Benjamin Kohn v. State Bar of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAMIN KOHN, No. 20-17316

Plaintiff-Appellant, D.C. No. 4:20-cv-

04827-PJH

v.

STATE BAR OF CALIFORNIA; OPINION

CALIFORNIA COMMITTEE OF

BAR EXAMINERS, and Their Agents

in Their Official Capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Submitted October 15, 2024 *

San Francisco, California

Filed October 21, 2024

Before: Kim McLane Wardlaw, Consuelo M. Callahan,

and Jacqueline H. Nguyen, Circuit Judges

Opinion by Judge Wardlaw

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 KOHN V. STATE BAR OF CALIFORNIA

SUMMARY **

Eleventh Amendment Immunity

On remand from the en banc court, the panel vacated the

district court’s dismissal of Benjamin Kohn’s claims that the

State Bar of California’s refusal to provide him certain test-

taking accommodations violated Title II of the Americans

with Disabilities Act, and remanded to the district court for

further proceedings.

The district court dismissed Kohn’s Title II claims on

Eleventh Amendment immunity grounds. The en banc court

reaffirmed that the California State Bar enjoys Eleventh

Amendment immunity in federal court. On remand to the

three-judge panel, Kohn asserted that under Phiffer v.

Columbia River Correctional Institute, 384 F.3d 791 (9th

Cir. 2004), Title II validly abrogates the State Bar’s Eleventh

Amendment immunity as to his claims. The panel held that

intervening Supreme Court precedent in United States v.

Georgia, 546 U.S. 151 (2006), overruled Phiffer and

requires courts to analyze on a claim-by-claim basis whether

Title II validly abrogates state sovereign immunity as to the

specific class of conduct at issue. The panel concluded that

the district court properly recognized the need to engage in

the case-specific analysis outlined by Georgia, but the

district court misapplied the Georgia inquiry. The panel

therefore vacated the district court’s abrogation analysis and

remanded for further consideration.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KOHN V. STATE BAR OF CALIFORNIA 3

The panel addressed additional issues in a concurrently

filed memorandum disposition.

COUNSEL

Gregory R. Michael (argued) and Dorothy C. Yamamoto,

Michael Yamamoto LLP, Berkeley, California, for Plaintiff-

Appellant.

Brady R. Dewar (argued), Rita K. Himes, Robert G. Retana,

Ellin Davtyan, and Jean R. Krasilnikoff, Office of the

General Counsel, State Bar of California, San Francisco,

California; Kirsten Galler, Office of the General Counsel,

State Bar of California, Los Angeles, California; for

Defendants-Appellees.

Jinny Kim and Claudia Center, Disability Rights Advocates,

Berkeley, California; Laura A. Scalia, Legal Aid at Work,

San Francisco; for Amici Curiae Disability Rights Education

and Defense Fund, Legal Aid at Work, et al..

Julian Sarkar, SarkarLaw, San Francsico, California, for

Amicus Curiae SarkarLaw.

4 KOHN V. STATE BAR OF CALIFORNIA

OPINION

WARDLAW, Circuit Judge:

Benjamin Kohn, a licensed attorney, brings a civil rights

lawsuit against the State Bar of California contending that

the State Bar’s refusal to provide him certain test-taking

accommodations violated Title II of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; Section

504 of the Rehabilitation Act, 29 U.S.C. § 794; sections of

the California Government Code, Cal. Gov’t Code §§ 11135

et seq., 12944 et seq.; and California’s Unruh Civil Rights

Act, Cal. Civ. Code § 51(f). 1 The district court dismissed

Kohn’s Title II claims on Eleventh Amendment immunity

grounds. See Kohn v. State Bar of California, 497 F. Supp.

3d 526 (N.D. Cal. 2020) (“Kohn I”). On appeal, Kohn

initially contended that the State Bar is not an “arm of the

state,” and thus can be sued without restriction. We took up

this question en banc, and reaffirmed that the California

State Bar enjoys Eleventh Amendment immunity in federal

court. See Kohn v. State Bar of California, 87 F.4th 1021,

1037–38 (9th Cir. 2023) (en banc) (“Kohn II”).

The en banc court remanded the remaining questions

presented in Kohn’s appeal to our three-judge panel. See id.

at 1038. We now consider Kohn’s alternative contention

that Title II of the ADA validly abrogates the State Bar’s

Eleventh Amendment immunity as to his claims. Relying on

our decision in Phiffer v. Columbia River Correctional

Institute, 384 F.3d 791 (9th Cir. 2004), Kohn asserts that

1

We resolve Kohn’s Title II claims here and address the remaining issues

presented in Kohn’s appeal in a concurrently filed memorandum

disposition.

KOHN V. STATE BAR OF CALIFORNIA 5

Title II validly abrogates the State Bar’s immunity.

However, we hold that the Supreme Court’s decision in

United States v. Georgia, 546 U.S. 151 (2006), abrogated

Phiffer and requires courts to analyze on a claim-by-claim

basis whether Title II validly abrogates state sovereign

immunity as to the specific class of conduct at issue. We

have jurisdiction under 28 U.S.C. § 1291, and for the reasons

explained below, we vacate the dismissal of Kohn’s Title II

claims and remand for further proceedings.

I. STANDARD OF REVIEW

“We review de novo a dismissal on the basis of sovereign

immunity.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824

F.3d 858, 864 (9th Cir. 2016).

II. DISCUSSION

The Eleventh Amendment provides that “[t]he Judicial

power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. “Longstanding Supreme Court precedent has

interpreted this Amendment to immunize states from suit in

federal court by citizens and noncitizens alike.” Kohn II, 87

F.4th at 1025. However, Congress can abrogate this

immunity if it (1) “makes its intention to abrogate

unmistakably clear in the language of the statute” and

(2) “acts pursuant to a valid exercise of its power under § 5

of the Fourteenth Amendment.” Nev. Dep’t of Human Res.

v. Hibbs, 538 U.S. 721, 726 (2003). Kohn contends that

Title II of the ADA meets these criteria.

Title II meets the first criterion. Title II provides that “no

qualified individual with a disability shall, by reason of such

6 KOHN V. STATE BAR OF CALIFORNIA

disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.”

42 U.S.C. § 12132. In enacting the statute, Congress

unequivocally expressed an intent to abrogate state

sovereign immunity. See 42 U.S.C. § 12202 (“A State shall

not be immune under the eleventh amendment to the

Constitution of the United States from an action in [a]

Federal or State court of competent jurisdiction for a

violation of this chapter.”); Georgia, 546 U.S. at 154

(describing § 12202 as an “unequivocal expression of

Congress’s intent to abrogate state sovereign immunity”).

The second, more complex inquiry is whether Congress

enacted Title II “pursuant to a valid exercise of its power

under § 5 of the Fourteenth Amendment.” Hibbs, 538 U.S.

at 726. Congress may abrogate state sovereign immunity for

both “actual violations of the rights guaranteed” in the

Fourteenth Amendment as well as for “‘a somewhat broader

swath of conduct,’ including acts constitutional in

themselves” in order to deter unconstitutional

conduct. Allen v. Cooper, 589 U.S. 248, 260 (2020) (quoting

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)). For

legislation that targets this “broader swath of conduct” to fall

within Congress’s Section 5 authority “‘[t]here must be a

congruence and proportionality between the injury to be

prevented or remedied and the means adopted to that

end.’” Id. at 260–61 (quoting City of Boerne v. Flores, 521

U.S. 507, 520 (1997)).

A.

Citing our decision in Phiffer, Kohn argues that “this

Court has held that Congress validly abrogated state

sovereign immunity as to claims arising properly under Title

KOHN V. STATE BAR OF CALIFORNIA 7

II.” In Phiffer, we considered Title II as a whole and held

that our precedent “clearly commands the conclusion that the

State is not entitled to Eleventh Amendment immunity under

Title II of the ADA.” 384 F.3d at 792. Indeed, we had

previously and repeatedly held that Title II “was a congruent

and proportional exercise of Congress’s enforcement powers

under § 5 of the Fourteenth Amendment that abrogated

Eleventh Amendment immunity.” Dare v. California, 191

F.3d 1167, 1175 (9th Cir. 1999); Clark v. State of Cal., 123

F.3d 1267, 1269 (9th Cir. 1997) (describing Title II’s

abrogation of state sovereign immunity as “valid exercises

of Congress’s power under Section 5 of the Fourteenth

Amendment”).

In Phiffer, we also observed that our court had repeatedly

rejected the argument that “the Supreme Court’s decision

in Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356 (2001), requires us to revisit our

precedent” holding that Title II validly abrogates state

sovereign immunity. 384 F.3d at 792 (citing Hason v. Med.

Bd. of Cal., 279 F.3d 1167, 1171, reh’g en banc denied 294

F.3d 1166 (9th Cir. 2002), and cert. dismissed 538 U.S. 958

(2003); Thomas v. Nakatani, 309 F.3d 1203, 1209 (9th Cir.

2002); Lovell v. Chandler, 303 F.3d 1039, 1050–51 (9th Cir.

2002)). Garrett held that the Eleventh Amendment barred

claims for money damages against the states under Title I of

the ADA, which addresses disability discrimination in

employment. See 531 U.S. at 368 (explaining that

“Congress’ § 5 authority is appropriately exercised only in

response to state transgressions” and finding that “[t]he

legislative record of the ADA . . . fails to show that Congress

did in fact identify a pattern of irrational state discrimination

in employment against the disabled.”). Because “[t]he

Garrett Court expressly declined to decide whether

8 KOHN V. STATE BAR OF CALIFORNIA

Congress validly abrogated state sovereign immunity in

enacting Title II of the ADA,” however, we held in Hason

that “Garrett does not overrule either Clark or Dare.” 279

F.3d at 1171. See also Thomas, 309 F.3d at 1209 (declining

to revisit Hason); Lovell, 303 F.3d at 1050 (reiterating that

“Clark and Dare are still good law” after Garrett).

After Phiffer, the Supreme Court decided Georgia, a

case which raised the question of “whether a disabled inmate

in a state prison may sue the State for money damages under

Title II.” 546 U.S. at 153. The Eleventh Circuit had

dismissed the inmate’s claims on Eleventh Amendment

immunity grounds. See id. at 156. After granting certiorari

to determine “whether Title II of the ADA validly abrogates

state sovereign immunity with respect to the claims at issue,”

id., the Supreme Court held that “insofar as Title II creates a

private cause of action for damages against the States for

conduct that actually violates the Fourteenth Amendment,

Title II validly abrogates state sovereign immunity.” Id. at

159. Finding that “it is not clear precisely what conduct [the

inmate] intended to allege in support of his Title II claims,”

and “it is likewise unclear to what extent the conduct

underlying [his] constitutional claims also violated Title II,”

the Court declined to resolve “the scope of Congress’s

‘prophylactic’ enforcement powers under § 5 of the

Fourteenth Amendment.” Id. at 158–59. The Court

observed that some of the allegations at issue were “quite far

afield from actual constitutional violations . . . or even Title

II violations,” and remanded to permit the plaintiff to amend

the complaint. Id. at 159. The Court instructed that “[o]nce

[the plaintiff’s] complaint is amended, the lower courts will

KOHN V. STATE BAR OF CALIFORNIA 9

be best situated to determine in the first instance, on a claim-

by-claim basis,” the following:

(1) which aspects of the State’s alleged

conduct violated Title II; (2) to what extent

such misconduct also violated the Fourteenth

Amendment; and (3) insofar as such

misconduct violated Title II but did not

violate the Fourteenth Amendment, whether

Congress’s purported abrogation of

sovereign immunity as to that class of

conduct is nevertheless valid.

Id.

Many of our sister circuits have read Georgia to establish

a blueprint for the abrogation analysis: a three-part inquiry

to be undertaken with respect to a specific “class of conduct”

on a “claim-by-claim” basis. See, e.g., Buchanan v. Maine,

469 F.3d 158, 172 (1st Cir. 2006); T.W. v. New York State

Bd. of L. Examiners, No. 22-1661, 2024 WL 3463499 at *5–

6 (2d Cir. July 19, 2024); Geness v. Admin. Off. of

Pennsylvania Cts., 974 F.3d 263, 270 (3d Cir. 2020); Block

v. Texas Bd. of L. Examiners, 952 F.3d 613, 617–18 (5th Cir.

2020); Babcock v. Michigan, 812 F.3d 531, 534–35 (6th Cir.

2016); Klingler v. Dir., Dep’t of Revenue, State of Mo., 455

F.3d 888, 893 (8th Cir. 2006); Brooks v. Colorado Dep’t of

Corr., 12 F.4th 1160, 1168 (10th Cir. 2021); Miller v. King,

449 F.3d 1149, 1150–51 (11th Cir. 2006). This is in

significant tension with our blanket holding in Phiffer that

Title II validly abrogates state sovereign immunity in all of

its applications.

Some district courts in our circuit have, in the wake of

Georgia, “engaged in a case-by-case analysis to determine

10 KOHN V. STATE BAR OF CALIFORNIA

whether a fundamental right is at issue and whether Title II

validly abrogates state sovereign immunity.” Kohn I, 497 F.

Supp. 3d at 535 (collecting cases). Others, however,

continue to apply Phiffer for the proposition that “[i]n the

Ninth Circuit, state agencies are not entitled to Eleventh

Amendment sovereign immunity from suit under Title II of

the ADA.” See, e.g., Ellington v. California Dep’t of Corr.

& Reh., No. 20-cv-9116, 2021 WL 8875769 at *7 n.4 (C.D.

Cal. Oct. 6, 2021). We have never explicitly addressed the

status of Phiffer post-Georgia, though some members of our

court have questioned Phiffer’s categorical holding both

before and after Georgia was decided. See Phiffer, 384 F.3d

at 793 (O’Scannlain, J., concurring) (reading Tennessee v.

Lane, 541 U.S. 509 (2004) to require a “nuanced, case-by-

case analysis”); J.C. ex rel. W.P. v. Cambrian Sch. Dist., 648

F. App’x 652, 655 (9th Cir. 2016) (Wardlaw, J., concurring

in part) (explaining that while “the ADA claim is not barred

by Eleventh Amendment immunity under existing law,” she

would “remand for further consideration” in light of

Georgia).

In our court, a three-judge panel may recognize prior

precedent as overruled only when an intervening precedent

of higher authority is “clearly irreconcilable” with the

precedent. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.

2003) (en banc). We find that Georgia’s claim-by-claim

analysis is “clearly irreconcilable” with Phiffer’s categorical

holding. We therefore conclude that Phiffer has been

overruled by intervening Supreme Court precedent. Going

forward, district courts must undertake the analysis set forth

in Georgia to determine whether, in enacting Title II,

Congress validly abrogated state sovereign immunity as to

the specific class of conduct at issue.

KOHN V. STATE BAR OF CALIFORNIA 11

B.

Here, the district court properly recognized the need to

engage in the case-specific analysis outlined by Georgia.

However, because we conclude that the district court

misapplied the Georgia inquiry, we vacate the district

court’s abrogation analysis and remand for further

consideration.

The Georgia inquiry first asks courts to determine

“which aspects of the State’s alleged conduct violated Title

II.” 546 U.S. at 159. Here, the district court identified the

conduct at issue, observing that “plaintiff alleges that the

misconduct that violated Title II included excessively

burdensome procedures to seek testing accommodations,

delay in responding to his accommodation requests, and

deliberate indifference by failing to provide reasonable

accommodations for all of his prior sittings of the California

Bar Exam.” Kohn I, 497 F. Supp. 3d at 535–36. But the

district court did not evaluate which aspects of the alleged

conduct, if any, violated Title II. The district court then

proceeded to the second part of the Georgia analysis and

concluded that the alleged conduct did not violate the

Fourteenth Amendment. Id. at 538. Finally, the district

court concluded that the third part of Georgia was not

satisfied either, explaining that “plaintiff has cited no

authority demonstrating that, insofar as such misconduct

violated only Title II, that Congress’s purported abrogation

of sovereign immunity is nevertheless valid.” Id.

The district court did not answer the question of which,

if any, of Kohn’s allegations state a Title II claim. It also did

not provide any reasoning supporting its conclusion that

Congress did not prophylactically abrogate sovereign

immunity as to Kohn’s claims. The district court’s Georgia

12 KOHN V. STATE BAR OF CALIFORNIA

analysis thus focused only on the second part of the Georgia

test, but this part of the Georgia test cannot stand alone as a

reason to dismiss a claim on sovereign immunity grounds.

Stated differently, it is not enough for the district court to

hold that the complaint does not allege a constitutional

violation and end there. Even if the complaint does not

allege a constitutional violation, “we must determine

whether Congress’s purported abrogation of sovereign

immunity as to that class of conduct is nevertheless valid.”

See Klingler v. Director, Dept. of Revenue, 455 F.3d 888,

894 (8th Cir. 2006) (quotation marks and citation omitted).

The district court thus erred when it failed to determine

“which aspects of the State’s alleged conduct violated Title

II.” Georgia, 546 U.S. at 159.

We hold that while the district court is not bound to

analyze the Georgia inquiry in any particular order, it cannot

begin and end its analysis with the second part of the

Georgia test. Of course, if a plaintiff fails to state a claim

under Title II, dismissal is appropriate. The same is true if

there is neither an alleged Fourteenth Amendment violation

nor a prophylactic abrogation of state sovereign immunity

for the “class of conduct” that violated Title II. 2 The

prophylactic abrogation analysis is fact-intensive, requiring

a review of whether there is “congruence and proportionality

2

In holding that courts may choose to conduct the Georgia analysis in

any order it so chooses, we slightly differ from the approach of some of

our sister circuits. The First, Third, Fifth, and Tenth Circuits require

courts to begin with the first part of Georgia’s test before proceeding to

the second and third parts. Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir.

2006); Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 (3d

Cir. 2007); Block v. Texas Bd. of Law Examiners, 952 F.3d 613, 617, 618

n.12 (5th Cir. 2020); Guttman v. Khalsa, 446 F.3d 1027, 1036 (10th Cir.

2006).

KOHN V. STATE BAR OF CALIFORNIA 13

between the injury to be prevented or remedied and the

means adopted to that end.” City of Boerne v. Flores, 521

U.S. 507, 520 (1997), but the district court did not engage in

this analysis, leaving us to guess which of Kohn’s

allegations, if any, were being considered for this

“congruence and proportionality” inquiry.

We thus vacate the district court’s dismissal of Kohn’s

Title II claims and remand for reconsideration consistent

with this opinion. Moreover, the district court shall provide

Kohn with the opportunity to amend his complaint before

proceeding.

III. CONCLUSION

The district court’s dismissal of Kohn’s Title II claims is

vacated. We remand the suit for further proceedings. 3

3

The parties shall bear their own costs on appeal.