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`20-315
`Vega-Ruiz v. Northwell Health
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`United States Court of Appeals
`For the Second Circuit
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`
`AUGUST TERM, 2020
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`Argued: August 18, 2020
`Decided: March 24, 2021
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`Docket No. 20-315
`____________________
`
`
`LISSETTE VEGA-RUIZ,
`Plaintiff-Appellant,
`
`— v. —
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`NORTHWELL HEALTH, (FORMERLY NORTH SHORE-LONG ISLAND JEWISH HEALTH
`SYSTEM), LONG ISLAND JEWISH VALLEY STREAM, LONG ISLAND
`JEWISH MEDICAL CENTER,
`
`Defendants-Appellees.
`____________________
`
`Before: NEWMAN and POOLER, Circuit Judges.1
`____________________
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`
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`Plaintiff-appellant Lissette Vega-Ruiz appeals from a judgment of the
`United States District Court for the Eastern District of New York (Hurley, J.)
`entered on January 14, 2020 granting defendants-appellees’ Rule 12(b)(6) motion
`
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`1 Circuit Judge Peter W. Hall, originally a member of the panel, died before the filing of this
`opinion; the appeal is being decided by the remaining members of the panel, who are in
`agreement. See 2d Cir. IOP E(b).
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`1
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`to dismiss based on plaintiff’s failure to timely file her complaint. We hold that
`Vega-Ruiz’s disability discrimination claim arises under the Affordable Care Act
`for the purposes of 28 U.S.C. § 1658(a), which grants a four-year catchall statute of
`limitations period for all Acts of Congress enacted after December 1, 1990, and
`thus the district court erred in applying a three-year statute of limitations period.
`Vega-Ruiz’s claim was timely. Accordingly, we VACATE and REMAND.
`____________________
`
`ANDREW ROZYNSKI, Eisenberg & Baum, LLP, New York, NY, for Plaintiff-
`Appellant.
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`DANIEL J. LAROSE, Collazo & Keil LLP (John P. Keil, on the brief), New York, NY,
`for Defendants-Appellees.
`____________________
`
`
`Per Curiam:
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`Plaintiff-appellant Lissette Vega-Ruiz appeals from a judgment of the
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`United States District Court for the Eastern District of New York (Hurley, J.)
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`entered on January 14, 2020, granting defendants-appellees’ Federal Rule of Civil
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`Procedure 12(b)(6) motion to dismiss on statute of limitations grounds. In this
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`appeal, we decide whether Vega-Ruiz’s disability discrimination claim arises
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`under the Patient Protection and Affordable Care Act (“ACA”), Pub. L. 111–148,
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`124 Stat 119 (2010), for the purposes of 28 U.S.C. § 1658(a), which provides a four-
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`year catchall statute of limitations period for all Acts of Congress enacted after
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`December 1, 1990. If her claim arises under the ACA, the district court erred in its
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`dismissal. If, however, her claim arises under the Rehabilitation Act, Pub. L. No.
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`2
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`93–112, 87 Stat. 355 (1973), a three-year statute of limitations period applies, and
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`the district court did not err in dismissing her claim. For the reasons described
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`below, we hold that Vega-Ruiz’s claim arose under the ACA and therefore was
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`timely.
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`BACKGROUND
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`Vega-Ruiz is “profoundly deaf,” limiting her English proficiency and her
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`ability to communicate by reading lips. App’x 6. Vega-Ruiz communicates
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`primarily through American Sign Language (“ASL”). On October 13, 2015, Vega-
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`Ruiz accompanied her brother to Long Island Jewish Valley Stream, a facility
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`operated by Northwell Health (collectively, “Northwell”), as his healthcare proxy
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`for a scheduled surgery. During her brother’s visit, Vega-Ruiz requested an ASL
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`interpreter in order to fulfill her duties as a proxy. Instead, Northwell provided a
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`Spanish-speaking language interpreter who communicated to Vega-Ruiz through
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`written notes and lip reading.
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`Three years and three months later, on January 28, 2019, Vega-Ruiz filed a
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`complaint against defendants alleging disability discrimination under the ACA,
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`specifically 42 U.S.C. § 18116(a). On January 14, 2020, the district court dismissed
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`the case for failure to state a claim, concluding that Vega-Ruiz’s claim was
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`3
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`untimely. The district court reasoned, “though the complaint formally alleges a
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`violation of the ACA, Plaintiff’s claim is made possible by the Rehabilitation Act.”
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`Vega-Ruiz v. Northwell Health, 19-cv-0537 (DRH) (AYS), 2020 WL 207949, at *3 (Jan.
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`14, 2020). The district court concluded that the claim was “in effect, a
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`Rehabilitation Act claim” to which New York’s three-year statute of limitations
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`period for personal injury actions applied—a period that expired before Vega-
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`Ruiz’s filing. Id. at *4.
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`DISCUSSION
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`Vega-Ruiz argues that our inquiry should rely solely on the statutory text of
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`both the ACA and Section 1658 because: (1) she raised a claim under the ACA; and
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`(2) the ACA was enacted after December 1, 1990 and does not include a statute of
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`limitations period, thus triggering § 1658’s four-year catchall statute of limitations
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`period. In contrast, Northwell argues that, because Vega-Ruiz’s claim relies on a
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`portion of the ACA that borrows enforcement mechanisms from the Rehabilitation
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`Act, it is not one “arising under” a post-1990 statute—rendering § 1658’s four-year
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`limitations period inapt. Appellee Br. 7, 11-12.
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`Before Congress’ enactment of Section 1658, if a federal statute lacked a
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`limitations period, federal courts looked to the “most appropriate or analogous
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`4
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`state statute of limitations.” Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir.
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`1992) (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987)). The
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`Rehabilitation Act lacks an express statute of limitations; courts thus apply the
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`limitations period of a state’s personal-injury laws. Id. at 127. In New York, this
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`period is three years. Bates v. Long Island R.R. Co., 997 F.2d 1028, 1037 (2d Cir.
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`1993).
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`In 1990, Congress enacted Section 1658 to simplify the previously arduous
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`task of determining which limitations period to apply to an “’Act of Congress’”
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`that did not contain a statute of limitations.2 Jones v. R.R. Donnelly & Sons Co., 541
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`U.S. 369, 379–82 (2004) (quoting 28 U.S.C. § 1658(a)). With Section 1658, Congress
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`created a “uniform federal statute of limitations” that applies when a federal
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`statute fails to set its own limitations period. Id. at 380. Section 1658 provides a
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`four-year catchall limitations period for claims arising under “Acts of Congress”
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`in effect after December 1, 1990 that do not specify a statute of limitations. See 28
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`U.S.C. § 1658(a) (“Except as otherwise provided by law, a civil action arising under
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`2 The practice of borrowing state statutes of limitations created “a number of practical problems,”
`including: “It obligates judges and lawyers to determine the most analogous state law claim; it
`imposes uncertainty on litigants; reliance on varying state laws results in undesirable variance
`among the federal courts and disrupts the development of federal doctrine on the suspension of
`limitation periods.” H.R. Rep. No. 101–734, p. 24 (1990) (internal quotation marks omitted).
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`5
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`an Act of Congress enacted after the date of the enactment of this section may not
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`be commenced later than 4 years after the cause of action accrues.”).
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`The Supreme Court has interpreted Section 1658’s “arising under” language
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`broadly, stating “[t]he history that led to the enactment of § 1658 strongly supports
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`an interpretation that fills more rather than less of the void that has created so
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`much unnecessary work for federal judges.” Jones, 541 U.S. at 380. The Jones Court
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`concluded that Section 1658’s four-year limitations period applies just as much to
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`an “amendment to an existing statute” as it does to a “new, stand-alone statute.”
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`Id. at 381. “What matters,” the Court explained, “is the substantive effect of an
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`enactment—the creation of new rights of action and corresponding liabilities—not
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`the format in which it appears in the Code.” Id. In other words, “a cause of action
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`arises under an Act of Congress enacted after December 1, 1990—and therefore is
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`governed by § 1658’s [four]-year statute of limitations—if the plaintiff’s claim
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`against the defendant was made possible by a post-1990 enactment.” Id. at 382
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`(alteration and internal quotation marks omitted).3
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`3 In Jones, African-American employees brought a class action against their former employer for
`discrimination under § 1981 as amended by the Civil Rights Act of 1991. Jones, 541 U.S. at 371–
`72. The Seventh Circuit had found that, because the claim arose under the unamended pre-1990
`Act of Congress, § 1981, the federal four-year catchall limitations period did not apply. Id. at 374.
`The Supreme Court reversed and remanded, id. at 385, holding that “in this case, petitioners’
`hostile work environment, wrongful termination, and failure to transfer claims ‘ar[ose] under’
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`6
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`To apply the “made possible” standard here, we must look to the
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`Rehabilitation Act, the ACA, and the relationship between them in the context of
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`this cause of action. The Rehabilitation Act applies standards in line with the
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`Americans with Disabilities Act (“ADA”). See McElwee v. Cnty. of Orange, 700 F.3d
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`635, 640 (2d Cir. 2012). The ADA distinguishes between standards required for
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`public entities (Title II), 42 U.S.C. § 12131, and those required for “public
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`accommodations” (Title III), such as the hospital in question, 42 U.S.C.
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`§ 12181(7)(F).
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`Where Title II applies, an entity must give “primary consideration” to the
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`kind of aid requested by a person with a communication disability, though the
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`“type of auxiliary aid or service necessary to ensure effective communication will
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`vary in accordance with the method of communication used by the individual.”
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`28 C.F.R. § 35.160(b)(2). Giving primary consideration means that a Title II entity
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`must “honor the person’s choice, unless it can demonstrate that another equally
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`effective means of communication is available, or that the use of the means chosen
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`would result in a fundamental alteration or in an undue burden.” U.S. Dep’t of
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`Justice, Civil Rights Div., Disability Rights Section, ADA Requirements, Effective
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`the 1991 Act in the sense that petitioners’ causes of action were made possible by that Act,” id. at
`383 (brackets in original).
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`Communication,
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`https://www.ada.gov/effective-comm.pdf
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`(Jan.
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`2014)
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`(hereinafter “DOJ, ADA Requirements”), at 6; accord 28 C.F.R. § Pt. 35, App. A.
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`Under Title III, however, entities are only “encouraged to consult with the
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`person with a disability to discuss what aid or service is appropriate.” DOJ, ADA
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`Requirements at 6 (emphasis omitted). Put simply, Title III entities are not
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`obligated to honor an individual’s choice of aid. See 28 C.F.R. § 36.303(c)(1)(ii) (“A
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`public accommodation should consult with individuals with disabilities whenever
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`possible to determine what type of auxiliary aid is needed to ensure effective
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`communication, but the ultimate decision as to what measures to take rests with
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`the public accommodation, provided that the method chosen results in effective
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`communication.”); 28 C.F.R. § Pt. 36, App. C (“Congress did not intend under
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`[T]itle III to impose upon a public accommodation the requirement that it give
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`primary consideration to the request of the individual with a disability. . . . [T]he
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`Department [of Justice] finds that strongly encouraging consultation with persons
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`with disabilities, in lieu of mandating primary consideration of their expressed
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`choice, is consistent with congressional intent.” (emphasis added)).
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`The ACA diverges from the Rehabilitation Act in that the ACA does not
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`distinguish between Title II public entities and Title III public accommodations.4
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`Instead, the ACA applies Title II requirements to all defendants. See 45 C.F.R. §
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`92.102(a) (“Any entity operating or administering a program or activity under this
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`part shall take appropriate steps to ensure that communications with individuals
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`with disabilities are as effective as communications with others in such programs
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`or activities, in accordance with the standards found at 28 CFR 35.160 through
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`35.164.”).5 In other words, the ACA extends “primary consideration” to
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`4 Both parties agree, however, that the ACA borrows enforcement mechanisms from the
`Rehabilitation Act: “The enforcement mechanisms provided for and available under [the
`Rehabilitation Act] shall apply for purposes of violations of this subsection.” 42 U.S.C. § 18116(a).
`Rehabilitation Act enforcement mechanisms include that persons discriminated against may seek
`injunctive relief, damages, etc.; that the Attorney General may investigate claims and undertake
`periodic compliance reviews; and that private parties and/or the Attorney General may bring
`civil suits. 42 U.S.C. §§ 12133, 12188.
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`5 At the time of the alleged discrimination, proposed rules—now in effect—had been developed
`regarding a change in standards applied to disability discrimination claims under the ACA. The
`rules were proposed on September 8, 2015 and went into effect July 18, 2016. See U.S. Dep’t of
`Health & Human Servs., Nondiscrimination in Health Programs and Activities, 80 Fed. Reg.
`54172 (proposed Sept. 8, 2015). Although those 2016 rules were amended in August 2020, the
`rules relevant to this appeal were not substantively changed. See U.S. Dep’t of Health & Human
`Servs., Nondiscrimination in Health and Health Education Programs or Activities, Delegation of
`Authority, 85 Fed. Reg. 37160-01 (2020); compare 45 C.F.R. § 92.202 (2016 Rule) with 45 C.F.R. §
`92.102 (2020 Rule). Generally, we recognize that proposed agency regulations and interpretations
`carry some persuasive weight. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“The weight
`of such a judgment in a particular case will depend upon the thoroughness evident in [the
`proposed rules’] consideration, the validity of its reasoning, its consistency with earlier and later
`pronouncements, and all those factors which give it power to persuade, if lacking power to
`control.”); see also De La Mota v. United States Dep’t of Educ., 412 F.3d 71, 79 (2d Cir. 2005) (“The
`weight we accord [to a proposed agency interpretation] is determined through Skidmore
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`individuals seeking services at Title III public accommodations. See 28 C.F.R.
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`§ 35.160(b)(2).
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`The issue here is which statute of limitations period to apply to Vega-Ruiz’s
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`claims.6 We conclude that a plaintiff bringing a claim under the ACA presents a
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`different case than a plaintiff alleging the same harm under the Rehabilitation Act.
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`Although Northwell argues for a narrow reading of Section 1658’s “arising under”
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`language and contends that the Rehabilitation Act’s three-year limitations period
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`applies to Vega-Ruiz’s claim, the Supreme Court has foreclosed such a view,
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`holding that a narrow reading of “arising under” would “subvert[] [Congress’s]
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`goal by restricting § 1658 to cases in which the plaintiff’s cause of action is based
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`solely on a post–1990 statute that establishes a new cause of action without
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`analysis.”); Callum v. CVS Health Corp., 137 F. Supp. 3d 817, 850 (D.S.C. 2015) (regarding “[t]he
`weight the Court may afford the preamble and proposed regulations”). While this case is not
`wholly dependent upon the distinctions between the Rehabilitation Act and the ACA, the
`proposed regulations that took effect after Vega-Ruiz’s alleged harm are persuasive. The
`streamlining of treatment afforded defendant-entities is consistent with the existing framework
`of the Rehabilitation Act and has since been adopted as law. It is not unreasonable to give the
`then-proposed, now-realized distinctions between the Rehabilitation Act and the ACA some
`weight as we contemplate Vega-Ruiz’s appeal.
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` 6
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` A recent district court case from the Eastern District of Tennessee, Tomei v. Parkwest Med. Ctr.,
`No. 19-CV-00041 (E.D. Tenn. June 10, 2020), discussed by the parties in their Federal Rule of
`Appellate Procedure 28(j) letters, decided the statute of limitations issue in favor of a four-year
`statute of limitations period and in line with the reasoning of the court in Palacios v. MedStar
`Health, Inc., 298 F. Supp. 3d 87 (D.D.C. 2018) (applying § 1658’s four-year limitations period to an
`ACA discrimination case).
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`reference to preexisting law.” Jones, 541 U.S. at 380–81 (internal quotation marks
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`omitted). Congress, in enacting Section 1658, sought to avoid the precise situation
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`in which we find ourselves today — trying to untangle competing statutes of
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`limitations where the federal statute on which plaintiff’s claim is based lacks its
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`own limitations period. See Jones, 541 U.S. at 382.
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`Vega-Ruiz’s disability claim is “made possible by” the ACA because the
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`ACA changed Northwell’s obligation in this context; the ACA subjected Northwell
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`to the “primary consideration” obligation where it had previously been subjected
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`to the lesser “encouraged to consult” obligation. Id. at 381–82. We therefore must
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`look to Section 1658 and apply a four-year statute of limitations period to Vega-
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`Ruiz’s claim. Her claim is timely. Accordingly, we VACATE and REMAND to
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`the district court for further proceedings consistent with this opinion.
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`11
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