Hason v. Medical Bd. of California
| Citation | 294 F.3d 1166 |
| Decision Date | 26 June 2002 |
| Docket Number | No. 00-55980.,No. 00-55784.,00-55784.,00-55980. |
| Parties | 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 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before GOODWIN, WALLACE and THOMAS, Circuit Judges.
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.
Stubbornly extending enforcement of Title II of the Americans with Disabilities Act ("ADA") against the Nine Western States, today's opinion blithely ignores recent Supreme Court precedent and follows superseded cases of our court instead. It bears repeating: This decision cannot possibly be right. See Vinson v. Thomas, 288 F.3d 1145, 1157-58 (9th Cir.2002) (O'Scannlain, J., dissenting); see also Douglas v. Cal. Dep't of Youth Auth., 285 F.3d 1226, 1226-27 (9th Cir.2002) (). Because Hason all but invites a grant of certiorari and reversal for putting us out of step with the Supreme Court and creating a split with every other circuit to have considered the issue, I must dissent from the order denying en banc rehearing.
This opinion reaffirms two prior decisions of this court — Dare v. California, 191 F.3d 1167 (9th Cir.1999), and Clark v. 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, specifically Board 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 where Hason goes astray.
A bit of history is required to see clearly the misstep that this opinion takes.
It is beyond dispute that recent decisions of the Supreme Court, including Garrett, have fundamentally changed the landscape of Eleventh Amendment jurisprudence. See, e.g., William A. Fletcher, The Eleventh Amendment: Unfinished Business, 75 Notre Dame L. Rev. 843, 843-44 (2000). Garrett in 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.1 Garrett drew on City of Boerne v. 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 (citing Boerne, 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. (citing Boerne, 521 U.S. at 520, 117 S.Ct. 2157). But Garrett also elaborated on the Boerne analysis. For instance, Garrett made 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 ... discrimination by the States against 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 (); id. at 368-69, 121 S.Ct. 955 ().
Moreover, Garrett makes 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, "Garrett specifically 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.
Garrett, then, refined the abrogation inquiry set out in Boerne. Regrettably, however, both cases on which Hason relies — Clark and Dare — were handed down before Garrett was decided. Accordingly, they do not undertake the searching inquiry that Garrett requires.
In Clark, we concluded that the ADA, as a whole, validly abrogated the States' sovereign immunity.2 We first recognized, correctly, that in Cleburne v. Cleburne Living Center, 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 of Garrett. 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 by Garrett; its infirmities are...
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