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court held, inter alia, that, unlike the access-to-justice statute of limitations for actions arising under federal
issue in the Lane case, "there is no fundamental right to statutes enacted after December 1, 1990.)510
public transportation."503 Furthermore, "Title II is not a In Disabled in Action of Pennsylvania v. Southeast-
congruent and proportional response to the history of ern Pennsylvania Transportation Authority,511 the plain-
disability discrimination in the provision of public tiff Disabled in Action of Pennsylvania argued that
transportation to the disabled, a public accommodation "under the plain language of the statute, its claims ac-
to which they have no fundamental right."504 crued `upon the completion' of alterations to two Phila-
On the other hand, the court held that the plaintiffs' delphia subway stations,"512 the statute in question be-
claim under the Rehabilitation Act could proceed be- ing 42 U.S.C. § 12147(a).513 First, the court noted that
cause INDOT had waived its Eleventh Amendment neither Title II of the ADA nor Section 504 of the Reha-
immunity when it accepted federal funds.505 The court bilitation Act included an express statute of limitations;
observed that 42 U.S.C. § 2000d-7 "conditions a state's the court borrowed Pennsylvania's 2-year statute of
receipt of federal money on its waiver of Eleventh limitations for personal injury claims.514 Second, the
Amendment immunity to actions under 504."506 What- court held that "it is only when renovations are com-
ever INDOT actually knew or believed when it accepted pleted that individuals with disabilities will be excluded
507
federal funds was irrelevant. from accessing and using such facilities while others
In an action against the Washington Metropolitan will not. This is the time at which disabled individuals
Area Transit Authority (WMATA), the court dismissed are subjected to the disparate treatment that
ADA claims against WMATA on the basis of sovereign § 12147(a) was enacted to prevent."515 Thus, the dis-
immunity. As a quasi-public entity, WMATA partakes criminatory acts defined by § 12147(a) occurred and the
of the state sovereign immunity conferred by the Elev- statute of limitations began to run upon the completion
enth Amendment on Virginia and Maryland. However, of the alterations to the public transportation facili-
516
the court treated the dismissed ADA claims as if they ties.
had been brought under the Rehabilitation Act.508
VIII. TITLE III OF THE AMERICANS WITH
H. Statute of Limitations in ADA Cases DISABILITIES ACT AND PRIVATE
Finally, it should be noted that a recent development TRANSPORTATION ENTITIES
in ADA litigation has concerned when the statute of
limitations commences. Federal courts usually borrow
the statute of limitations for personal injury actions in A. Prohibition of Discrimination in Public
the state where a Title II claim arose.509 (It may be Accommodations
noted that following the Goodman decision cited in the Title III of the ADA applies to public accommoda-
preceding footnote, Congress enacted a catchall 4-year tions and services operated or provided by private enti-
ties, including private transportation entities serving
503
Everybody Counts, Inc., 2006 U.S. Dist. LEXIS 39607 at 510
28 U.S.C. § 1658. Subsection (a) provides: "Except as oth-
*29. erwise provided by law, a civil action arising under an Act of
504
Id. at *40. Congress enacted after the date of the enactment of this sec-
505
Id. tion may not be commenced later than 4 years after the cause
506
Id. at *42. Section 2000d-7 provides: of action accrues."
511
539 F.3d 199 (3d Cir. 2008).
A State shall not be immune under the Eleventh Amendment
512
of the Constitution of the United States from suit in Federal Id. at 201.
court for a violation of section 504 of the Rehabilitation Act of 513
42 U.S.C. § 12147(a) (2009) provides:
1973, title IX of the Education Amendments of 1972, the Age
Discrimination Act of 1975, title VI of the Civil Rights Act of With respect to alterations of an existing facility or part
1964, or the provisions of any other Federal statute prohibiting thereof used in the provision of designated public transportation
discrimination by recipients of Federal financial assistance. services that affect or could affect the usability of the facility or
(Emphasis supplied). part thereof, it shall be considered discrimination, for purposes
507 of section 12132 of this title and section 794 of Title 29, for a
Everybody Counts, Inc., 2006 U.S. Dist. LEXIS 39607 at public entity to fail to make such alterations (or to ensure that
*46. the alterations are made) in such a manner that, to the maxi-
508
Disability Rights Council of Greater Wash. v. Wash. mum extent feasible, the altered portions of the facility are
Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006). readily accessible to and usable by individuals with disabilities,
509 including individuals who use wheelchairs, upon the completion
Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.
of such alterations.
Ct. 2617, 96 L. Ed. 2d 572 (1987), superseded by statute as 514
stated in Panariello v. Nassau County, 2009 U.S. Dist. LEXIS Disabled in Action of Pa., 539 F.3d at 208.
515
27045 (E.D.N.Y. Mar. 31, 2009); Okure v. Owens, 816 F.2d 45, Id. at 211.
516
49 (2d Cir. 1987). Id. at 213.
