This is a situation I see all the time. Let’s say you are at a university. A student goes to disability services, gets an accommodation plan, even gives it to the teacher. The teacher resists. The student may or may not try to fix it until later in the semester figuring that something will develop. Or, I have also seen this, disability services doesn’t have much influence at another one of the University’s schools. That is, disability services focuses on undergraduate programs but the professional schools do their own things regardless of what disability services says. How does a student deal with such a situation and what are the problems? An excellent blog entry discussing all of this can be found here. The question I want to address is a bit different. That is, when does the statute of limitations begin to run. Let’s take a different situation, but analogous. A person with a disability repeatedly notifies a municipality that it is out of compliance with the ADA. Municipality doesn’t do anything to fix the problem. Despite the person’s best efforts, nothing happens. Eventually, the person sues. However, the person sues more than two years after first notifying the City of the problem. The City never fixed the problem. Does the plaintiff lose on statute of limitations grounds. In case you are thinking that this kind of fact pattern is familiar, it is. We discussed that situation here. Turns out that case went up on appeal to the 10th Circuit, and on May 15, 2019, a panel of the 10th Circuit came down with a unanimous opinion adopting the repeated violations doctrine, which definitely bears discussing. Since I have simplified the fact pattern above and also have talked about it extensively in my prior blog entry discussing this case, I am going to dispense with the facts. So, the blog entry is going to be divided into court’s reasoning and takeaways. The reader, of course, is free to focus on any or all of the categories, but probably will wind up reading the whole thing. I want to thank Garret DeReus of Bizer & DeReus in New Orleans for sending the case along to me. I actually had breakfast with Garret when I was attending the Federal Bar Association’s Civil Rights Etouffee in New Orleans. His firm does title II and title III ADA plaintiff work around the country. Congratulations to him on his victory.


Court’s Reasoning

  1. A public entity commits a new violation and the qualified person with the disability experiences a new injury each day when the public entity fails to act. In essence, the statute of limitations functions as a look back by restricting a plaintiff’s right to relief for injury suffered during the limitation period immediately prior to filing suit and while the suit is pending.
  2. A public entity violates title II of the ADA and §504 of the Rehabilitation Act every day it fails to remedy a noncompliant service, program, or activity. Therefore, the statute of limitations limits a plaintiff’s right to relief to injuries for the period during the limitation period counting backwards from the day he or she filed the lawsuit and for any injury sustained while the lawsuit is pending.
  3. The doctrine of repeated violations and the doctrine of continuing violation are different animals entirely. The continuing violation doctrine takes a bunch of different occurrences and combines them into one. On the other hand, the repeated violation doctrine takes each occurrence as a separate matter with a separate statute of limitations attaching to each. If you are a visual person, the court discusses this visually in the opinion. I am definitely not a person who learns by diagrams.
  4. On appeal, the plaintiff argued only for the repeated violation doctrine and let go of the continuing violation doctrine even though both were argued at the District Court level. It turns out that was a very wise move on part of the plaintiff.
  5. A qualified individual with a disability is excluded from participation in, denied the benefits of, and subjected to discrimination under the service, program, or activity of the public entity the day that person is deterred from utilizing them due to its noncompliance. Only when the public entity remedies the noncompliant service, program, or activity or when the plaintiff no longer evidences an attempt to utilize it, does the limitation period end. So, this means the statute of limitation bars recovery only for those injuries incurred outside of the limitation period immediately preceding the day of suit. It also does not bar recovery for injuries incurred within the limitation period or after plaintiff files suit.
  6. Both the language of title II of the ADA, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794, are phrased in the present tense. That suggests a qualified individual currently experiencing discrimination under either law suffers an injury. The phrasing also suggests a qualified individual suffers new discrimination and a new injury each day she cannot utilize a noncompliant service, program, or activity even where the barriers giving rise to the claim are ones encountered before.
  7. Assuming sidewalks and curb cuts are a service, program, or activity of a public entity (the court specifically expresses no opinion on that and remands that question back to the lower court for consideration), a qualified individual with a disability is still excluded from utilizing any given sidewalk or curb cut each day it remains noncompliant.
  8. In a footnote, the 10th Circuit points out that numerous regulations implementing the ADA are also phrased in the present tense.
  9. The United States Supreme Court has recognized that failure to accommodate persons with disabilities often has the same practical effect as outright exclusion, and therefore, title II imposes an affirmative obligation on a public entity to accommodate persons with disabilities.
  10. The duty to accommodate contained both in title II of the ADA and in §504 of the Rehabilitation Act clearly and unambiguously convey that noncompliant services, programs, or activities, give rise to repeated violations. Therefore, failing to act in the face of an affirmative duty equals liability. Also, that means if the entity under the affirmative duty to act fails to act while the underlying problem remains not fixed, then every day’s inaction amount to a new violation.
  11. In a footnote, the court noted that the analogy is to temporary nuisance claims. The continuance of a nuisance is a new nuisance every day. So, as long as the temporary nuisance continues unabated, a plaintiff brings suit effectively on day one of the new limitation period. So, here, where an injury repeatedly occurs so long as the service, program, or activity remains noncompliant and the qualified person with a disability is aware and deterred from utilizing it.
  12. Congressional goals of full participation, inclusion, and integration for qualified individuals with disabilities is also consistent with and strongly suggest that the repeated violation doctrine is the proper one to follow. After all, a qualified individual can’t fully participate or be fully included in a service, program, or activity if the person cannot utilize it in a similar way as a person without a disability. Further, that fact doesn’t change simply because he or she would deterred from utilizing the service, program, or activity many times before.
  13. The key question is whether the qualified individual with a disability can fully participate now (emphasis is in the court’s opinion), in the service, program, or activity. The repeated violation doctrine is perfect for this reality, and it also encourages public entities to comply with their affirmative and ongoing obligation to accommodate a qualified individual with a disability by giving that person the ability to seek relief any time he or she cannot fully participate or is not fully included in the service, program, or activity of the public entity.
  14. In the findings section of the ADA (42 U.S.C. §§12101(a)(8), 12101(b)(4)), Congress used terms such as “continuing existence,” and, “faced day to day by people with disabilities.” Similarly, in the Rehabilitation Act findings, 29 U.S.C. §701(a)(5), it uses the phrase, “individuals with disabilities continually encounter various forms of discrimination.” This kind of language demonstrate that Congress understood a public entity can repeatedly cause a qualified individual with a disability to suffer an injury from the same service, program, or activity and nothing in the text of title II or §504 suggests otherwise.
  15. Congress did not design the ADA or to Rehabilitation Act to allow a public entity to forever prevent a qualified individual with a disability from utilizing a service, program, or activity.
  16. Title II and §504 clearly and unambiguously require application of the repeated violation doctrine.
  17. In a footnote, the court noted that applying the repeated violation doctrine to title II and §504 claims serves the interest of efficiency because more than just the rights of the plaintiff before the court are involved. In fact, many other qualified individuals with disabilities also benefit from a ruling favorable to the plaintiff. So, if the repeating violation doctrine were not to apply, then a basically identical lawsuit but timely suit brought by a different plaintiff would land in the court’s lap soon thereafter.
  18. In these kind of cases, injunctive relief is even more important than damages.
  19. The repeated violation doctrine means that a defendant cannot brandish the statute of limitations as a shield to fully protect themselves from suit. However, they can wield the statute of limitations as a sword to chop off damages arising before the limitation period comes in the play.
  20. The repeated violation doctrine does not eviscerate statute of limitations. Instead, it limits the plaintiff’s ability to recover damages to only those injuries incurred during the limitation period immediately preceding suit as well as to any damages for any injuries incurred after filing suit. So, if a plaintiff first discovers a city’s noncompliant sidewalk and curb cuts in 1996 but still bring suit in October of 2016, that plaintiff does not get damages for every injury sustained throughout those 20 years. Instead, the damages would be restrictive than those injury suffered before October of 2014. Similarly, the court noted in a footnote, that if a plaintiff conceded that in 2016 the public entity completely and entirely remedied the problem, then plaintiff’s claims would be entirely barred even with the repeated violation doctrine.
  21. When it comes to damages under title II of the ADA and §504, Supreme Court precedent rules out punitive damages. Also, any damages have to be intentional. The requirement that damages have to be intentional, is an additional limitation on the public entity’s liability under title II and §504.
  22. The court doesn’t have a problem with the repeated violation doctrine meaning that public entities are on the hook for injunctive relief as the years go by. That doesn’t raise any red flags because Congress was quite specific in demanding full participation, inclusion, and integration in society for those with disabilities. Further, this give public entities and incentive to remedy noncompliant services, programs, or activities in a reasonable and efficient manner to ensure full participation. Finally, public entities can moot the whole problem by simply making their program, services, and activities accessible for persons with disabilities.
  23. As we have talked before in our blog, another limitation that a plaintiff has to deal with with respect to injunctive relief, is that they no longer suffer an injury once they stop asserting an intent to return to where the violations are occurring. So, if a plaintiff were to move away and had no intent to return, any such injury disappears. Finally, the doctrine of laches can also come into play when it comes to injunctive relief.



  1. This is the first Circuit that I know of adopting the repeated violation doctrine. The repeated violation doctrine has important differences from the continuing violation doctrine, which is almost impossible to get a federal court to apply.
  2. I expect this decision to have a big impact on title II entities and on entities taking federal funds, particularly colleges and universities. It isn’t unusual at all for a plaintiff dealing with either to run into a brick wall.
  3. The grammatical tense used by the disability antidiscrimination laws and their final implementing regulations do, in my opinion, give support to the repeated violation doctrine. I also find the congressional findings discussion and the temporary nuisance analogy persuasive. The repeated violation doctrine also takes into account the day-to-day realities faced by people with disabilities.
  4. Repeated violation doctrine is not an open-ended situation for statute of limitations. Think of it as a look back. So, if a person deals with a two-year statute of limitations, then the claims that are in play are those arising during the years prior to the filing of the suit.
  5. The case given strong credence to the argument that a failure to accommodate is an adverse action.
  6. This also means that failing to fix the problem creates a new beginning of a statute of limitation timeframe for every day that the problem is not fixed.
  7. Especially at the college and university level, when a student runs into t hat brick wall with the school not carrying out the disability services accommodations, they often have to leave. Having gone through such a crazy experience, the student may not want to return at all. One of the jobs, and not an easy one, of the plaintiff advocate is convincing the student that they should return if given the opportunity because injunctive relief is definitely a plaintiff lawyer wants to have in his or her quiver at the case proceeds.
  8. Under title III of the ADA, damages are not a possibility. All you get is attorney fees and injunctive relief. Under title II of the ADA, damages are possibility if you can show intentional discrimination. Same goes for §504 of the Rehabilitation Act. What this court doesn’t address, it is just what is intentional discrimination. That may vary from jurisdiction to jurisdiction. One of the leading cases discussing this question is from the 11th Circuit, and we discussed that case here. So, in addition to the lower court having to decide whether sidewalks, curbs, and ramps are a program (we did talk about sidewalks previously here as well as here), the lower court is also going to have to figure out just what is intentional discrimination.
  9. For those who do not know, laches is a doctrine that can come into play when seeking equitable remedies, which includes an injunction. That doctrine means that the plaintiff has to come to the matter with clean hands.
  10. The repeated violation doctrine also incentivizes prompt handling of reasonable accommodation requests.