## Facts

- Five Arlington, Texas residents with mobility impairments who use motorized wheelchairs alleged the City of Arlington recently built and altered public sidewalks, curb ramps, and pedestrian routes that were not wheelchair accessible.
- The residents alleged the inaccessible sidewalks made it dangerous, difficult, or impossible for them to travel around the city and reach public and private destinations.
- The residents sued the city under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).
- The complaint sought injunctive relief requiring the city to bring noncompliant sidewalks and curb ramps into compliance with federal accessibility standards.
- The city argued (1) Title II did not provide a private right of action to enforce accessibility requirements for sidewalks and (2) the claims were barred by Texas’s two-year personal-injury statute of limitations.
- The district court dismissed the action on statute-of-limitations grounds.
- A Fifth Circuit panel initially concluded the residents could proceed, but a later version of the panel opinion took a narrower view of whether sidewalks themselves qualify as a “service, program, or activity” under Title II.
- Both parties sought rehearing en banc.
- The en banc Fifth Circuit addressed whether Title II and § 504 reach newly built and altered city sidewalks and when such claims accrue for limitations purposes.

## Issues

1. Whether Title II of the ADA and § 504 of the Rehabilitation Act permit a private suit to enforce accessibility requirements for newly built and altered public sidewalks.
2. Whether the borrowed state statute of limitations begins to run when the city completes noncompliant sidewalk construction/alteration, or when the plaintiffs knew or should have known they were being denied the benefits of accessible sidewalks.

## Decision

- The Fifth Circuit (en banc) reversed the statute-of-limitations dismissal in significant part and remanded for further proceedings.
- The court held that Title II and § 504 apply to newly built and altered public sidewalks and that plaintiffs may bring a private action to enforce those obligations.
- The court held the limitations period is borrowed from state law (Texas’s two-year personal-injury period), but accrual is governed by federal law.
- Under federal accrual rules, the residents’ claims accrued when they first knew or should have known they were being denied the benefits of accessible sidewalks, not when the sidewalks were built or altered.
- Because the district court used an accrual rule tied to construction/alteration and dismissed at the pleading stage, remand was required to apply the correct accrual standard.

## Legal Principles

- Title II forbids a public entity from excluding a qualified individual with a disability from participation in, or denying the benefits of, the public entity’s services, programs, or activities, or otherwise subjecting the individual to discrimination. 42 U.S.C. § 12132.
- Section 504 similarly bars disability-based exclusion or denial of benefits in programs or activities receiving federal financial assistance. 29 U.S.C. § 794(a).
- Public entities’ obligations regarding accessibility for newly constructed or altered facilities are reflected in Title II’s implementing regulations, including requirements that new construction and alterations be readily accessible and usable by individuals with disabilities. See, e.g., 28 C.F.R. § 35.151.
- Individuals may sue under Title II and § 504 to obtain injunctive relief to remedy barriers that deny meaningful access.
- When a federal statute lacks an express limitations period, courts borrow the forum state’s limitations period for the closest analogue (here, Texas personal-injury claims), while applying federal law to determine when the claim accrues.
- Under federal accrual principles for civil rights claims, accrual occurs when the plaintiff knows or has reason to know of the injury that forms the basis of the action.
- In accessibility cases challenging barriers in the built environment, the injury is the denial of access (or denial of benefits), not the date the city completed construction or alteration.
- A limitations defense is generally an affirmative defense; dismissal on limitations grounds at the pleading stage is improper unless untimeliness is clear under the correct accrual rule.

## Conclusion

The en banc Fifth Circuit held that Title II of the ADA and § 504 of the Rehabilitation Act allow disabled residents to seek injunctive relief to remedy newly built or altered city sidewalks that are not accessible, and that the borrowed Texas two-year limitations period begins when plaintiffs knew or should have known they were denied accessible pedestrian routes, requiring reversal of the limitations-based dismissal and remand.


Frame v. City of Arlington, 657 F.3d 215, cert. Denied, 565 U.S. 1200 (2011)