2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2008

Disabled Action PA v. SEPTA

Precedential or Non-Precedential: Precedential

Docket No. 06-5109

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-5109

 

DISABLED IN ACTION OF PENNSYLVANIA,

 Appellant

 v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

AUTHORITY

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D. C. No. 03-cv-01577)

District Judge: Honorable Gene E. K. Pratter

 

Argued January 10, 2008

Before: FISHER, HARDIMAN and 

STAPLETON, Circuit Judges.
2

(Filed: August 19, 2008 )

Stephen F. Gold (Argued)

125 South 9th Street

Suite 700

Philadelphia, PA 19107-0000

Rocco J. Iacullo

Mark J. Murphy

Disabilities Law Project

1315 Walnut Street 

Suite 400

Philadelphia, PA.

Attorneys for Appellant

Gregory B. Friel (Argued)

Jessica D. Silver

United States Department of Justice

Civil Rights Division, Appellate Section

P.O. Box 14403

Ben Franklin Station

Washington, DC 20044-4403

Attorneys for Amicus Appellant

Saul H. Krenzel (Argued)

Saul H. Krenzel & Associates

42 South 15th Street

The Robinson Building, Suite 800

Philadelphia, PA 19102-0000

Attorneys for Appellee
3

 

OPINION OF THE COURT

 

HARDIMAN, Circuit Judge.

In this statutory interpretation case, we must decide when

the statute of limitations begins to run in a case arising under the

Americans With Disabilities Act (ADA) and the Rehabilitation

Act (RA). Appellant Disabled in Action of Pennsylvania (DIA)

argues that under the plain language of the statute, its claims

accrued “upon the completion” of alterations to two

Philadelphia subway stations. Appellee Southeastern

Pennsylvania Transportation Authority (SEPTA) argues, and the

District Court held, that DIA’s claims accrued prior to the

completion of the alterations when DIA discovered that the

planned alterations would not include elevators.

I.

We view the facts and draw all reasonable inferences in

the light most favorable to DIA, the party against whom

summary judgment was entered. Feesers, Inc. v. Michael

Foods, Inc., 498 F.3d 206, 208 (3d Cir. 2007) (citing Andreoli

v. Gates, 482 F.3d 641, 644 (3d Cir. 2007)).
4

DIA is a nonprofit corporation that seeks to eliminate

discrimination against disabled individuals in all aspects of

community life. To achieve this goal, DIA employs a variety of

methods including: government monitoring, political activism,

direct involvement in municipal planning, and, as a last resort,

litigation. Many of DIA’s approximately 450 members use

wheelchairs and rely on SEPTA for their public transportation

needs.

SEPTA is an agency of the Commonwealth of

Pennsylvania responsible for providing public transportation in

Southeastern Pennsylvania. In Philadelphia, SEPTA’s City

Transit Division operates a vast network of subway and subwayelevated rapid rails, regional rails, light rails, trackless trolleys,

and buses that provide over 850,000 passenger trips per day.

SEPTA receives federal funding for many of its activities,

including its recent remodeling of an entrance to the 15th Street

Station.

A. 15th Street Station and Courtyard

The bustling 15th Street Station is located underground

near 15th and Market Streets in downtown Philadelphia.

Passengers can access the station in two ways. First, using the

stairway at the southwest side of 15th and Market Streets,

passengers can descend directly to the platform for the MarketFrankford subway line. Second, using the stairway or escalator

at the northwest side of the same block, passengers can descend

to the “15th Street Courtyard.” From there, they can turn

northward toward the Suburban Regional Rail Line Station

(Suburban Station), or southward, toward the Market-Frankford
 The parties dispute whether the 15th Street Courtyard 1

is an “entrance” to the Market-Frankford Station or to the

Suburban Station. According to SEPTA, “in order to reach the

15th Street Market-Frankford Station, an individual” must first

enter “the Suburban Station Transit Facility at the 15th Street

Courtyard” and then “travel south in the 15th Street corridor,

exit Suburban Station, and travel over underground transit lines

before entering the 15th Street Market-Frankford Station.”

Regardless whether it is technically labeled an “entrance,” the

15th Street Courtyard undisputedly provides access to the

Market-Frankford Station. Accordingly, at this stage of the

litigation, we accept DIA’s characterization of the 15th Street

Courtyard as an “entrance” to the Market-Frankford Station.

Michael Foods, 498 F.3d at 208, 212. The District Court may

take up this nuance and determine its relevance to § 12147(a)

liability on remand.

5

platform. SEPTA’s renovations to this latter entrance gave rise

to the present dispute.1

Prior to SEPTA’s renovations, the 15th Street Courtyard

included a set of stairs and two escalators enclosed within a

headhouse. On September 27, 1999, SEPTA received a

$700,000 grant from the Economic Development Administration

of the United States Department of Commerce for a project

entitled “Renovation of 15th and Market Streets Headhouse at

Suburban Station.” According to the grant, the project was to

involve “various renovations to the 15th and Market Streets

entrances and related areas” including “renovation of entrances

to the underground train station concourse; demolition of
6

existing facilities; the construction/installation of new stairs,

landscaping, lighting, signage, finishes, canopies; and all

appurtenances.”

In accepting the Commerce Department funding, SEPTA

agreed to “pursue diligently the development of the Project so

as to ensure completion . . . within [the] time schedule.”

Specifically, the grant required SEPTA to begin construction

within 18 months of its receipt of the funds and to limit the total

construction period to 29 months. In addition, the grant was to

expire “five (5) years from the fiscal year of the Grant Award,”

requiring that the project be “physically and financially

completed by September 30, 2004.”

Having secured funding, SEPTA applied to the City of

Philadelphia for a variance from certain provisions of the

Building Code. Among the provisions from which SEPTA

sought a variance was Section B-1110.2.2(9), which requires

that “[w]here building entrances are altered, or when plans are

presented to relocate and provide a new primary entrance, the

entrance shall be made accessible.” For obvious reasons,

SEPTA’s variance application caught the attention of DIA’s

legal counsel, Stephen F. Gold.

Fearful that SEPTA’s renovations would not include an

elevator, Gold wrote to Edward McLaughlin, City

Commissioner for the Department of Licenses and Inspections.

In his letter of August 3, 2000, Gold expressed concern “that the

City would allow SEPTA to apply for such a variance on its

behalf for such a major public access point.” Gold insisted that

“[i]n addition to ensuring that renovations . . . are carried out in
7

compliance with the Building Code, the City also has an

obligation to ensure that such renovations are . . . carried out in

compliance with the [Americans With Disabilities Act].” He

asked McLaughlin to keep him informed “as to how the City

plans to proceed with [SEPTA’s] variance request.”

Gold received no response from McLaughlin and

consequently discussed his concerns with Pete Winebrake, an

attorney in the City Solicitor’s Office. Gold summarized the

discussion in a letter dated September 28, 2000: “As I stated on

the phone yesterday, this problem should be resolved before

construction commences, or you leave me with very few

options. I am very concerned that the City’s train has already

left the station and I must act sooner than later [sic]. I am

available to meet with you at your earliest convenience.”

(Emphasis in original.)

Gold heard nothing more from Winebrake, but received

a letter dated November 14, 2000 from Assistant City Solicitor

Fredrick K. Pasour regarding the “15th Street Courtyard Portion

of the Suburban Station Project.” In pertinent part, Pasour’s

letter stated:

I represent the City of Philadelphia with respect to

the above-referenced project. I understand that

you believe that the ADA, its regulations and the

Accessibility Guidelines require an elevator in the

15th Street courtyard. I also understand that you

are considering bringing a lawsuit to enjoin the

15th Street courtyard portion of the project if the

City issues a building permit based on plans that
It is unclear to what building permit this statement 2

refers as the City did not issue a permit for the 15th Street

Courtyard project until mid-February 2001. App’x 216.

8

do not include an elevator in the 15th Street

courtyard.

This letter is to advise you that the City doe [sic]

not share your view that an elevator is required in

the 15th Street courtyard and has issued a building

permit for the project. Please remember that the 2

15th Street courtyard will be readily accessible to

and usable by individuals with disabilities. As

you are aware, elevators are planned for other

locations near the 15th Street courtyard.

The current bids for the portion of the project that

includes the 15th Street courtyard renovations are

only good through December 30, 2000. If,

therefore, you plan to bring an action challenging

the 15th Street courtyard portion of the project,

please do so in an expeditious manner.

I understand that you had one meeting with

representatives of the City and SEPTA at the 15th

Street courtyard to discuss the project. I believe

that another meeting this week may be useful in

order to discuss the project in more detail and to

determine if we can reach an agreement that is
9

satisfactory to you, the disabled community, the

City and SEPTA.

App’x 477.

Despite Pasour’s letter, Gold did not immediately file a

lawsuit, and the City issued SEPTA a building permit on or

about February 14, 2001, describing the 15th Street Courtyard

project as follows:

Demolition incorporates head house, stair,

railings, limited wall, veneer, pavement, and

lighting systems. Also to be removed are

planters, fountain and ceilings. Construction

scope consists of glass head house, stair, (2) retail

spaces, railings, storefront sys., planters, lighting

and paving installed, as well as new ceiling.

App’x 216. SEPTA commenced construction a few days later.

The record suggests several explanations for DIA’s

decision not to file suit prior to this juncture. First, Gold

testified that in 2000, he met with representatives of SEPTA and

the City because “they were really anxious to get a commitment

from [him] that there would not be a lawsuit regarding 15th

Street.” See also App’x 477 (referring to a meeting between

Gold and “representatives of the City and SEPTA” to determine

if the parties could “reach an agreement”). According to Gold,

Frances Egan, Assistant to SEPTA’s General Manager for

Government and Public Affairs, and Deborah Russo, a

representative of the City, assured him that in lieu of an elevator
 The City Hall project is discussed in Part I.B, infra. 

3

 Although the parties stipulated DIA’s allegations of the 4

DIA-SEPTA-City agreement out of the litigation, the stipulation

only precludes DIA “from presenting any claim that Defendant

SEPTA allegedly agreed to construct elevators at City Hall in

lieu of construction of an elevator at the northwest corner of

15th and Market Streets.” App’x 136 (emphasis added). Here,

DIA raises no “claim” based on the alleged agreement. See

Disabled in Action of Pa. v. Southeastern Pa. Transp. Auth., No.

03-CV-1577, 2006 WL 3392733, at *16 (E.D. Pa. Nov. 17,

2006) (hereinafter DIA). Rather, DIA proffers the agreement as

an explanation for its decision not to file suit before construction

began on the 15th Street Station entrance.

Gold was confident that he could rely on the assurances

5

of Egan and Russo because of their long professional

relationship, and DIA Executive Director Nancy Salandra was

content to wait and see if “[SEPTA] would do the right thing.”

10

at 15th Street, SEPTA “would put in the elevator at City Hall

and begin construction in ‘02 with the completion date of ‘04.”3

See also App’x 477 (noting that “elevators are planned for other

locations near the 15th Street courtyard”).

Gold discussed the proposed compromise with DIA, and

DIA agreed that it was acceptable. Gold informed Egan of his

client’s assent, but neither party memorialized the deal.4

Assuaged nonetheless, DIA took no further action until late 5
 The foregoing account parallels the allegations in 6

DIA’s Second and Third Amended Complaints with one

exception. The Complaints state that the negotiations among

Gold, SEPTA, and the City occurred “[i]n 2000 while the 15th

and Market Street entrance was in construction.” App’x 111,

119. Construction on the entrance did not commence until

February 2001, however. App’x 212 (SEPTA’s Capital Project

Progress Report noting that a “[p]re-construction meeting”

regarding the “15th Street Entrance” was held on February 5,

2001) (emphases added); App’x 216. Because we must resolve

such factual discrepancies in the light most favorable to DIA,

we assume that construction had not commenced when the

alleged deal among DIA, SEPTA, and the City was brokered.

Michael Foods, 498 F.3d at 208, 212.

11

2002 when it appeared that SEPTA was not installing an

elevator at City Hall.6

Gold’s explanation for DIA’s decision not to file a preconstruction lawsuit is supported by a Settlement Agreement in

which DIA voluntarily dismissed its claims against the City, and

the City affirmed that it “only granted permits for [the 15th

Street Courtyard] renovation because [it] believed SEPTA had

agreed to construct elevators in the City Hall Courtyard in lieu

of the required elevator at 15th and Market.” 

Alternatively, the record suggests that at some point,

DIA’s strategy shifted from obtaining a pre-construction

injunction to pursuing post-construction remedies based on

Gold’s belief that even though “[SEPTA] had started
 In the pantheon of misused metaphors, “hoist with his 7

own petard” may be preeminent. A “petard” is a small bomb

used to break down doors, but the word was derived from the

Middle French “peter,” meaning “to break wind.” See

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1689

(1993). It is no wonder the word found favor with the master of

the double entendre. SeeWILLIAM SHAKESPEARE, HAMLET, Act

III, Scene 4 (“For ‘tis the sport to have the enginer / Hoist with

his own petard”).

12

construction or even completed [construction],” the ADA

enabled DIA to force SEPTA to install an elevator. Gold

admitted that he gave Pasour’s admonition to file suit in an

expeditious manner “[v]ery, very, very much consideration” but

determined that he could “optimize representing [DIA] [by]

letting [SEPTA] move the stairs and begin[] the construction

because [DIA] could always get the elevator and make [SEPTA]

put it [in] if necessary along 15th Street.” For reasons that are

not clear from the record, Gold concluded that if construction

did not proceed, “there would be no elevator.” Accordingly, he

“decided . . . to let [SEPTA and the City] sit in their own petard

[sic].”7

Whatever the reasons for waiting, DIA filed its initial

Complaint on March 14, 2003, approximately eight months after

the newly renovated 15th Street Courtyard entrance was opened

on August 8, 2002 without an elevator. DIA requested

“permanent injunctive relief to enjoin [SEPTA] to begin

construction immediately of a[n] elevator at the 15th and Market
 The parties dispute whether this escalator is an exit 8

from the City Hall Station platform or from the City Hall Station

mezzanine, a concourse one level above the platform. DIA

asserts that the escalator “serves as an exit for patrons

disembarking from the Broad Street Subway City Hall Station

and pedestrians traversing the concourse.” SEPTA admits that

the escalator “serves as an exit for pedestrians traversing the

concourse” but denies that it is “an exit for patrons

disembarking from City Hall Station.” Apparently, the City Hall

Courtyard escalator does not extend beyond the mezzanine level

so that passengers exiting onto the City Hall Station platform

must take another escalator to the mezzanine level, then board

the City Hall Courtyard escalator to reach street level. At this

stage of the proceedings, we reject SEPTA’s hyper-technical

definition of “exit.” Michael Foods, 498 F.3d at 208, 212. The

District Court may consider the relevance, if any, of this dispute

on remand.

13

Street entrance . . . to assure access for persons with

disabilities.”

B. City Hall Station and Courtyard

The second subject of the present dispute is SEPTA’s

replacement of an escalator that carried passengers from the

concourse above the City Hall Station platform to City Hall

Courtyard. Located near the 15th Street Station, City Hall 8

Station is one of the busiest stops on the Broad Street subway

line and serves as a transfer point between the Broad Street

Line, the Market-Frankford Line, and Regional Rail Lines. For
14

instance, from the concourse below City Hall Courtyard,

passengers can access the 11th and 13th Street MarketFrankford Line platforms without using stairs.

The City Hall Courtyard project was part of SEPTA’s

Escalator Replacement Program, launched in 1999 to improve

the safety of escalators throughout the system. SEPTA included

funding for the program in its FY 2001 Capital Budget after

holding a public meeting to discuss the improvements on May

22, 2000. Although no representative of DIA attended the

meeting, DIA’s Executive Director testified that DIA reviews

SEPTA’s Capital Budget each year and was aware of the

project.

By August 17, 2001, SEPTA had barricaded the area

around the City Hall Courtyard escalator and posted signs that

read “Project of the Pennsylvania Public Transportation

Assistance Fund; Escalator Replacement at Erie, Spring Garden,

City Hall & 30th Street Stations; Southeastern Pennsylvania

Transportation Authority.” SEPTA removed the existing

escalator, extended the wellway and relocated the truss upon

which it sat, and installed a new escalator. Construction was

completed and the escalator was opened to the public on or

about August 24, 2003. The finished project did not include an

elevator. On February 15, 2005, DIA filed its Fourth Amended

Complaint, adding allegations regarding this project.

C. The District Court Proceedings

DIA filed its initial Complaint on March 14, 2003,

alleging that SEPTA’s renovations to the 15th Street Station
15

entrance violated the ADA and the RA. The District Court

dismissed the complaint because DIA failed to name the City of

Philadelphia, the owner of the real property upon which the

entrance is located, as a defendant. After the Court granted DIA

relief from the dismissal, DIA added the City as a defendant in

its First Amended Complaint. On October 10, 2003, DIA filed

a Second Amended Complaint, which included allegations about

a deal between DIA, SEPTA, and the City to install an elevator

at the City Hall Courtyard instead of the 15th Street Courtyard.

After an unsuccessful settlement attempt, DIA filed a

Third Amended Complaint, adding an ADA “key station” claim.

See 42 U.S.C. § 12147(b); 29 C.F.R. § 37.47. SEPTA moved to

dismiss the key station claim and argued that portions of the

Third Amended Complaint should be stricken pursuant to a

stipulation between DIA and SEPTA. The District Court

refused to dismiss the key station claim, but DIA agreed to strike

its allegations that SEPTA had agreed to install an elevator at

City Hall in lieu of 15th Street.

On August 16, 2004, DIA reached a settlement

agreement with the City. Therein, the City stipulated that “[i]t

is the City’s legal opinion that SEPTA is legally obligated under

the ADA and accompanying Regulations to construct an

elevator at the 15th and Market Street Courtyard entrance, which

SEPTA renovated.” Moreover, the City asserted that it “only

granted permits for [the 15th Street] renovation because [it]

believed SEPTA had agreed to construct elevators in the City

Hall Courtyard.” Based on this agreement, the District Court

dismissed the City from the case.
 Because the District Court dismissed DIA’s § 12147(a) 9

claims as barred by the statute of limitations, it did not reach the

vigorously disputed question of whether SEPTA’s renovations

constituted “alterations” within the meaning of the ADA. We

leave this question for the District Court on remand.

16

On February 15, 2005, DIA filed a Fourth Amended

Complaint in which it added a second claim under § 12147(a)

based on SEPTA’s renovations to the City Hall Courtyard. DIA

alleged that SEPTA’s renovations to both the 15th Street and

City Hall Courtyards constituted “alterations” that triggered

ADA and RA accessibility obligations. 42 U.S.C. § 12147(a); 9

29 U.S.C. § 794(a). DIA also alleged that both 15th Street and

City Hall are “key stations” that SEPTA must make accessible.

42 U.S.C. § 12147(b); 29 U.S.C. § 794(a). DIA requested, inter

alia, an injunction compelling SEPTA to construct elevators at

both locations. After completing discovery, the parties filed

cross motions for summary judgment.

The District Court granted SEPTA’s motion for summary

judgment on all counts. As to DIA’s § 12147(a) claims, the

court reasoned that “[t]o determine the accrual date of a

discrimination claim, a court must focus on when the

discriminatory act occurred, not when the effect of that act

became painful.” DIA, 2006 WL 3392733, at *14 (citing

Chardon v. Fernandez, 454 U.S. 6, 8 (1981)). The District

Court rejected DIA’s argument that SEPTA’s discriminatory

acts occurred “upon completion of [the] alterations” to the 15th

Street and City Hall Courtyards. Id. at *13 (citing 42 U.S.C.

§ 12147(a)). Rather, the District Court held that the claims
 The District Court also dismissed DIA’s “key station” 10

claims, holding that § 12147(b) does not create a private right of

action by which individuals may enforce Department of

Transportation regulations designating “key stations.” Id. at

*29. This decision is not challenged on appeal.

 Because the procedures, rights, and remedies provided 11

by Section 227 of the ADA are identical to those provided by

Section 504 of the RA, see 42 U.S.C. §§ 12133 and 12147(a),

17

accrued when DIA knew, or had reason to know, that SEPTA’s

renovations would not include elevators. According to the

District Court, DIA had such knowledge regarding the 15th

Street Courtyard “no later than November 1, 2000, when DIA

was informed that SEPTA would proceed with the planned

construction at the 15th and Market Street Courtyard without

installing an elevator,” id. at *14, and regarding the City Hall

Courtyard, “at least as early as August 17, 2001,” when a sign

was posted “in the City Hall Courtyard on the outside of the

boarded-off construction area where the escalator was being

replaced.” Id. at *17. Because DIA filed its § 12147(a) claims

more than two years after these dates, the District Court

dismissed them as barred by the statue of limitations, id., and

DIA appealed.10

II.

DIA’s claims arise under Section 227 of the ADA, 42

U.S.C. § 12147(a), and Section 504 of the RA, 29 U.S.C.

§ 794(a). The District Court had jurisdiction over these claims 11
we will generally refer only to the ADA with the understanding

that both the ADA and the RA are implicated. See Doe v.

County of Centre, 242 F.3d 437, 446 (3d Cir. 2001); see also

McDonald v. Commw. of Pa., 62 F.3d 92, 95 (3d Cir. 1995)

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

[Americans With] Disabilities Act, the substantive standards for

determining liability are the same.”).

18

pursuant to 28 U.S.C. §§ 1331 and 1343. We review the District

Court’s final order granting summary judgment to SEPTA

pursuant to 28 U.S.C. § 1291.

Our review is plenary, and we apply the same standard as

the District Court. Michael Foods, 498 F.3d at 212. We will

affirm the grant of summary judgment if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact” and that SEPTA is “entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). In making

this determination, we “view the facts in the light most

favorable” to DIA and “draw all inferences” in DIA’s favor.

Michael Foods, 498 F.3d at 212 (quoting Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000)).

In 1973, Congress passed the Rehabilitation Act to assure

that no individual with a disability “shall . . . be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). Seventeen years

later, Congress extended this mandate to cover all public
19

transportation providers in Title II of the Americans With

Disabilities Act. See 42 U.S.C. §§ 12132 and 12131(1). Title

II begins with a general prohibition of disability-based

discrimination, § 12132, followed by seven provisions that

define what “shall be considered discrimination” for purposes

of the statute. 42 U.S.C. §§ 12142, 12143, 12144, 12146,

12147, 12148, and 12162. In this case, we address an important

question of first impression regarding one of these provisions:

when does a claim under § 12147(a) accrue?

III.

Neither Title II of the ADA nor Section 504 of the RA

includes an express statute of limitations. As both statutes were

enacted prior to the effective date of the default four-year statute

of limitations for federal statutes, see 28 U.S.C. § 1658, we

borrow the statute of limitations of the most analogous state law

cause of action. North Star Steel Co. v. Thomas, 515 U.S. 29,

33-34 (1995); Wilson v. Garcia, 471 U.S. 261, 266-67 (1985).

The District Court concluded, and the parties do not dispute, that

Pennsylvania’s two-year statute of limitations for personal injury

claims should apply to claims under § 12147(a).

This conclusion is consistent with our precedent

regarding the statute of limitations for federal civil rights claims.

See, e.g., Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000); Kost

v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Bougher v.

Univ. of Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989). It is also

consistent with the majority of Courts of Appeals that have

decided the question. See Gaona v. Town & Country Credit,

324 F.3d 1050, 1055 (8th Cir. 2003) (noting that “most Courts
20

of Appeal[s] . . . have applied the state statute of limitations for

personal injury actions to claims under the Rehabilitation Act

and the ADA”); Everett v. Cobb County Sch. Dist., 138 F.3d

1407, 1409-10 (11th Cir. 1998); Soignier v. Am. Bd. of Plastic

Surgery, 92 F.3d 547, 551 (7th Cir. 1996); Baker v. Bd. of

Regents, 991 F.2d 628, 632 (10th Cir. 1993); Morse v. Univ. of

Vermont, 973 F.2d 122, 127 (2d Cir. 1992); Hickey v. Irving

Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir. 1992); cf. Wolsky

v. Med. Coll. of Hampton Rds., 1 F.3d 222, 223-25 (4th Cir.

1993).

Accordingly, we hold that the statute of limitations

applicable to claims under Title II of the ADA and Section 504

of the RA is the statute of limitations for personal injury actions

in the state in which the trial court sits. In this case, the

applicable statute is 42 PA. CONS. STAT. § 5524, which

prescribes a two-year statute of limitations.

IV.

The more difficult question — and the crux of the dispute

between DIA and SEPTA — is when this two year statute of

limitations begins to run. In answering this question, we note

that “[t]he ADA is a remedial statute, designed to eliminate

discrimination against the disabled in all facets of society,” and

as such, “it must be broadly construed to effectuate its

purposes.” Kinney v. Yerusalim, 812 F. Supp. 547, 551 (E.D.

Pa. 1993) (citing Tcherepnin v. Knight, 389 U.S. 332, 335

(1967)), aff’d, 9 F.3d 1067 (3d Cir. 1993).

A.
 The Supreme Court has not adopted the “discovery 12

accrual rule” as its own, Andrews, 534 U.S. at 27 (internal

citation omitted), and Justice Scalia has criticized the rule as

“bad wine of recent vintage.” Id. at 37 (Scalia, J., concurring).

21

Ordinarily, a statute of limitations begins to run from the

moment the potential plaintiff has a “complete and present cause

of action.” Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferber Corp., 522 U.S. 192, 195 (1997) (quoting

Rawlings v. Ray, 312 U.S. 96, 98 (1941)); Arnold, 232 F.3d at

366 (quoting Ross v. Johns-Manville Corp., 766 F.2d 823, 826

(3d Cir. 1985)) (limitations period begins to run “from the time

the cause of action accrue[s]”). For federal causes of action, the

accrual date is a matter of federal law. Romero v. Allstate

Corp., 404 F.3d 212, 221 (3d Cir. 2005).

Where Congress has specified an accrual date by

“explicit command” or “by implication from the structure and

text of the statute,” we defer to its directive. TRW Inc. v.

Andrews, 534 U.S. 19, 27-28 (2001); see Romero, 404 F.3d at

222. “[I]n the absence of a contrary directive from Congress,”

we apply the “federal discovery rule,” which dictates that a

federal cause of action accrues “when the plaintiff discovers, or

with due diligence should have discovered, the injury that forms

the basis for the claim.” Romero, 404 F.3d at 222 (internal

quotation and citations omitted).12

We agree with the parties that Congress did not

“explicitly command” an accrual date for § 12147(a) claims as

it has done for other civil rights actions. Cf. 42 U.S.C. 2000e-
22

5(e)(1) (“A charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful employment

practice occurred . . . .”); id. § 3613 (“An aggrieved person may

commence a civil action . . . not later than 2 years after the

occurrence or the termination of an alleged discriminatory

housing practice . . . .”). Nevertheless, for the reasons that

follow, we hold that the “structure and text of the statute,”

Andrews, 534 U.S. at 28, evince Congress’s intention that claims

under § 12147(a) accrue “upon the completion of . . .

alterations” to public transportation facilities.

1.

The portion of § 12147(a) at issue in this appeal provides:

With respect to alterations of an existing facility

or part thereof used in the provision of designated

public transportation services that affect or could

affect the usability of the facility or part thereof,

it shall be considered discrimination, for purposes

of section 12132 of this title and section 794 of

Title 29, for a public entity to fail to make such

alterations (or to ensure that the alterations are

made) in such a manner that, to the maximum

extent feasible, the altered portions of the facility

are readily accessible to and usable by individuals

with disabilities, including individuals who use

wheelchairs, upon the completion of such

alterations.
 The “rule of the last antecedent” is a principle of 13

statutory interpretation under which “a limiting clause or phrase

. . . should ordinarily be read as modifying only the noun or

phrase that it immediately follows.” Barnhart v. Thomas, 540

U.S. 20, 26 (2003) (emphasis added). This rule does not help

SEPTA because the statutory phrase immediately preceding

“upon the completion of such alterations” is “including

individuals who use wheelchairs.” To be precise, SEPTA is

arguing for a rule of the second-to-last antecedent — a far more

23

As the District Court correctly observed, the dispute

between DIA and SEPTA “emanates from the difference in how

the parties interpret” this provision “as to when the alleged

discrimination occurs.” DIA, 2006 WL 3392733, at *11. Like

the parties and the District Court, we believe § 12147(a)’s

concluding phrase — “upon the completion of such alterations”

— is of fundamental importance in answering this question.

DIA argues that the phrase modifies the entire definition

of what “shall be considered discrimination” because “only

when . . . alterations are completed and the inaccessible facility

is re-opened will people with mobility disabilities be subject to

discrimination.” Therefore, DIA concludes, claims under

§ 12147(a) do not accrue until alterations are completed.

SEPTA invokes the rule of the last antecedent, arguing

that the “upon the completion” phrase only modifies the phrase

“the altered portions of the facility are readily accessible to and

usable by individuals with disabilities” and not “the entire

definition of what constitutes discrimination.” Under this 13
aspirational proposition.

24

interpretation, which the District Court adopted, the function of

the “upon the completion” phrase is “merely [to] suggest that

accessibility for disabled individuals must be in place at the time

the alterations are completed.” DIA, 2006 WL 3392733, at *13.

In other words, the phrase merely acknowledges that while

renovations are in progress, facilities will necessarily be

inaccessible to everyone, including “individuals with

disabilities,” and that this temporary inaccessibility is not what

§ 12147(a) prohibits.

Our evaluation of these conflicting interpretations is

guided by familiar rules of statutory construction. Our primary

concern is to give effect to Congress’s intent. Rosenberg v. XM

Ventures, 274 F.3d 137, 141 (3d Cir. 2001). We assume that

“Congress expresses its intent through the ordinary meaning of

its language” and therefore begin “with an examination of the

plain language of the statute.” Id. If the language is

unambiguous, our inquiry is at an end. Id.

A statutory provision is not ambiguous simply because

“by itself, [it is] susceptible to differing constructions” because

in addition to the “statutory language . . . itself,” we take

account of “the specific context in which that language is used,

and the broader context of the statute as a whole.” In re Price,

370 F.3d 362, 369 (3d Cir. 2004). We assume, for example, that

every word in a statute has meaning and avoid interpreting one

part of a statute in a manner that renders another part

superfluous. Rosenberg, 274 F.3d at 141-42. We also consider
25

the overall “object and policy” of the statute, United States v.

Schneider, 14 F.3d 876, 879 (3d Cir. 1994), and avoid

constructions that produce “odd” or “absurd results” or that are

“inconsistent with common sense.” See Public Citizen v. U.S.

Dept. of Justice, 491 U.S. 440, 454 (1989) (internal quotations

omitted); 2A N. SINGER, SUTHERLAND STATUTES AND

STATUTORY CONSTRUCTION § 45:12, at 92 (6th ed. 2000)

(hereinafter SUTHERLAND).

Applying these principles to § 12147(a), we find DIA’s

interpretation of the “upon the completion” phrase more

persuasive. The language appears in the “specific context” of a

single sentence that defines activities that “shall be considered

discrimination”; and in the “broader context” of Title II, which

assures that no “individual with a disability” is “subjected to

discrimination.” 42 U.S.C. §§ 12147(a) and 12132.

“Discrimination,” as it is ordinarily defined, is the denial of

“privileges to a certain class because of race, age, sex,

nationality, religion, or handicap.” BLACK’S LAW DICTIONARY

500 (8th ed. 2004). The privileges at stake in § 12147(a) are

access to, and use of, public transportation facilities. It is

difficult to understand how these privileges are denied to

individuals with disabilities by the mere promulgation or

approval of renovation plans that do not include accessibility

features. Instead, as Congress recognized, it is only when

renovations are completed that individuals with disabilities will

be excluded from accessing and using such facilities while

others will not. This is the time at which disabled individuals

are subjected to the disparate treatment that § 12147(a) was

enacted to prevent.
26

SEPTA’s argument that the “upon the completion”

language merely clarifies that § 12147(a) imposes no duty upon

public entities to ensure accessibility while transportation

facilities are under construction is specious. We are confident

that Congress would not have felt compelled to make such an

obvious clarification. See Public Citizen, 491 U.S. at 454.

Faced with a choice between SEPTA’s interpretation, which

essentially renders the phrase surplusage, and DIA’s

interpretation, which gives it substantial effect, we choose the

latter. See Silverman v. Eastrich Multiple Investor Fund, L.P.,

51 F.3d 28, 31 (3d Cir. 1995) (A statute “should be construed so

that effect is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant.”);

SUTHERLAND § 45:12, at 94 (“[A] construction that renders a

portion of the statute meaningless should not be reached by the

court unless that construction is unavoidable.”); SUTHERLAND §

46:06, at 190-92 (“No clause[,] sentence[,] or word shall be

construed as superfluous, void or insignificant if the

construction can be found which will give force to . . . all the

words of the statute.”).

We thus interpret the “upon the completion” clause as

modifying the statutory definition of discrimination such that

claims under § 12147(a) arise “upon the completion” of

inaccessible “alterations.”

2.

Our interpretation of this seminal clause in dispute on

appeal is bolstered by the remainder of the statute. In fact, even

if the “upon the completion” clause was absent from the statute,
27

we would conclude that a claim under § 12147(a) does not

accrue until alterations are completed.

As the District Court stated, “[t]o determine the accrual

date of a discrimination claim, a court must focus on when the

discriminatory act occurred.” DIA, 2006 WL 3392733, at * 14

(citing Chardon, 454 U.S. at 8). Section 12147(a) defines two

closely related discriminatory acts: the failure (1) “to make”

alterations, and (2) the failure “to ensure that . . . alterations are

made,” in such a manner that the altered portions of

transportation facilities are accessible and usable.

Regarding the first act, we agree with the amicus curiae

submission of the U.S. Department of Justice that as a matter of

logic, there can be no “fail[ure] to make” the “altered portions”

of a facility accessible until the alterations are completed. The

relevant act is “to make” — “to cause (something) to exist.”

BLACK’S LAW DICTIONARY 975 (8th ed. 2004). Merely funding,

designing, approving, or even commencing construction of

alterations that will not provide accessibility does not “cause”

such alterations “to exist,” especially in light of the notoriously

contingent nature of construction plans. See, e.g., DIA v. Sykes,

833 F.2d 1113, 1115 (3d Cir. 1987) (subway station renovation

planned and funded in 1979 but modified in 1981 to exclude

elevator). Therefore, an individual cannot suffer discrimination

under this portion of the statute until the alterations are

completed.

Unlike the first discriminatory act, the second act can

logically occur before, during, or after construction. For

example, a public entity arguably fails “to ensure that . . .
We nevertheless question how plans can “ensure” 14

certain results, for it is axiomatic that even the best laid plans of

mice and men often go awry. See, e.g., Sykes, 833 F.2d at 1115;

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840

F.2d 985, 986 (1st Cir. 1988); see generally Harris v. N.Y. State

Dept. of Health, 202 F. Supp. 2d 143, 155 (S.D.N.Y. 2002)

(“[A]s is common wisdom, even the best laid plans are bound to

contain inherent flaws, and — in the course of their evolution

from idea to reality, from rudiments to perfected model — to

encounter operational and developmental difficulties, and even

to be tested by purposeful hindering or corruption of their

effective functioning.”).

28

alterations are made” when it fails to insist that construction

drawings include certain features. Although rational in vacuo,

14

this reading is unfaithful to the structure of the statute. Price,

370 F.3d at 369. The phrase “or to ensure that the alterations are

made” appears in parentheses immediately following the phrase

“to fail to make such alterations,” indicating that the meaning of

the former phrase is related to, or dependent upon, the latter.

See Peters v. Ashcroft, 383 F.3d 302, 309 (5th Cir. 2004) (noting

that parentheses “reduce[] the grammatical import” of the

language contained therein); see generally Pritchard v. Liggett

& Myers Tobacco Co., 350 F.2d 479, 483 (3d Cir. 1965) (noting

that punctuation can be a relevant factor in statutory

interpretation); SUTHERLAND § 47:15, 261 (favoring rule that

treats punctuation as a relevant factor in statutory construction).

Furthermore, both phrases center around a form of the verb “to

make,” an additional indication that they are, in DIA’s words,

“two sides of the same coin.” See Merrill Lynch, Pierce, Fenner
29

& Smith, Inc. v. Dabit, 547 U.S. 71, 86 (2006) (“Generally,

identical words used in different parts of the same statute are .

. . presumed to have the same meaning.”) (internal quotation and

citation omitted). Given this context, we hesitate to ascribe to

the phrase “ensure that the alterations are made” the broad and

independent meaning SEPTA urges. See Mizrahi v. Gonzales,

492 F.3d 156, 166 (2d Cir. 2007) (declining to ascribe

independent meaning to parenthetical statutory phrase beginning

with word “or” because “it can reasonably be construed to

illustrate or explain” the preceding phrase).

It is more probable that Congress included the

parenthetical and used the passive verb form “are made”

because it recognized that a public entity is rarely the entity that

“make[s]” the alterations. Instead, alterations “are made” by

sundry contractors and subcontractors. Without the

parenthetical, a public entity could immunize itself from

§ 12147(a) liability by delegating renovation projects to private

entities that are not subject to ADA liability. 42 U.S.C. § 12132.

The parenthetical closes this loophole by placing the onus on the

public entity, as opposed to its agents, “to ensure” that

alterations “are made” in an accessible and usable manner.

This interpretation comports with a similar provision in

Title III of the ADA (dealing with public accommodations): 

“[D]iscrimination . . . includes — with respect to

a facility or part thereof that is altered by, on

behalf of, or for the use of an establishment in a

manner that affects or could affect the usability of

the facility or part thereof, a failure to make
30

alterations in such a manner that, to the maximum

extent feasible, the altered portions of the facility

are readily accessible to and usable by individuals

with disabilities.”

42 U.S.C. § 12183(a)(2) (emphasis added). Absent from

§ 12183(a)(2) is the “or to ensure that the alterations are made”

phrase. Instead, the statute provides that the offending

alterations can be made “by” or “on behalf of” a public entity.

This language is consistent with our conclusion that Congress

included the parenthetical phrase in § 12147(a) to cover the

situation in which alterations to a public transportation facility

are made “on behalf of” a public entity.

Moreover, regardless whether the “mak[er]” of the

alterations is the public entity itself or the entity’s agents, the

general activity that § 12147(a) regulates is the same: the

“mak[ing]” of alterations. Cf. 42 U.S.C. § 3604(f)(3)(C)

(regulating the underlying activities of “design[ing] and

construct[ing]” multifamily dwellings) (emphases added). As

discussed, the failure to “make” alterations in a certain manner,

as opposed to “plan” or “design” them, cannot logically occur

until the completion of such alterations.

3.

Finally, to establish whether a public entity committed

the discriminatory acts of “fail[ing] to make” alterations, or

“fail[ing] . . . to ensure that . . . alterations are made” in an

accessible manner, the statute directs us to determine whether

“the altered portions of the facility are readily accessible” —
 See, e.g., DIA, 2006 WL 3392733, at *12 (referring to 15

“SEPTA’s planned renovations”) (emphasis in original); id.

(formulating the question presented as “when, in a suit under the

ADA, a discriminatory action is deemed to have occurred,

where the alleged discriminatory action is the violation of a

statutory obligation to include an accommodation for disabled

individuals in planning and completing a construction project”)

(emphasis added); id. at *14 (noting importance of SEPTA’s

intention to “proceed with the planned construction at the 15th

and Market Street Courtyard without installing an elevator”)

(emphasis added).

31

not whether the portions to be altered will be readily accessible.

42 U.S.C. § 12147(a) (emphases added). The verb tenses

employed by Congress in this phrase (i.e. “altered,” past tense,

and “are,” present tense) further clarify that the time for passing

upon a public entity’s success or failure in complying with the

statute is upon completion of the alterations.

In short, despite the District Court’s repeated emphasis

on SEPTA’s construction plans, the word “plan” is absent 15

from the statute while the phrase “completion of . . . alterations”

is present. Consistent with this language, as well as the structure

and purpose of the statute, we hold that the discriminatory acts

defined by § 12147(a) occur, and the statute of limitations

begins to run, “upon the completion of . . . alterations” to public

transportation facilities.

B.
32

Before discussing the policy considerations underlying

our holding, we clarify the proper application of the discovery

rule as it was the basis of the District Court’s holding and the

subject of extended debate between the parties. The District

Court reasoned:

[In] the absence of any explicit statutory

limitation period . . . the Court must look

elsewhere for guidance as to when a cause of

action such as this one accrues. Under federal

law, a claim accrues on the date when the plaintiff

knows or has reason to know of the injury that is

the basis of the action. To determine the accrual

date of a discrimination claim, a court must focus

on when the discriminatory act occurred, not

when the effect of that act became painful.

DIA, 2006 WL 3392733, at *13-*14 (internal quotations and

citations omitted). Although largely accurate, two corrections

to this statement of law are necessary. First, as discussed in Part

IV.A, in addition to arising from an “explicit statutory”

directive, id. at *13, an accrual date can arise “by implication

from the structure and text of the statute.” Andrews, 534 U.S.

at 27-28. Second, the District Court erred in applying the

discovery rule to establish when DIA’s claims accrued before

first determining, per the terms of § 12147(a), when DIA’s

alleged injuries occurred. These inquiries are analytically

distinct. 

Because a potential plaintiff cannot discover his injury

before it has occurred, the discovery rule only postpones the
33

accrual date of a claim “where the [plaintiff] is unaware of the

injury.” CGB Occupational Therapy, Inc. v. RHA Health Servs.

Inc., 357 F.3d 375, 384 (3d Cir. 2004). It does not accelerate

the accrual date “when the [plaintiff] becomes aware that he will

suffer injury in the future.” Id.; see Podobnik v. U.S. Postal

Serv., 409 F.3d 584, 590 (3d Cir. 2005) (“The discovery rule

delays the initial running of the statute of limitations, but only

until the plaintiff has discovered: (1) that he or she has been

injured; and (2) that this injury has been caused by another

party’s conduct.”) (emphasis added); Oshiver v. Levin, Fishbein,

Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994) (The

discovery rule “postpones the beginning of the limitations period

from the date a plaintiff was wronged until the date a plaintiff

discovers that he or she was injured.”) (emphasis added).

Accordingly, the first step in applying the discovery rule

in a situation like the present is to establish when the injurious

discriminatory act defined by the statute actually occurred. See

Podobnik, 409 F.3d at 590. The second step is to determine

whether that injury was immediately discoverable, or whether

the accrual date will be postponed until it is reasonable to expect

the plaintiff to discover the injury. Oshiver, 38 F.3d at 1386.

Having skipped step one, the District Court’s application of the

discovery rule resulted in an accrual date that preceded the

occurrence of DIA’s alleged injuries.

Because DIA was not injured before SEPTA completed

its alterations, the discovery rule would not have rendered DIA’s

claims untimely.
34

C.

We conclude by reviewing the policy considerations

underlying our holding. See Price, 370 F.3d at 375. In

particular, we appreciate the District Court’s concern that:

[I]t would be impractical to impose upon a

defendant the requirement that it fully complete a

facility modification before having to address any

assertion that modifications that can be clearly

understood from design drawings and

specifications amount to alterations triggering an

obligation under the ADA that might require

significant and material modifications that surely

would have been more easily, efficiently and

economically incorporated well prior to the

completion of the work.

DIA, 2006 WL 3392733, at *13. This concern — that public

entities will incur unnecessary expense if potential plaintiffs can

wait until “the last nail is hammered into place” to bring suit —

is assuaged by a number of mitigating and countervailing

considerations. Id.

First, our interpretation of § 12147(a) does not prevent a

public entity like SEPTA from obtaining preliminary declaratory

relief to ensure ADA compliance prior to commencing

alterations. See 28 U.S.C. § 2201. Declaratory relief is

available “to settle actual controversies before they ripen into

violations of a law or a breach of duty.” United States v. FisherOtis Co., 496 F.2d 1146, 1151 (10th Cir. 1974) (emphasis
35

added); see Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d

643, 647 (3d Cir. 1990). Such relief is appropriate where “there

is a substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality.” Armstrong

World Indus., Inc. by Wolfson v. Adams, 961 F.2d 405, 411 (3d

Cir. 1992) (quoting Md. Cas. Co. v. Pacific Coal & Oil Co., 312

U.S. 270, 273 (1941)).

Although SEPTA’s activities did not ripen into actual

violations of § 12147(a) until SEPTA completed its alterations

to the 15th Street and City Hall Courtyards, a substantial,

immediate, and real controversy existed between SEPTA and

DIA regarding these activities much earlier. On August 3, 2000,

DIA’s attorney, Stephen Gold, wrote to City Commissioner

Edward McLaughlin expressing DIA’s concern that the 15th

Street Courtyard project would not comply with the ADA. Gold

relayed the same concernsto SEPTA throughout 2000 in a series

of meetings with SEPTA and the City. In these meetings, Gold

also discussed SEPTA’s ADA obligations regarding the City

Hall Courtyard project. Because of these interactions, SEPTA

was “anxious” to get a commitment from DIA “that there would

not be a lawsuit” and was undeniably aware that a substantial

controversy existed. Accordingly, to the extent that SEPTA’s

planned “modifications [could be] clearly understood from

design drawings and specifications,” SEPTA could have

obtained a declaratory judgment to assuage its anxieties before

proceeding with construction.

Conversely, our interpretation of § 12147(a) does not

prevent an entity like DIA from seeking an injunction prior to

the commencement of construction to prevent threatened ADA
36

violations. See 43A C.J.S. Injunction § 8 (“A preliminary

injunction is an anticipatory remedy which prevents the

perpetration of a threatened wrong . . . .”); United States v. W.T.

Grant Co., 345 U.S. 629, 633 (1953); Swift & Co. v. United

States, 276 U.S. 311, 326 (1928).

There is little doubt that it would have been better for all

if DIA or SEPTA had sought declaratory or injunctive relief

before construction began. It does not follow, however, that a

claim for relief on the merits under § 12147(a) accrues as soon

as claims for declaratory and injunctive relief accrue. Ramey v.

District 141, 378 F.3d 269, 279 n.4 (2d Cir. 2004) (“[T]he

possibility of maintaining a preliminary injunction proceeding

does not trigger the statute of limitations.”); see Reiter v.

Cooper, 507 U.S. 258, 267 (1993) (“While it is theoretically

possible for a statute to create a cause of action that accrues at

one time for the purposes of calculating when the statue of

limitations begins to run, but at another time for purposes of

bringing suit, we will not infer such an odd result in the absence

of any such indication in the statute.”); Dasgupta v. Univ. of

Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir. 1997) (“If an

employer tells his employee, ‘I am going to infringe your rights

under Title VII at least once every year you work for me,’ this

does not start the statute of limitations running on the future

violations, violations that have not yet been committed.”). The

following hypothetical adapted from our decision in CGB

Occupational Therapy, 357 F.3d at 384 n.9, illustrates our point.

A telephone company informs a homeowner that it has a

right-of-way across the homeowner’s property, and that next

Friday, it plans to utilize the right-of-way to repair an
37

underground line. The homeowner informs the company that he

disputes the parameters of the right-of-way. Upon receiving

notice of this controversy, the phone company could seek a

declaratory judgment to establish the parameters of the right-ofway and protect itself from future trespass liability. See Centel

Cable Television Co. v. Admiral’s Cove Assocs., Ltd., 835 F.2d

1359, 1361 (11th Cir. 1988); Commw. v. Wertelet, 696 A.2d

206, 209-10 (Pa. Super. 1997). Conversely, the homeowner

could obtain an injunction to prevent the phone company from

entering his property until the right-of-way dispute is resolved.

See Wertelet, 696 A.2d at 209-10. Even though both declaratory

and injunctive relief are available, the homeowner has no

trespass claim against the phone company until it physically

enters his property. CGB Occupational Therapy, 357 F.3d at

384 n.9; see United States v. Union Corp., 277 F. Supp. 2d 478,

495 (E.D. Pa. 2003) (citing RESTATEMENT (2D) OF TORTS §

158).

Assume that neither party seeks preliminary relief and the

phone company enters the homeowner’s property. At the

moment of entry, the homeowner’s trespass claim accrues. See

CGB Occupational Therapy, 357 F.3d at 384 n.9; Union Corp.,

277 F. Supp. 2d at 495. It would be incorrect to say that the

statute of limitations on this claim began to run from the time

the parties discovered the dispute regarding the right-of-way.

Similarly, it would be incorrect to say that the statute of

limitations on a § 12147(a) claim begins to run as soon as the

parties discover a controversy that may entitle them to

preliminary declaratory and injunctive relief.
 Although we do not decide this question, we would 16

hesitate to apply the discovery rule in such a manner. The

discovery rule originated as an equitable doctrine to extend the

period during which victims of latent injuries could seek

recovery. Andrews, 534 U.S. at 27 (noting that the “cry for [the

discovery] rule is loudest” in “latent disease and medical

malpractice” cases); Oshiver, 38 F.3d at 1386 n.5 (noting that

38

In light of the availability of preliminary relief to parties

facing the dilemma that confronted DIA and SEPTA, we believe

the District Court’s concern that public entities will be forced to

“re-engineer” completed projects “to add the ADA-compliance

features” is overstated. DIA, 2006 WL 3392733, at *13. That

may be the unfortunate consequence of our decision in this

instance, however.

Second, the District Court’s desire to give public entities

repose from § 12147(a) liability is not advanced by an

interpretation of the statute that incorporates the discovery rule.

See DIA, 2006 WL 3392733, at *13-*14. The discovery rule

dictates that a cause of action accrues when a potential claimant

discovers, or should have discovered, the injury that forms the

basis of his claim. Romero, 404 F.3d at 222. As DIA argues, it

is easy to imagine a situation where an individual with a

disability relocates to Philadelphia many years from now and

attempts to use the 15th Street or City Hall Courtyard for the

first time. A court might fairly conclude that this individual

neither discovered, nor, having moved from some distant locale,

should have discovered, the inaccessibility of these stations until

his arrival there. Perhaps recognizing this danger, Congress 16
“the discovery rule’s origins are in products liability and medical

malpractice cases”). We find nothing latent about the injuries

defined in § 12147(a) because the fact that newly renovated

subway stations do not include elevators should be readily

apparent to any reasonably diligent potential plaintiff.

 As further evidence of the indeterminate nature of 17

SEPTA’s interpretation of § 12147(a), SEPTA’s counsel failed

at oral argument to identify a point during the planning phases

of the 15th Street and City Hall projects (e.g. upon receipt of

funding, approval of blueprints, or letting of contracts) at which

it would have been reasonable to conclude that DIA should have

discovered its alleged injuries.

39

rejected a variable accrual date in favor of a bright-line rule: 17

§ 12147(a) claims accrues “upon the completion of . . .

alterations.” We find nothing “implausible,” much less

imprudent, about this decision. DIA, 2006 WL 3392733, at *13

To the contrary, we find that Congress struck a wise

balance between the plaintiff-friendly accrual rule just described

and the defendant-friendly rule advanced by SEPTA. If

§ 12147(a) dictated that claims accrued during the planning

stages of a project as SEPTA suggests, potential claimants

would be encouraged to sue early and often, and public entities

would have little opportunity to address accessability concerns

informally before being hailed into federal court. See Franconia

Assoc. v. United States, 536 U.S. 129, 146-47 (2002). This

result would be antithetical to Congress’s explicit directive that
40

ADA claims be resolved whenever appropriate through

“alternative means of dispute resolution.” 42 U.S.C. § 12212.

SEPTA’s proffered rule also encourages claimants to

bring unripe lawsuits that rely on “contingent future events that

may not occur as anticipated, or indeed may not occur at all.”

Texas v. United States, 523 U.S. 296, 300 (1998). Here, for

example, SEPTA could have decided to install elevators before

completing its renovations, thus making DIA’s ADA and RA

claims unnecessary.

Third, the facts of this case belie the District Court’s

suggestion that applying the discovery rule to § 12147(a) will

assure that accessibility concerns will be addressed “well prior

to completion of the work.” DIA, 2006 WL 3392733, at *13.

In fact, under the District Court’s accrual theory, DIA could

have filed a timely claim after SEPTA completed the 15th Street

Station renovations. The District Court concluded that DIA had

notice of SEPTA’s allegedly injurious alterations to the 15th

Street Courtyard “no later than November 1, 2000.” DIA, 2006

WL 3392733, at *14. Accepting the District Court’s conclusion

that DIA’s cause of action accrued on this date, DIA would have

had until November 1, 2002 to bring suit. SEPTA completed

construction on the 15th Street Courtyard on August 8, 2002,

three months before November 1, 2002. Thus, it is apparent that

the rule of law established by the District Court is ineffectual in

preventing cases from being brought after construction is

completed.

In sum, although we recognize the District Court’s

concerns about the inefficiency of requiring public entities to
41

address accessibility deficiencies after the expenditure of

substantial resources, that is the “natural effec[t] of the choice

Congress has made” when it included the phrase “upon the

completion of such alterations” in the statute. Ricks, 449 U.S.

at 260 n.11 (citation omitted). We are bound by this choice.

V.

It is undisputed that DIA’s § 12147(a) claims were timely

if the statute of limitations began to run from the date the

alterations to the 15th Street and City Hall Stations were

completed. See App’x 159, 180 (15th Street Courtyard project

completed on August 8, 2002); App’x 2 (Complaint regarding

15th Street Courtyard filed on March 14, 2003); App’x 164,

188, 320 (City Hall Courtyard project completed in August

2003); App’x 11 (Complaint regarding City Hall Courtyard filed

on February 15, 2005). Because we have so held, we reverse the

District Court’s grant of summary judgment in favor of SEPTA

and remand for further proceedings consistent with the opinion.