On Appeal from the District Court for the Eastern District of Pennsylvania (No. 2-03-cv-01577) District Judge: Honorable Gene E. K. Pratter
The opinion of the court was delivered by: Fuentes, Circuit Judge:
Before: SCIRICA, FUENTES, and JORDAN, Circuit Judges
Disabled in Action of Pennsylvania ("DIA") has filed suit claiming that the Southeastern Pennsylvania Transportation Authority ("SEPTA")'s failure to make certain portions of its facilities accessible to individuals with disabilities after undertaking construction work at those facilities violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"), and the Rehabilitation Act, 29 U.S.C. § 794, et seq. ("RA"). On appeal from the District Court's grant of summary judgment in favor of DIA, SEPTA argues that certain regulations issued by the Department of Transportation ("DOT") implementing the ADA establish that it was not required to make those portions of its facilities handicapped-accessible. For the reasons given below, we affirm.
The facts of this case are fairly straightforward. Appellant SEPTA, an agency and instrumentality of the Commonwealth of Pennsylvania, provides public transportation, including train, subway, trolley, and paratransit services in five counties of Pennsylvania. The dispute in this case concerns two separate SEPTA construction projects that involved a total of three of its stations in Philadelphia.
The first of these stations, the 15th and Market Street subway station, serves the Market-Frankford Elevated Subway Line. This station is not accessible to individuals with disabilities. It is connected with the second station in question, Suburban Station, via the extensive underground Penn Center Concourse, which is lined with shops and offices. Suburban Station is a regional rail station.*fn1 On the concourse level connecting Suburban Station and 15th Street Station, at approximately 15th Street and Market, is a courtyard ("the 15th Street Courtyard"). Through underground travel, it is possible to reach either Suburban Station or 15th and Market Street Station from the 15th Street Courtyard.*fn2
In February 2001, as part of a larger renovation project, SEPTA received a permit from the City of Philadelphia (the "City") to begin replacement of the only stairway in the 15th Street Courtyard. The stairs, which had become unusable, were demolished and replaced, but no modifications were made to any load-bearing structure of the 15th Street Courtyard. The work was concluded in August 2002. This project had a budget of approximately $1.5 million dollars; SEPTA's expert estimated that the cost of installing an elevator in addition to the stairs would have made the project $810,000 more expensive. SEPTA has not contended that it would be technically infeasible to install an elevator at that site.
Suburban Station is a "key station" in the SEPTA system and is therefore subject to special accessibility requirements under the ADA. In 2005, as part of its efforts to comply with those accessibility requirements, SEPTA installed two elevators in Suburban Station. The entrance to one of these elevators is on street level at 16th Street between Market Street and JFK Blvd., making it theoretically possible for a person using a wheelchair to descend there to the Penn Center Concourse and travel underground to the 15th Street Courtyard. Otherwise, the 15th Street Courtyard is inaccessible to individuals using wheelchairs.
The third station in question, City Hall Subway Station, is located at Broad Street and Market Street and serves the Broad Street Subway Line.*fn3 It, too, is inaccessible to those in wheelchairs. Before 2002, there was an inoperative escalator leading from a courtyard at the concourse level of City Hall Subway Station to street level in the southeast corner of Philadelphia City Hall Courtyard (the "City Hall Courtyard").
In June 2001, SEPTA undertook extensive repairs to the inoperative escalator at City Hall Courtyard by, among other things, replacing the internal mechanisms within the escalator's wheelwell. Again, no modifications were made to any load-bearing structures. The repairs at City Hall Courtyard cost approximately $1.2 million; SEPTA estimates that the cost of installing an elevator there would raise the total cost to $3.2 million. However, SEPTA has not claimed that it would be technically infeasible to install an elevator there, so long as it had sufficient access to the property.*fn4
B. The District Court's Decision
Appellee DIA is a nonprofit group which advocates for the civil rights of persons with disabilities. It filed a lawsuit against SEPTA in March 2003 alleging that SEPTA had violated both Title II of the ADA and the Rehabilitation Act*fn5
by failing to make the 15th Street Courtyard accessible to those with disabilities after replacing the stairway at that location. SEPTA moved to dismiss, arguing that the City was a required party to the litigation because the City owns the 15th Street Courtyard. That motion was granted as unopposed, but the Court subsequently vacated its order and DIA amended its complaint to add the City as a defendant. In October 2003, DIA filed a second amended complaint. DIA amended its complaint a third time in January 2004, adding an allegation that SEPTA was required to make City Hall Station accessible because that station constituted a "key station" as defined by the ADA and relevant regulations.
In August 2004, DIA and the City reached a settlement in which the City agreed to permit SEPTA to use the City's property to install an elevator at the 15th Street Courtyard.*fn6
In order to resolve DIA's claim that City Hall Station was a key station required to be made handicapped accessible, the City indicated that it would "give permission . for SEPTA to  construct the City Hall Station renovation project which has been discussed by SEPTA and the Plaintiffs in conceptual form for years." It appears that the "renovation project" referenced by the settlement pertains to the construction of an elevator at Dilworth Plaza, which is a different location than the City Hall Courtyard.*fn7 The District Court dismissed the City from the action in light of the settlement.
DIA's fourth and final complaint was filed on February 15, 2005. The fourth amended complaint, which named only SEPTA as a defendant, asserted two claims. Count I contended that SEPTA violated the ADA and RA by making "alterations" to the 15th Street Courtyard and the City Hall Courtyard without also making the affected portions of the facilities accessible to individuals with disabilities. That was the first time in the litigation that DIA alleged that the extensive work conducted on the escalator at City Hall Courtyard constituted an "alteration" within the meaning of the ADA. Count II alleged that SEPTA had violated the ADA and RA by failing to make 15th Street Station and City Hall Station, both allegedly "key stations" within the meaning of the ADA and RA, handicapped accessible. DIA sought relief in the form of, among other things, an injunction requiring SEPTA "to begin construction immediately of elevators  at the [15th Street Courtyard Entrance] to the Market-Frankford ... Line and at the City Hall Station Courtyard's Northwest and Southeast entrances to the Broad Street Subway Line to assure access for persons with disabilities, including persons who use wheelchairs ... ."
DIA and SEPTA later moved for summary judgment against each other. In November 2006, the District Court granted summary judgment in favor of SEPTA, holding that DIA's claims were time-barred. On appeal, we reversed the District Court's decision and remanded the case for further proceedings. See Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth., 539 F.3d 199 (3d Cir. 2008).After remand, both parties again moved for summary judgment on the remaining claims. The District Court granted summary judgment in favor of DIA, finding that SEPTA's work at both the 15th Street Courtyard and City Hall Courtyard ...