2 Years to Fix Ramps, Parking, Etc.??
FOR IMMEDIATE RELEASE
FOR INFORMATION CONTACT:
Vinh Nguyen
Southwest ADA Center
713.520.0232
New Legal E-Bulletin: The Statute of Limitations on New Construction
February 4, 2009 – The National Network of ADA Centers are pleased to announce the release of a new legal E-Bulletin on a case that places limits on the time a person has to file a claim against a public entity for not building curb ramps, sidewalks and other areas according to the standards outlined in the ADAAG. Title II regulations mandate that new construction and alterations by state and local governments be designed and built to be accessible and usable by people with disabilities. The holding in this case is alarming because a plaintiff in the Fifth Circuit has only two years to file an ADA lawsuit after something is inaccessibly constructed; not when he encounters the barrier. Read the full treatment of the case at: http://www.swdbtac.org/html/publications/ebulletins/legal/2010/jan2010.html
Please visit http://adaresources.org/ to read more publications produced by the ADA Centers.
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Northwest ADA Center added this information 2/10/2010
Pertinent Pieces of the Decison
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-10630
RICHARD FRAME; WENDELL DECKER; SCOTT UPDIKE; J N, a minor, by
his next friend and mother Gabriela Castro; MARK HAMMAN; JOEY SALAS
Plaintiffs - Appellants
v.
CITY OF ARLINGTON, A Municipal Corporation
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
We have previously held that the Texas two-year statute of limitations for personal injury claims applies in Title II cases filed in Texas federal courts. Holmes v. Texas A&M Univ., 145 F.3d 681, 683-84 (5th Cir. 1998); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2007).
The district court therefore applied the correct statute of limitations. The plaintiffs argue, however, that the district court erred in ruling their claims accrued, and the statute began to run, on the date the City completed any noncompliant construction or alteration, instead of on the date the plaintiffs encountered a noncompliant barrier. The plaintiffs argue in the alternative that the statute of limitations does not apply to their claims because they seek only injunctive relief, and that noncompliant curbs, sidewalks, and parking lots are continuing violations of the ADA that relieve them of the limitations bar.
First, we reject the plaintiffs’ assertion that the statute of limitations does not apply to their claims because they seek only injunctive relief. The plaintiffs cite Voices for Independence v. Pennsylvania Department of Transportation, 2007 WL 2905887 (W.D. Pa.), a district court opinion that held a statute of limitations did not apply in an ADA case seeking only equitable relief. Id. at *16-17. That opinion, in addition to being nonbinding, is also unpersuasive in the light of the fact that courts regularly apply statutes of limitation to claims under Title III of the ADA, for which only injunctive relief is available.5 See, e.g., Gaona v. Town & Country Credit, 324 F.3d 1050, 1054-56 (8th Cir. 2003) (applying Minnesota’s six-year statute of limitations to Title III claim for injunctive relief); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 n.2 (9th Cir. 2002) (holding ongoing violation brought Title III claim for injunctive relief within
California’s one-year limitations period); Sexton v. Otis Coll. of Art & Design Bd. of Directors, 129 F.3d 127, 127 (9th Cir. 1997) (applying California’s one-year statute of limitations to Title III claim for injunctive relief); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547 (7th Cir. 1996), cert. denied, 519 U.S. 1093 (1997) (applying Illinois’s two-year statute of limitations to Title III claim for injunctive relief). We ourselves have recently held that statutes of limitations apply to § 1983 actions that seek only injunctive relief. See Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008). We decline to treat the plaintiffs’ Title II claims differently.
We also reject the plaintiffs’ characterization of noncompliant curbs, sidewalks, and parking lots as continuing violations that bring their claims within the limitations period. The continuing violations doctrine, which typically arises in the context of employment discrimination, relieves a plaintiff of a limitations bar if he can show a series of related acts to him, one or more of which falls within the limitations period. Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). We hesitate to extend that doctrine here, where the alleged violations are not related. A noncompliant curb, for instance, bears no relation to a noncompliant parking lot on the other side of the City.
Furthermore, the concept of a continuing violation plainly is inconsistent with our ultimate holding in this case–which is that the noncompliant construction of a sidewalk constitutes the triggering accrual event for statute of limitations purposes.