Miranda B. v. Kitzhaber

O’SCANNLAIN, Circuit Judge,

concurring.

I agree with the State of Oregon that if we had treated the issues at hand in the first instance with the thoughtful consideration that they deserved, we would have reached a different result. Nevertheless, I concur in the court’s reasoned decision: our precedent clearly commands the conclusion that Oregon is not entitled to Eleventh Amendment immunity under Title II of the ADA and that the State waived its Eleventh Amendment immunity under Section 504 of the Rehabilitation Act by accepting federal funds.

I write separately not to belabor my reasoning for why I have concluded our precedent is wrong — I have done so in detail elsewhere, see, e.g., Hason v. Med. Bd. of Cal., 294 F.3d 1166 (9th Cir.2002) (O’Scannlain, J., dissenting from denial of rehearing en banc); Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226 (9th Cir.2002) (O’Scannlain, J., dissenting from denial of rehearing en banc) — but rather to state once again that our precedent in these important areas is far out of step with both our sister circuits and the Supreme Court. 1 As I have stated before, “Clark and Dare have gone the way of the dodo bird and- the wooly mammoth, overtaken and relegated to extinction by the course of events. ‘Clark is now outdated — and Douglas wrong — for failing to recognize the change in the legal landscape of sovereign immunity.’ ” Hason, 294 F.3d at 1171 (O’Scannlain, J., dissenting from denial of rehearing en banc) (citations omitted). A majority of my colleagues, however, has thus far failed to agree that a sea change has occurred in this area which compels undertaking the more detailed ap- *1192 proachs the Supreme Court has demanded of us in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001), and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 , 119 S.Ct. 2219 , 144 L.Ed.2d 605 (1999).

I had hoped that the Supreme Court would grant us a reprieve from one of our blunders when it granted certiorari last year and scheduled oral argument in Hason v. Medical Board of California, 279 F.3d 1167 , 1171, reh’g en banc denied, 294 F.3d 1166 (9th Cir.2002), and cert. dismissed, -U.S.-, 123 S.Ct. 1779 , 155 L.Ed.2d 508 , 2003 WL 1792116 (U.S. Apr. 7, 2003) (No. 02-479), the seminal case in our misguided Title II Eleventh Amendment precedent. Unfortunately, the State of California decided that it no longer wished to present its arguments to the Supreme Court, and petitioned the Court to dismiss its case, which it did. In so doing, the Court foreclosed the chance to consider this important issue for yet another Term, and simultaneously sealed the fate of the State of Oregon here.

I am convinced that the Supreme Court eventually will correct our errors, which we have steadfastly refused to tackle in the first instance; the only question is when. Until such day arrives, however, I am bound by the law of our circuit and therefore concur, no matter my personal view.

. See Hason, 294 F.3d at 1171 (O’Scannlain, J., dissenting from denial of rehearing en banc) (citing Klingler v. Dir., Dep’t of Revenue, 281 F.3d 776, 777 (8th Cir.2002) (affirming pr^-Garrett decision holding that Title II did not validly abrogate State sovereign immunity); Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir.2001); Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir.2001); Erickson v. Bd. of Governors of State Colls. and Univs., 207 F.3d 945, 948 (7th Cir.2000) (questioning the continued authority of Crawford 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. Cuyahoga County 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. Health Scis. 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)). See generally Douglas, 285 F.3d at 1226-31 (O'Scannlain, J., dissenting from denial of rehearing en banc) (citing College Savs. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 , 119 S.Ct. 2219 , 144 L.Ed.2d 605 (1999) (A state’s decision to waive its immunity must be "altogether voluntary,” and; thus, the "test for determining whether a State has waived its immunity from federal court jurisdiction is a stringent one.”); Garcia, 280 F.3d at 110-12 (concluding that state did not waive immunity by accepting federal funds)).