the ADAAA. For that reason, the defendants 

assert, Mercado's claims do not "necessarily depend" on -- and 

thus are not "made possible by" -- the 2008 amendments set forth 

in the ADA. Rather, the defendants argue that her complaint -- on 

the strength of the factual allegation that she was "regarded as" 

having a "major" impairment -- states claims on which relief under 

the ADA could have been granted even if the ADAAA had never been 

enacted. 
- 21 - 

The defendants' contention arguably draws support from 

the fact that the Jones plaintiffs' claims of hostile work 

environment, wrongful termination, and failure to transfer 

"alleged violations of the amended statute" but "did not allege a 

violation of the pre-1990 version of section 1981." 541 U.S. at 

383 (emphasis added). Here, by contrast, defendants contend that 

Mercado is -- by referring to a "major" impairment in her complaint 

-- alleging a claim that she could have brought under the original 

version of the ADA. 

But we do not believe Jones requires that we attribute 

the significance that defendants do to the complaint's reference 

to a "major" impairment. The 1991 amendment to § 1981 that was at 

issue in Jones left the pre-existing version of the discrimination 

claim intact even as it also made possible new discrimination 

claims by subjecting post-contract-formation conduct to § 1981 

liability for the first time. The ADAAA, by contrast, replaced 

the pre-existing "regarded as" claim with a new "regarded as" claim 

that requires a plaintiff to plead and prove one fewer element. 

The ADAAA thus did not add a new claim so much as it reduced the 

requirements to prove an existing one. But this difference in the 

form that Congress used to enlarge liability does not mean that 

the ADAAA did not "ma[k]e possible" Mercado's claims. See Jones, 

541 U.S. at 382. 
- 22 - 

Just as the 1991 amendment to § 1981 at issue in Jones 

allowed plaintiffs to plead and prove elements of a discrimination 

claim that previously was not available, so, too, does the ADAAA. 

Under the 2008 amendments, on which Mercado's 2014 complaint 

relies, she may now recover for discrimination without showing (as 

the ADA previously required) that the defendants regarded her 

impairment as a substantially life-altering one. Thus, by 

asserting in her complaint a violation of the new, substantively 

broader right protected by the amended ADA rather than the narrower 

right protected by the unamended ADA, she is asserting a claim 

that did not exist before just as was true of the plaintiffs in 

Jones. The 2008 amendments therefore "made possible" the 

particular legal claims that Mercado has brought, even if her 

complaint also contains factual allegations that perhaps could 

have supported the different and harder-to-prove "regarded as" 

claim that existed prior to the 2008 amendments but that Congress 

has replaced and that she is not now bringing.5

Simply put, an amendment to a statute that bars a new, 

broader form of discrimination may still "ma[ke] possible" a 

plaintiff's suit to redress that discrimination, even if it may be 

true that the plaintiff has also suffered a different, more 

 5 This conclusion obviates the need to engage with the 

precedent cited by Mercado for the proposition that her complaint 

would not have stated a claim under the pre-ADAAA version of the 

ADA. 
- 23 - 

specific form of discrimination that the unamended statute already 

barred. We thus conclude that -- notwithstanding the reference to 

a "major" impairment in Mercado's complaint -- Mercado's legal 

claims "necessarily depend" on the 2008 amendments to the ADA no 

less than the Jones plaintiffs' legal claims "necessarily 

depend[ed]" on the 1991 amendment to § 1981. See id. at 384. 

Indeed, in this case, a contrary conclusion would oddly make the 

catch-all limitations period that § 1658 sets forth applicable 

only if Mercado amended her complaint to delete a factual 

allegation that she need not make in order to plead the only 

"regarded as" claims that she actually brings in her 2014 

complaint. We decline to read Jones to require such a strange 

result. 

IV.

Congress enacted § 1658 in order to reduce the need for 

litigation about how best to fill the "void" that arises when 

statutes fail to specify the limitations period applicable to the 

causes of action they create. See Jones, 541 U.S. at 380. 

Recognizing that purpose, Jones construed § 1658 broadly. Id. at 

380-82. Following the same interpretive approach, and consistent 

with our precedent instructing that we should do so, see Millay, 

762 F.3d at 155-57, we conclude that § 1658 supplies the 

limitations period here, due to the 2008 amendments that "made 

possible" Mercado's claims. See Jones, 541 U.S. at 382. 
- 24 - 

For the foregoing reasons, we reverse the District 

Court's order of dismissal and we remand for further proceedings.