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.
O'SCANNLAIN, Circuit Judge, with whom Circuit Judges KOZINSKI, T.G. NELSON, and KLEINFELD join, dissenting from denial of rehearing en banc.
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("ADA") against the Nine Western States, today's opinion blithely ignores recent Supreme Court precedent and follows superseded cases of our court instead.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) (O'Scannlain, J., dissenting from denial of rehearing en banc). 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. 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 ("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.
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
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