Opinion · Court of Appeals for the Ninth Circuit
Hason v. Medical Board of California
294 F.3d 1166
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 2002-06-26
- Topic
- general
ORDER Judge Thomas has voted to deny the petition for rehearing en banc, and Judges Goodwin and Wallace recommended denial. The full court has been advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.
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UpLaw has not yet analyzed Hason v. Medical Board of California. The absence of a flag is not a finding that it is good law.
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HASON v. MEDICAL BD. OF CALIFORNIA,294 F.3d 1166(9th Cir. 2002)
Michael J. HASON, M.D., Plaintiff-Appellant, v. MEDICAL BOARD OF
CALIFORNIA; Department of Consumer Affairs, State of California; Arlene
Adams, the Director of the Department of Consumer Affairs of the State of
California; Neil Fippin, individually, as the Manager, Licensing Program
of the Medical Board of the State of California; Melinda Acosta,
individually as an official of the Medical Board of the State of D.C.
No. California; Ron Joseph, individually as Executive Director of the
Medical Board of the State of California as Director of the Department
of Consumer Affairs of the State of California; Bruce Hasenkamp,
individually as President of the Division of Licensing of the Medical
Board of the State of California; Ira Lubell, M.D., individually as
President of the Division of Medical Quality of the Medical Board of the
State of California; Carole H. Hurvitz; Anabel A. Imbert; Raquel D. Arias,
Dr.; Klea D. Bertakis, Dr.; Jack Bruner, Dr.; Daniel Livingston; Karen
McElliot; Alan E. Shumacher, Dr.; Kip S. Skidmore, individually as
Member of the Medical Board of the State of California's Division of
Medical Quality; Thomas A. Joas, Dr.; Karen McElliott, individually as
Officer of the Medical Board of the State of California its Division of
Licensing; Bernard Alpert, individually as Officer of the Medical Board
of the State of California its Division of Licensing; Michael I. Sidley,
individually as Executive of the Medical Board of the State of
California's Division of Licensing; Raja Toke, Dr., individually as
Executive of the Medical Board of the State of California's Division of
Licensing; The State of California Senior Investigator,
Defendants-Appellees. Michael J. Hason, M.D., Plaintiff-Appellant, v.
Medical Board of the State of California; Department of Consumer Affairs,
State of California; Arlene Adams, the Director of the Department of
Consumer Affairs of the State of California; Neil Fippin, individually and
as the Manager, Licensing Program of the Medical Board of the State of
California; Melinda Acosta, individually and as an official of the Medical
Board of the State of California; Ron Joseph, individually and as
Executive Director of the Medical Board of the State of California and as
Director of the Department of Consumer Affairs of the State of California;
Bruce Hasenkamp, individually and as President of the Division of
Licensing of the Medical Board of the State of California; Ira Lubell,
M.D., individually and as President of the Division of Medical Quality of
the Medical Board of the State of California; Carole
Page 1167
H. Hurvitz; Anabel A. Imbert; Raquel D. Arias, M.D.; Klea D. Bertakis,
M.D.; Jack Bruner, M.D.; Daniel Livingston; Karen McElliott; Alan E.
Schumacher, M.D.; Kip S. Skidmore, individually and as Members of the
Medical Board of the State of California's Division of Medical Quality;
Thomas A. Joas, M.D.; Karen McElliott, individually and as Officer of the
Medical Board of the State of California and its Division of Licensing;
Bernard Alpert, individually and as Officer of the Medical Board of the
State of California and its Division of Licensing; Michael I. Sidley,
individually and as Executive of the Medical Board of the State of
California's Division of Licensing; Raja Toke, M.D., individually and as
Executive of the Medical Board of the State of California's Division of
Licensing; The State of California; Senior Investigator; Medical Board of
California, Defendants-Appellees.
Nos. 00-55784, 00-55980.
United States Court of Appeals, Ninth Circuit.
June 26, 2002.
Before GOODWIN, WALLACE and THOMAS, Circuit Judges.
ORDER
Judge Thomas has voted to deny the petition for rehearing en banc, and Judges Goodwin and Wallace recommended denial.
The full court has been advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P.35.
The petition for rehearing en banc is DENIED.
I
This opinion reaffirms two prior decisions of this court —Dare v. California,191 F.3d 1167(9th Cir. 1999), andClarkv. California,123 F.3d 1267(9th Cir. 1997) — which concluded that Title II validly abrogated the sovereign immunity of the several States.See Hason v. Med. Bd.,279 F.3d 1167,1170-71(9th Cir. 2002). In so doing, however, it refuses to deal in a meaningful way with intervening Supreme Court precedent, specificallyBoard of Trustees of the University of Alabama v.Garrett,531 U.S. 356,121 S.Ct. 955,148 L.Ed.2d 866(2001). This, in a nutshell, is whereHasongoes astray.
A bit of history is required to see clearly the misstep that this opinion takes.Page 1168
A
It is beyond dispute that recent decisions of the Supreme Court, includingGarrett,have fundamentally changed the landscape of Eleventh Amendment jurisprudence.See, e.g.,William A. Fletcher,The Eleventh Amendment: UnfinishedBusiness,75 Notre Dame L. Rev. 843, 843-44 (2000).Garrettin particular clarified, in extensive detail, the approach that a court must take when addressing a claim that the ADA validly abrogated State sovereign immunity pursuant to section 5 of the Fourteenth Amendment.1Garrettdrew onCity of Boernev. Flores,521 U.S. 507,117 S.Ct. 2157,138 L.Ed.2d 624(1997), which made clear that it was up to the courts to "define the substance of [the] constitutional guarantee" that Congress purported to enforce,Garrett,531 U.S. at 365,121 S.Ct. 955(citingBoerne,521 U.S. at 519-24,117 S.Ct. 2157), and that "§ 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit `congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,'"id.(citingBoerne,521 U.S. at 520,117 S.Ct. 2157). ButGarrettalso elaborated on theBoerneanalysis. For instance,Garrettmade clear that once a court has "determined the metes and bounds of the constitutional right in question," it must examine "whether Congress identified a history and pattern of unconstitutional . . . discriminationby theStatesagainst the disabled."Garrett,531 U.S. at 368,121 S.Ct. 955(emphasis added). A showing of discrimination against the disabled in general, or discrimination by local governments rather than the States themselves, will not do.Id.at 368,121 S.Ct. 955("Just as § 1 of the Fourteenth Amendment applies only to actions committed `under color of state law,' Congress' § 5 authority is appropriately exercised only in response to state transgressions.");id.at 368-69,121 S.Ct. 955(explaining that "[i]t would make no sense to consider constitutional violations on" the part of local governments "when only the States are the beneficiaries of the Eleventh Amendment").
Moreover,Garrettmakes clear that generalizations about disability discrimination and how the ADA is designed to remedy it are inadequate; instead, a court must "dissect the statutory regime in question and carefully compare it to the baseline definition of constitutional action under the Fourteenth Amendment."Reickenbacker v. Foster,274 F.3d 974,981(5th Cir. 2001). Indeed, "Garrettspecifically focused on the burdens of proof, exceptions, and defenses available in Title I of the ADA in order to find that `the rights and remedies created by the ADA against the States raise the same sort of concerns as to congruence and proportionality as were found in [Boerne].'"Id.
B
Garrett,then, refined the abrogation inquiry set out inBoerne.Regrettably, however, both cases on whichHasonrelies —ClarkandDare— were handed down beforeGarrettwas decided. Accordingly, they do not undertake the searching inquiry thatGarrettrequires.Page 1169
1
InClark,we concluded that the ADA, as a whole, validly abrogated the States' sovereign immunity.2We first recognized, correctly, that inCleburne v. Cleburne LivingCenter, Inc.,473 U.S. 432,105 S.Ct. 3249,87 L.Ed.2d 313(1985), the Supreme Court "held that the disabled are protected against discrimination by the Equal Protection Clause."Clark,123 F.3d at 1270. But from there the analysis went astray, at least as seen in hindsight through the lens ofGarrett.Reading the ADA at its most general level, we next observed that the purpose of the ADA was "to prohibit discrimination against the disabled,"id.,and that "Congress explicitly found that persons with disabilities have suffered discrimination,"id.Consequently, we decided that the ADA was "within the scope of appropriate legislation under the Equal Protection Clause as defined by the Supreme Court,"id.,and added as a general afterthought that the Act does not "provide remedies so sweeping that they exceed the harms that they are designed to redress."Id.We therefore concluded that the ADA was "validly enacted under the Fourteenth Amendment."Id.
This minimalist analysis is a far cry from the detailed approach mandated byGarrett;its infirmities are manifest. It is devoid ofany discussion whatsoeverof legislative findings of discriminationby States— and specifically, byStatesrather than bylocal governments.Nor does it analyze any of the specific provisions of Title II to arrive at its sweeping conclusion that Title II does not provide remedies so sweeping that they exceed the harms that they are designed to redress — let alone does it "lay them next to the baseline of what defines constitutional state action under the Fourteenth Amendment,"Reickenbacker,274 F.3d at 981, or "dissect the statutory regime in question and carefully compare it to the baseline definition of constitutional action under the Fourteenth Amendment,"id.,asGarrettrequires.3
2
InDare,we attempted to squareClark'sresult with the Supreme Court's intervening decision inFlorida PrepaidPostsecondary Education Expense Board v. College Savings Bank,527 U.S. 627,119 S.Ct. 2199,144 L.Ed.2d 575(1999). ButDare'sapproach is no more sound thanClark's.LikeClark's,Dare'scongruence analysis deals with legislative findings only of discrimination generally — not of discriminationby States.See Dare,191 F.3d at 1174("When it enacted the ADA, Congress made specific factual findings of arbitrary and invidious discrimination against the disabled. On the basis of these findings, Congress concluded that the ADA was a necessary legislative response to a longPage 1170history of arbitrary and irrational discrimination against people with disabilities.") (citation omitted).Dare'sproportionality analysis is even less tenable, if one can call it an analysis at all:
Having established the ADA's congruence with Congress's power to enforce the Equal Protection Clause, we turn to proportionality. In so doing, we reiterate the importance of deference to Congress in this analysis. The Supreme Court has specifically found protections for people with disabilities to be an area in which Congressional judgment should be given great deference.See[Cleburne,473 U.S. at 442-43,105 S.Ct. 3249]. The ADA is thus an appropriate exercise of § 5 powers if Congress enacted it in response to a widespread problem of unconstitutional discrimination that includes state programs and services and if the ADA's provisions are proportional to the scope of that discrimination.
As noted above, Congress made extensive factual findings regarding the widespread arbitrary and invidious discrimination which disabled people face.See42 U.S.C. § 12101(a). The ADA's particular provisions for each sector then indicate specifically the discrimination which is forbidden and the conduct needed to remedy the discrimination.See42 U.S.C. § 12101et seq.Although Title II's provisions may prohibit some State conduct which would pass muster under rational basis review, the Title's focus is on eliminating the discrimination outlined in the factual findings.Id.at 1175 (footnotes omitted). Again, this sort of blanket generalization, coupled this time with a generous helping of deference to Congress, stands in stark contrast to the provision-by-provision comparison with the constitutional baseline thatGarrettrequires.
II.
In light ofGarrett,then, it is clear that our pre-GarrettTitle II precedents are outdated. YetHasonrefuses to acknowledge this. The discussion in the opinion dealing with abrogation is short; indeed, it comprises all of two paragraphs.See Hason,279 F.3d at 1170-71. It can be summarized as follows: (1)ClarkandDareheld Title II validly abrogated sovereign immunity; (2)Garrettdid not expressly deal with Title II; it dealt only with Title I, and reserved judgment on Title II;ergo(3)ClarkandDareare good law.
This logic breaks down between steps (2) and (3). To be sure, inGarrettthe Court expressly declined to decide whether Congress validly abrogated state sovereign immunity in enacting Title II of the ADA.See Garrett,531 U.S. at 360n. 1,121 S.Ct. 955. But it doesnotfollow that becauseGarrettdid not invalidate Title II, our prior case law upholding it remains relevant. For it is not just theholdingofGarrettthat matters; we must also be mindful of theapproachthe Court set forth there. As the foregoing analysis makes clear, the blunt approach taken inClarkandDarehas now been supplanted with a new, more nuanced inquiry. If we are to followGarrettfaithfully, we must re-analyze our prior precedents accordingly.
Two of our sister circuits have already recognized as much, and have re-analyzedtheirpre-Garrettprecedents holding that Title II validly abrogated States' sovereign immunity. Each has concluded that Title II did not abrogate sovereign immunity — old circuit precedents to the contrary notwithstanding.SeeReickenbacker,274 F.3d at 981(concluding thatGarrett"effectively overruled" prior circuit precedent holding that Title II validly abrogatedPage 1171State sovereign immunity);Thompson v. Colorado,278 F.3d 1020,1034(10th Cir. 2001),cert. denied,___ U.S. ___,122 S.Ct. 1960,152 L.Ed.2d 1021(2002).
Indeed,Hason'sholding, that Title II validly abrogated States' sovereign immunity, period, splits us from seven of our peers that have considered the issue in the post-Garrettworld.Every one,besides us, has gotten the message that something more nuanced is required; we now stand alone.See Klingler v.Dir., Dep't of Revenue,281 F.3d 776,777(8th Cir. 2002) (affirming pre-Garrettdecision holding that Title II did not validly abrogate State sovereign immunity);Reickenbacker,274 F.3d at 983;Thompson,278 F.3d at 1034;Erickson v. Bd. ofGovernors of State Colls. and Univs.,207 F.3d 945,948(7th Cir. 2000) (questioning the continued authority ofCrawford v.Indiana Department of Corrections,115 F.3d 481,487(7th Cir. 1997), which upheld Title II as a valid abrogation of State sovereign immunity),cert. denied,531 U.S. 1190,121 S.Ct. 1187,149 L.Ed.2d 104(2001);see also Popovich v. CuyahogaCounty Court of Common Pleas,276 F.3d 808,812,815-16(6th Cir. 2002) (en banc) (agreeing that Title II is not a valid abrogation of sovereign immunity when Congress is enforcing the Equal Protection Clause, but holding that it is permissible when enforcing the Due Process Clause);Garcia v. S.U.N.Y. HealthScis. Center,280 F.3d 98,110-12(2d Cir. 2001) (holding that Title II actions may only be brought against States if the plaintiff can establish that the "violation was motivated by discriminatory animus or ill will based on the plaintiff's disability");cf. Brown v. N.C. Div. of Motor Vehicles,166 F.3d 698,707(4th Cir. 1999) (holding that a regulation enacted pursuant to Title II did not validly abrogate State sovereign immunity).
III
ClarkandDarehave gone the way of the dodo bird and the wooly mammoth, overtaken and relegated to extinction by the course of events. "Clarkis now outdated — andDouglaswrong — for failing to recognize the change in the legal landscape of sovereign immunity."Douglas,285 F.3d at 1226-27(O'Scannlain, J., dissenting from denial of rehearing en banc). As every circuit to have analyzed the issue now agrees (except, of course, ours), in light ofGarrett,Title II did not abrogate the Eleventh Amendment immunity of the several States.
We should have takenHasonen banc to reconsider, and to overrule,ClarkandDare.I respectfully dissent.
- To be more precise, inGarrettthe Court explicitly addressed only the question of whether Title I of the ADA,42 U.S.C. § 12111et seq.,which prohibits discrimination against the disabled with regard to employment, validly abrogated the States' sovereign immunity. It did not address whether Title II,42 U.S.C. § 12131et seq.,which prohibits discrimination against the disabled by public entities, did so.Garrett,531 U.S. at 360n. 1,121 S.Ct. 955. As I will explain in due course, however, it is the approach set forth inGarrett,rather than any specific teachings about Title I or Title II, which is crucial for purposes of my analysis. ↩
- The claims at issue inClarkwere brought under Title II, but we treated the ADA as a whole. This casts further doubt on the continued validity of the opinion because inGarrett,the Court expressly refused to conflate the separate, detailed inquiries required for each of Title I and Title II.SeeGarrett,531 U.S. at 360n. 1,121 S.Ct. 955. ↩
- For a recent example of how a court might perform this detailed analysis in light ofGarrett,parsing the legislative history of Title II and measuring its provisions against identified instances of discrimination against the disabled by States, seePanzardi-Santiago v. University of Puerto Rico,200 F.Supp.2d 1, (D.Puetro Rico 2002) (Delgado-Colon, Magistrate J.). This careful analysis led Magistrate Judge Delgado-Colon to conclude that "[t]he legislative history of the statute, particularly as to Title II, suffers from the same deficiencies identified by the Supreme Court inKimel[v. Florida Board ofRegents,528 U.S. 62,120 S.Ct. 631,145 L.Ed.2d 522(2000)] andGarrett."Id.at ___, *10;see also id.at ___, *11 (concluding that "Congress exceeded its authority in abrogating the States' Eleventh Amendment immunity in suits brought pursuant to Title II of the ADA"). ↩