Petition for Writ of Certiorari — Medical Board of California v. Hason

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- FILED

my YD Og 479 SEP 2 5 2002

V3—e—————_ EOE THE OLE

In The

Supreme Court of the Anited States

MEDICAL BOARD OF CALIFORNIA,

Petitioner,

vs.

MICHAEL J. HASON,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General

MANUEL M. MEDEIROS

State Solicitor General

JAMES M. SCHIAVENZA

Senior Assistant Attorney General

CARLOS RAMIREZ

Senior Assistant-Attorney General

JOEL A. DAvIS*

Supervising Deputy Attorney

General

BETH FABER JACOBS

Deputy Attorney General

CALIFORNIA DEPARTMENT OF

JUSTICE

300 South Spring Street—

Los Angeles, California 90013

Telephone: (213) 897-2130

Attorneys for Petitioner

*Counsel of Record

OR CALL COLLECT (402) 342-2831

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 mi

QUESTIONS PRESENTED

Michael Hason applied for licensure as a physician in

California. Pursuant to its mission to protect the public

health and safety, the Medical Board of California denied

Hason’s application. Hason claimed the Medical Board

improperly denied his application on the basis of his

mental illness, and he sued the Board in federal court,

alleging a violation of Title II of the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C.- § 12101 et seq.

The action was dismissed by the district court on grounds

of sovereign immunity. However, reasoning that this

Court’s analysis in Board of Trustees of the University of

Alabama v. Garrett, 531 U.S. 356 (2001) applied only to

Title I of the ADA and not to actions arising under Title II

of that Act, the Ninth Circuit reversed the district court’s

dismissal and held that California’s denial of a medical

license to Hason stated a cause of action for discrimination

under Title II of the ADA. The questions presented are:

1. Does the Eleventh Amendment bar suit under

Title II of the ADA against the California Medical

Board for denial of a medical license based on the

applicant’s mental illness?

2. Does Title II of the ADA limit the authority of the

California Medical Board to deny an applicant li-

censure as a physician because of the applicant’s

mental illness?

LIST OF PARTIES

Petitioner (Defendant and appellee in Court below):

Medical Board of California (an agency of the State of

California)

Respondent (Plaintiff and appellant in Court below):

Michael J. Hason

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................c.ccccceccseeseeeee i

isc scncensbosnsnsuneuinersscecanccveessooses ii

PETITION FOR WRIT OF CERTIORARI ................ 1

I I sol veccascsewsvsavessstevsesonvenseveececsrosens 1

REE IEE a eo 2

CONSTITUTIONAL AND STATUTORY PROVI-

asics cuhsscsctadessndnevepsenssencesacvenconss 3

adores cncdelshusschucuenivaxsbenesenssyaseeseosess 4

REASONS FOR GRANTING THE WRIT ................. 6

I. THE COURT SHOULD GRANT THE PETI-

TION TO RESOLVE A SPLIT AMONG

THE CIRCUITS OVER THE QUESTION

WHETHER THE ELEVENTH AMENDMENT

BARS SUIT AGAINST STATES FOR AL-

LEGED VIOLATION OF TITLE II OF THE

NIT AIL iteahsisndehsabasissbeuscévervuisesacvensbivecsiscet> 6

A. The Ninth Circuit’s Error in Refusing to

Apply this Court’s Garrett Analysis to Ti-

tle II of the ADA Results in the Improper

Abrogation of California’s Sovereign

sods usdanecnnaensuntacwvensede 6

B. There Is a Clear Split among the Cir-

cuits over the Question Whether, in Title

II of the ADA, Congress Has Validly Ab-

rogated State Sovereign Immunity under

the Eleventh Amendment........................ 10

iN et

TABLE OF CONTENTS

Page

II. THE AMERICANS WITH DISABILITIES

ACT DOES NOT LIMIT CALIFORNIA'S

AUTHORITY TO DENY A MEDICAL LI-

CENSE ON THE BASIS OF AN APPLI-

CANT’S MENTAL ILLNESG.......................44. 11

Ce iced chen sisnancecsenscnitsasisnsssdaniiegmuabtnininn 15

RE NTE iv \ciaiiisibistiiitiiepiunnwcitsbiiinnniasiabiniaaiaaaisii App. 1

A. Hason v. Medical Board of California, 279 F.3d

BF Cy Se i eatectisiessincrtnineansscnesconeniasin App. 1

B. U.S. District Court, Case No. CV 99-0426

AHM (RNB), Hason v. Medical Board of Cali-

fornia, Judgment, dated April 27, 2000............ App. 14

C. U.S. District Court, Case No. CV 99-0426

AHM (RNB), Hason v. Medical Board of Cali-

fornia, Order Adopting Findings and Conclu-

sions and Recommendations of United States

Magistrate Judge, filed March 31, 2002........... App. 15

D. U.S. District Court, Case No. CV 99-04264-

AHM (RNB), Hason v. Medical Board of Cali-

fornia, Report and Recommendation of United

States Magistrat> Judge, dated February 1,

TO Snictsnnin alice tchcikalidausgliaeniiainaitinsaiidaemanbadaansiianiinnie App. 17

E. Hason v. Medical Board of California, 294 F.3d

1166 (9th Cir. 2002) (Order Denying Rehearing

en banc; O’Scannlain, J., dissenting)................ App. 26

F. U.S. District Court, Case No. CV 99-0426 AHM

(RNB), Hason v. Medical Board of California,

Civil Complaint, filed on April 21, 1999.............. App. 37

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Margolis, 921 F.Supp. 482 (W.D. Mich.

1995), aff’d, 98 F.3d 1341 (6th Cir. 1996)................ 12, 13

Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356 (2001)............... 1, 5, 6, 7, 8, 10

Bowen v. American Hospital Assn., 476 U.S. 610

STITT idécsctib habia elhacebialishaieisSinculelenscsadesiiiniascmmaneinagateladaenanaiatiabasal 14

Brown v. North Carolina Division of Motor Vehicles,

ee Se Hy Ri trkevtnstansenecteseciventeainiosscienns 11

Clark v. State of California, 123 F.3d 1267 (9th Cir.

ST Pivtitcondhstncscnscdeauntesunntanieacomnieaveasuniakammaitagiaueagas 5, 7, 8,9

Collings v. Longview Fibre Co., 63 F.3d 828 (9th

SF UD p sinkivnsdvscccessiis pieanhisiieasicsedatialeiaukcauboeuasadeaauianlaaes 14

Dare v. California, 191 F.3d 1167 (9th Cir. 1999)........ 5, 7,8

Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226

NI ea IND icin cshnssip i hiaichccaihiaeecllbhiihcennaincnieds 9

Erickson v. Bd. of Governors of State Cols. and

Univs., 207 F.3d 945 (7th Cir. 2000) ...................sssseeseees 10

Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d

Ne Re ED cicicivnskd ssh Sedcssslibliaescieapiebiacciebneceeninibadataianeedes 11

Kiman v. New Hampshire Department of Correc-

CRIN, ree Bie Te Ge ID ceiccnseniitcanncsnstnaceinviicerse 11

Klingler v. Dir., Dep’t of Revenue, 281 F.3d 776 (8th

i Sr stack ticciatisbiighntphentsuincinniansanancesniidbiheisnentbonbubiaiatiocien 10

Popovich v. Cuyahoga County Court of Common

Pleas, 276 F.3d 808 (6th Cir. 2002)......................cccceeeeee 11

Reickenbacker v. Foster, 274 F.3d 974 (5th Cir.

TABLE OF AUTHORITIES — Continued

Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998)................. 13

Thompson v. Colorado, 278 F.3d 1020 (10th Cir.

CONSTITUTION

United States Constitution, XI Amendment...... 1,3, 6, 7, 10

United States Constitution, XIV Amendment...3, 7, 8, 10, 11

FEDERAL STATUTES

28 U.S.C

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Oe IIAT ciahacoicsnninste dak debasiibapiichaiteaibieasiistslidenndausiantiniaidae tiniest 2

42 U.S.C.

Oo I Aihikabsdiacninsiipetaiaiawris bluinecidiobidaddNadaaaeisidicedadeadaiuaaihsaniiibdaiaiam 5

BA ehsahnbicihennsetkisichincenentdlibininnnitlainttnciaaasilaiiaidicniabieiminaaiion 1

DP TUEe Sn casncskcincccobosnkcpetdtestuaabebeechahuludeciiaseemsanseaaambens 3, 11

State STATUTES

Cal. Bus. and Prof. Code

OF PRUNE css soantsnsccasnchavienncdrsdceadercubsesrenssectetiacssebbolelioauessesbaacs 13

TE TIEIEE inchcecenaphnensnctsiingditabecnbitapnibantetadaisiiidedad eich ten talesiaieis 4

FOR, hack ciieatitaccsieeicccisacakins hat seeicancabbiabegeincdsssisdencebinsinnn 4

OF eas cnkid ey ovdhiiiidaccdlecicelcdvn iteitDismscssesninneeneesiacaniniaeadibaadeiateain 4

Vii

TABLE OF AUTHORITIES -— Continued

Page

a ao alasideabichenaeaadl 13

a ll ei 4,13

ET NE ae a ON a Fee ee eM a 13

Cal. Code Civ. Proc.

ail dilighiauslaimmmanuled 13

Cal. Gov. Code

rae a ae et 2 alamiisiabuiniumaienenan 5

PETITION FOR WRIT OF CERTIORARI

Petitioner, the Medical Board of California (“Medical

- Board” or “Board”) respectfully petitions this Court for a

writ of certiorari to review a judgment of the United

States Court of Appeals for the Ninth Circuit that con-

cluded that Title II of the Americans with Disabilities Act

of 1990, 42 U.S.C. § 12101, et seq., abrogated California’s

sovereign immunity under the Eleventh Amendment, and

held that Title II of the Americans With Disabilities Act of

1990 applies to the licensing of physicians by the Califor-

nia Medical Board. In a decision made without the re-

quired abrogation analysis set forth by this Court in Board

of Trustees of the University of Alabama v. Garrett, 531

U.S. 356 (2001), the Ninth Circuit held that the Eleventh

Amendment does not bar suit against the Medical Board

by an individual who claimed he was denied State licen-

sure as a physician based upon his mental illness. The

decision permits respondent to collaterally attack the

Medical Board’s administrative decision under Title II.

Unless this Honorable Court accepts this case for a

writ review, an erroneous decision with significant na-

tional ramifications affecting the public health and safety

will become precedent and California will be improperly

subjected to suit in U.S. District Court without its consent

in abrogation of the Eleventh Amendment.

OPINIONS BELOW

The original decision of the United States Court of

Appeals for the Ninth Circuit, dated February 12, 2002, is

set forth in the Appendix at App. 1 through App. 13, and is

published at 279 F.3d 1167. The order denying a petition

for rehearing en banc, with a dissenting opinion signed by

four judges of the Ninth Circuit, dated June 26, 2002,

appears in the Appendix at App. 26 through App. 36, and

is published at 294 F.3d 1166. The judgment of the United

States District Court for the Central District of California,

dated April 27, 2002, is set forth in Appendix at App. 14,

and the February 1, 2000 Report and Recommendation of

the Magistrate Judge, adopted by the judgment, is set

forth in the Appendix at App. 17 through App. 25.

JURISDICTION

The decision of the United States Court of Appeals for

the Ninth Circuit, denying the petition for rehearing en

banc, was filed and entered on June 26, 2002, and is now

final.

This Court has jurisdiction to review the decision by

writ of certiorari under 28 U.S.C. § 1254(1).

Given the Eleventh Amendment question presented in

this petition, 28 U.S.C. § 2403(a) may apply. Copies of this

petition for writ of certiorari are therefore being served on

the Solicitor General of the United States. The General

Docket of the Court of Appeals for the Ninth Circuit does

not indicate whether the Ninth Circuit served the United

States Attorney for the Central District of California

notice that the appeal drew into question the constitution-

ality of 42 U.S.C. § 12132.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eleventh Amendment of the United States

Constitution states:

“The judicial power of the United States shall not

be construed to extend to any suit in law or in

equity, commenced or prosecuted against one of

the United States by citizens of another state, or

by citizens or subjects of any foreign state.”

The Fourteenth Amendment of the United States

Constitution provides in pertinent part:

“Section 1... No state shall make or enforce any

law which shall abridge the privileges or immu-

nities of citizens of the United States, nor shall

any state deprive any person of life, liberty, or

property, without due process of law, nor deny to

any person within its jurisdiction the equal pro-

tection of the laws.”

“Section 5. The Congress shall have the power to

enforce, by appropriate legislation, the provisions

of this article.”

Title II of the Americans With Disabilities Act of 1990

provides in pertinent part:

“The term ‘public entity means —

(A) any State or local government;

(B) any department, agency, special purpose

district, or other instrumentality of a State...”

42 U.S.C. § 12131.

“...no qualified individual with a disability shall, by

reason of such 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 discrimina-

tion by any such entity.” 42 U.S.C. § 12132.

STATEMENT

In March 1995, respondent Michael J. Hason applied

for a license to practice medicine in the State of California.

In August 1996, based upon the recommendation of an

independent medical examiner who concluded that Hason

was mentally ill, suffering from a history of depression

and multiple drug dependency, the Medical Board of

California denied Hason’s application for licensure with

the State. App. 38 through App. 39, App. 43 through App.

44 J 1, 14-16.’

Hason sought administrative review of the Board’s

decision, and the denial was affirmed after hearing. App.

38, App 45, {7 1, 24. Hason did not seek state court review

of the administrative decision, although such review was

" The Medical Board is an agency within the California Depart-

ment of Consumers Affairs charged with administering the provisions

of California’s Medical Practice Act. Cal. Bus. & Prof. Code § 2000, et

seq. The Board consists of a Division of Licensing and a Division of

Medical Quality. Cal. Bus. & Prof. Code § 2003. The Board’s Division of

Licensing is responsible for the issuance of medical licenses. Cal. Bus.

& Prof. Code § 2005. The Division of Medical Quality is charged with

disciplining licensed physicians who violate the Medical Practice Act.

Cal. Bus. & Prof. Code § 2004. The Board’s primary purpose is protec-

tion of the public and ensuring the safe practice of medicine in the

State. Cal. Bus. & Prof. Code § 2229.

available. See Cal. Govt. Code § 11504, Cal. Code Civ. Proc.

§ 1094.5. Instead, on April 21, 1999, Hason filed the

present action in district court.

In district court, Hason alleged for the first time that

the Board’s denial of his application for licensure violated

the United States Constitution; 42 U.S.C. § 1983; and Title

II of the ADA, 42 U.S.C. § 12132. The complaint also

alleged state tort claims, none of which are at issue in this

proceeding. Hason named as defendants the Medical

Board, and all of its members individually and as officers.

The individual defendants were never served, did not

appear in the district court, and are not parties to this

petition.

On April 27, 2000, the district court issued a judgment

dismissing the federal civil rights claims, the ADA claim,

and the State tort law claims — all without leave to amend

as to the Medical Board. App. 14. The order incorporated a

February 1, 2000 report and recommendation of the

Magistrate Judge, App. 17 through App. 25, concluding

that the claims against the Medical Board and its officers

for damages and injunctive relief were barred by the

Eleventh Amendment. The report also concluded that

Hason did not have a cause of action under Title II of the

ADA with respect to alleged discrimination in the Board’s

decision to deny him a medical license on the basis of a

mental illness.

Hason filed a timely notice of appeal. On February 12,

2002 the Ninth Circuit reversed. App. 3. The court held

that (1) this Court’s Garrett decision, Board of Trustees of

the University of Alabama v. Garrett, 531 U.S. 356 (2001),

did not overrule prior Ninth Circuit decisions, Clark v.

State of California, 123 F.3d 1267 (9th Cir. 1997) and Dare

v. California, 191 F.3d 1167 (9th Cir. 1999), which held

that the State is subject to suit under the ADA despite the

Eleventh Amendment; and (2) that Title II of the ADA

applies to licensing activities of the Medical Board. App. 5

through App. 6, App. 10.’

The Board filed a petition for rehearing en banc,

which was denied on June 26, 2002. Four circuit judges

filed a strongly worded dissenting opinion, authored by

Judge Diarmuid O’Scannlain, which invited a grant of

certiorari and reversal by this Court. App. 26 through App.

36.

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT THE PETI-

TION TO RESOLVE A SPLIT AMONG THE

CIRCUITS OVER THE QUESTION WHETHER

THE ELEVENTH AMENDMENT BARS SUIT

AGAINST STATES FOR ALLEGED VIOLA-

TION OF TITLE If OF THE ADA

A. The Ninth Circuit’s Error in Refusing to

Apply this Court’s Garrett Analysis to Ti-

tle II of the ADA Results in the Improper

Abrogation of California’s Sovereign Im-

munity

As the dissent from the denial of rehearing en banc

emphasized, the Hason opinion does not deal in any

* The court upheld the dismissal of the individual defendants in

their personal capacities, but held that they could be sued in their

official capacities for future injunctive relief.

meaningful way with the Eleventh Amendment abrogation

analysis required by Board of Trustees of the University of

Alabama v. Garrett, 531 U.S. 356 (2001) (Garrett). In

Garrett, this Court analyzed the Eleventh Amendment

immunity with respect to Title I of the ADA, and articu-

lated a framework for analyzing whether the sovereign

immunity granted to the States under the Eleventh

Amendment is abrogated by the enactment. In upholding

Alabama’s sovereign immunity against suit by a university

employee, the Court emphasized that in order to abrogate

state immunity, there must be an unambiguous expression

of Congressional intent to do so, and a valid exercise of

power under §5 of the Fourteenth Amendment. This

Court also explained that in order to invoke §5 (and

abrogate a State’s immunity), the enactment must have

been supported by Congressional findings of a history and

pattern of state violations of the Fourteenth Amendment

and, in addition, that the reach of the statute must be

congruent and proportional to the constitutional wrong it

seeks to remedy. Garrett, 531 U.S. at 365, 368.

The Ninth Circuit virtually ignored this Court's

Eleventh Amendment analysis, relying instead on its own

pre-Garrett decisions, Clark v. State of California, 123 F.3d

1267 (9th Cir. 1997) and Dare v. California, 191 F.3d 1167

(9th Cir. 1999), and holding that, in Title II of the ADA,

Congress validly abrogated Eleventh Amendment immu-

nity. Neither of the circuit’s pre-Garrett decisions included

the type of meaningful analysis that Garrett made clear is

required for determining whether the State retains its

Eleventh Amendment immunities under the ADA. For

example, in Clark, the Ninth Circuit concluded that since

the purpose of the ADA was “to prohibit discrimination

against the disabled,” 121 F.3d at 1270, and that “Con-

gress explicitly found that persons with disabilities have

suffered discrimination,” the ADA was therefore “within

the scope of appropriate legislation” under §5 of the

Fourteenth Amendment.’ Jd. Clark also contains no

_ analysis of the legislative history of the ADA nor any

substantive consideration of “congruence and proportional-

ity.” Nowhere does it address whether there was a history

of discrimination by the States which the federal govern-

ment sought to remedy, an important criterion under

Garrett. See Garrett, 531 U.S. at 368. The analysis is

completely inadequate under Garrett. Similarly, the Dare

Court’s reasoning was circular, acknowledging the “great

deference” to be given to Congress’ findings concerning

protection of the disabled, but failing to reference state

agencies as a target source of that discrimination. None-

theless, the Ninth Circuit considered these cases defini-

tive.

In holding that Title II reflected a valid abrogation of

Eleventh Amendment immunity, the Ninth Circuit distin-

guished Garrett on the sole basis that Garrett dealt with

Title I. But while the holding of Garrett did not squarely

address Title II, this Court’s reasoning most certainly

applies. That is what the other circuits and the Hason

dissent make most clear:

* As noted by the Hason dissent, the claims at issue in Clark were |

brought under Title II, but the Court treated the ADA as a whole, which

casts further doubt on the continued validity of the opinion because in

Garrett, the Court expressly refused to conflate the separate, detailed

inquiries required for each of Title I and Title II. App. 30 through App.

31, n.2. (O’Scannlain, J., dissenting, citing Garrett, 531 U.S. at 360 n.1.)

This sort of blanket generalization, coupled this

time with a generous helping of deference to Con-

gress, stands in stark contrast to the provision-by-

provision comparison with the constitutional

baseline that Garrett requires. App. 30. (emphasis

added).

The very foundation of the Hason decision is thus built on

precedents of sand. Hason, like Dare and Clark before it,

fails to analyze (1) whether Title II was properly enacted

based upon an “identified history and pattern” of unconsti-

tutional discrimination by the States against the disabled

and (2) whether the remedial provisions of Title II are

“congruent and proportional to any constitutional viola-

tion.”

The four judges criticizing the denial of rehearing en

banc recognized the manifest inadequacy of the court’s

opinion and essentially invited the Board to seek review

by this Court:

[TJoday’s opinion blithely ignores recent Supreme

Court precedent and follows superseded cases of

our court instead. It bears repeating: This deci-

sion cannot possibly be right. See Vinson v. Tho-

mas, 288 F.3d 1145, 1157-58 (9th Cir. 2002)

(O’Scannlain, J., dissenting); see also Douglas uv.

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.” App. 27

through App. 28. (O’Scannlain, J., dissenting;

emphasis added).

B. There Is a Clear Split among the Circuits

- over the Question Whether, in Title II of

the ADA, Congress Has Validly Abrogated

State Sovereign Immunity under the

Eleventh Amendment

The Ninth Circuit is the only circuit to have unequivo-

cally refused to apply Garrett to a Title II ADA claim

against a State agency. In fact, two Circuits have recently

overruled their own pre-Garrett decisions: Reickenbacker

v. Foster, 274 F.3d 974, 981 (5th Cir. 2001) (concluding

that Garrett “effectively overruled” prior circuit precedent

holding that Title II validly abrogated State sovereign

immunity) and Thompson v. Colorado, 278 F.3d 1020, 1034

(10th Cir. 2001), cert. denied, 122 S.Ct. 1961, 152 L.Ed.2d

1031 (2002) (holding that the circuit’s prior decision on

Title I was effectively overruled by Garrett and that, under

the Garrett analysis, Title II was also not a valid abroga-

tion of the Eleventh Amendment).

Every other circuit considering the issue has either

held that in Title II Congress did not validly abrogate

Eleventh Amendment immunity, or that such immunity is

still available under certain conditions, all of which are

applicable here. See, e.g., Klingler v. Dir., Dep’t of Revenue,

281 F.3d 776, 777 (8th Cir. 2002) (affirming pre-Garrett

decision holding that in Title II Congress did not validly

abrogate state sovereign immunity); Ericksor v. Bd. of

Governors of State Cols. and Univs., 207 F.3d 945, 948,

951-52 (7th Cir. 2000) (a pre-Garrett decision concluding

that “the ADA does not enforce the Fourteenth Amend-

ment,” as “the legislative findings in [the ADA] contain not

a word about state governments,” and that “nothing” in

the ADA legislative findings or debates “shows or even

asserts” that state governments engaged in irrational

discrimination that would invoke the Fourteenth Amend-

ment); Kiman v. New Hampshire Department of Correc-

tions, 301 F.3d 13 (1st Cir. 2002) (holding Title II is

constitutional to the extent “that Title is applied to cases

in which a court identifies a constitutional violation by the

state,” e.g. Eighth Amendment prohibition of “cruel and

unusual punishment”); 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 Sciences. 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”); and

Brown v. North Carolina Division 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.)

Il. THE AMERICANS WITH DISABILITIES ACT

DOES NOT LIMIT CALIFORNIA’S AUTHOR-

ITY TO DENY A MEDICAL LICENSE ON THE

BASIS OF AN APPLICANT’S MENTAL ILL-

NESS

The Ninth Circuit held that issuance of license to

practice medicine is a “service, program or activity” within

the meaning of Title II of the ADA, 42 U.S.C. §§ 12131(2),

12132. App. 9 through App. 10. The decision is unprece-

dented among the circuits and, the Board contends, is

wrong as a matter of law. Indeed, in a case remarkably

similar to this one, a district court in the Sixth Circuit

came to precisely the opposite conclusion. The Michigan

district court held that the ADA did not apply to the state

medical board’s decision to revoke the medical license of a

physician with a bipolar disorder. Alexander v. Margolis,

921 F.Supp. 482 (W.D. Mich. 1995), aff’d, 98 F.3d 1341

(6th Cir. 1996). The district court reasoned that:

Considering the text of section 12132(2), it is

questionable whether the Board’s duty to license

physicians can be characterized as a “service” being

denied to plaintiff or whether the Board’s refusal to

reinstate his license denies him participation in

“programs or activities provided” by a state en-

tity. The Board of Medicine is, if anything, a ser-

vice, program or activity provided for the public’s

benefit and safety, not for the benefit of any given

individual who does not meet the state’s require-

ments for practicing medicine.

Alexander v. Margolis, 921 F.Supp. at 488 (emphasis

added). The court in Alexander added:

The very nature of the police powers exercised by

state boards of medicine require the state to dis-

criminate on the basis of, among other considera-

tions, a mental condition harmful to the public’s

safety. By the very nature of the practice of medi-

cine, given the physician’s necessary independ-

ence to “practice” his art ... [t]he Board cannot

exercise its duty without the discretion to con-

sider the impact of a mental disability upon one’s

ability to practice with reasonable skill and

safety. The danger of irreparable harm to the

public is too great to deny the Board such discre-

tion. To require otherwise is unreasonable.

Id. (emphasis added).

Alexander correctly states the law, recognizing inher-

ent state power to regulate the practice of medicine for the

public health and safety. Alexander is also consistent with

the First Circuit’s reasoning that, “[iJn determining whether

‘essential eligibility requirements’ are met [for purposes of

42 U.S.C. § 12131(2)], a public entity properly may con-

sider whether an applicant with a disability poses a direct

threat to the health and safety of others.” Theriault v.

Flynn, 162 F.3d 46, 48 (1st Cir. 1998).

The very purpose of California’s Medical Board is to

protect the public, not to provide a “service” for the benefit

of applicants. The California Legislature has repeatedly

emphasized that the purpose of the Board is to “protect

the health, safety, and welfare of the people of California

against incompetent or impaired physicians.” Cal. Bus. &

Prof. Code § 2220. “Protection of the public shall be the

highest priority.” Cal. Bus. & Prof. Code § 2229. California

law includes a comprehensive statutory scheme for ad-

dressing physicians who are mentally ill or whose physical

illness affects their competency, Cal. Bus. & Prof. Code

§ 820, et. seq., and California provides full judicial review

of licensing decisions, Cal. Code of Civil Proc. § 1094.5,

Cal. Bus. & Prof. Code § 2337. As a matter of state policy,

when physician rehabilitation and public protection are

inconsistent, public protection is paramount. Cal. Bus. &

Prof. Code § 2229(c).

Nothing in the statutory scheme of the ADA suggests

that, by enacting Title II, Congress intended to intrude

upon licensing of physicians pursuant to inherent state

police powers. Nor does it show an intent to permit cir-

cumvention of the state’s judicial review process available

to challenge medical board licensing decisions. In Bowen v.

American Hospital Assn., 476 U.S. 610 (1986), this Court

held that anti-discrimination laws were not meant to

intrude upon medically related decisions. The Court

concluded that the regulations governing the care to be

provided to severely disabled infants were not authorized

by the Rehabilitation Act of 1973, and observed that

“Congress has failed to indicate, either in the statute or in

the legislative history, that it envisioned federal superin-

tendence of treatment decisions traditionally entrusted to

state governance.” Jd. at 643. Insofar as the ADA is con-

strued in the same manner as the Rehabilitation Act of

1973, see Collings v. Longview Fibre Co., 63 F.3d 828, 832,

n.3. (9th Cir. 1995), the rationale articulated in Bowen —-

that anti-discrimination laws should not intrude on

medically related decisions — equally applies herein. The

ADA was not intended to be used as a vehicle for “federal

superintendence” of decisions determining the fitness of

individuals for licensure as physicians.

CONCLUSION

For the reasons stated, the Medical Board of Califor-

nia respectfully requests that its petition for writ of

certiorari be granted.

Dated: September 23, 2002

Respectfully submitted,

BILL LOCKYER,

Attorney General

MANUEL M. MEDEIROS

State Solicitor General

JAMES M. SCHIAVENZA

Senior Assistant Attorney General

CARLOS RAMIREZ

Senior Assistant Attorney General

JOEL A. Davis*

Supervising Deputy Attorney

General

BETH FABER JACOBS

Deputy Attorney General

CALIFORNIA DEPARTMENT OF

JUSTICE

Attorneys for Petitioner

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. HASON, M.D., ) No. 00-55784

“or ) DC No.

Plaintiff-Appellant, CV-99-04264-AHM

)

MEDICAL BOARD OF CALI-_?

FORNIA; 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 JO-

SEPH, individually & as Execu- )

tive Director of the Medical )

Board of the State of California )

& as Director of the Department )

of Consumer Affairs of the State )

of California; BRUCE HA- )

SENKAMP, 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 )

App. 2

Board of the State of California;

CAROLE H. HURVITZ; ANA-

BEL A. IMBERT; RAQUEL D.

ARIAS, Dr.; KLEA D. BER-

TAKIS, 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 MCELLI- __s)

OTT, 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 Licens-

ing; RAJA TOKE, Dr., individu-

ally & as Executive of the

Medical Board of the State of

California’s Division of Licens-

ing; THE STATE OF CALIFOR-

NIA & SENIOR

INVESTIGATOR,

Defendants-Appellees.

i a a a a a a oa

Appeal from the United States District Court

For the Central District of California

A. Howard Matz, District Judge, Presiding

App. 3

Argued and Submitted November 6, 2001 —

Pasadena, California

Filed Feb. 12, 2002

Before: Alfred T. Goodwin, J. Clifford Wallace and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Goodwin

COUNSEL ~—

Erwin Chemerinsky, University of Southern California

Law School, Los Angeles, California, for the plaintiff-

appellant. Joel A. Davis, Supervising Deputy Attorney

General, Los Angeles, California, for the defendants-

appellees. .

OPINION

GOODWIN, Circuit Judge:

e—

Dr. Michael J. Hason appeals the dismissal of his pro

se complaint alleging discrimination based on disability in

violation of the United States Constitution and Title II of

the Americans with Disabilities Act [“ADA”]. We have

jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons

that follow we reverse and remand.

BACKGROUND

In March of 1995, Michael J. Hason, M.D., applied for

a license to practice medicine in the state of California. In

April of 1998, the California Medical Board denied, for

reasons of mental illness, Dr. Hason’s application for a

medical license. Dr. Hason subsequently filed a pro se

App. 4

complaint in federal district court alleging violations of his

rightg under the United States Constitution (brought

pursuant to 42 U.S.C. § 1983) and Title II of the ADA, 42

U.S.C. § 12132. The complaint also alleged state law tort

claims which are not at issue on this appeal.

Dr. Hason’s complaint named as defendants The

Medical Board of the State of California (“The Medical

Board”], the Department of Consumer Affairs of the State

of California and its director, and various other individuals

that were either members of or otherwise affiliated with

the Medical Board (in both their official and personal

capacities). Dr. Hason sought both damages and injunctive

relief.

On April 25, 2000, the District Court dismissed Dr.

Hason’s complaint without prejudice as to the individual

defendants in their personal capacities, and with prejudice

as to the two named state agencies and the individual

defendants in their official capacities. The Report and

Recommendation of the United States Magistrate Judge,

which was affirmed in its entirety by the District Court,

stated three reasons for dismissing Dr. Hason’s complaint.

First, the Report concluded that Dr. Hason’s claims were

barred by the Eleventh Amendment. Second, the Report

concluded that Dr. Hason failed to state a claim upon

which relief could be granted under Title II of the ADA.

Third, the Report concluded that Dr. Hason’s claims

against the individual defendants in their personal capaci-

ties should be dismissed for failure to prosecute.

We review de novo the District Court’s dismissal of a

complaint for failure to state a claim upon which relief can

be granted. See NL Indus. v. Kaplan, 792 F.2d 896, 898

(9th Cir. 1986).

App. 5

DISCUSSION

I. Sovereign Immunity

We begin by considering whether the District Court

erred in holding that Dr. Hason’s claims were barred by

the Eleventh Amendment. The Eleventh Amendment

prohibits a private party from suing a nonconsenting state

or its agencies in federal court.’ See Board of Trustees of

Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001);

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000);

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54

(1996); Hans v. Louisiana, 134 U.S. 1, 15 (1890). The

Eleventh Amendment does not, however, prevent a private

litigant from suing a state or its agencies in federal court

where Congress has abrogated state sovereign immunity

acting pursuant to section 5 of the Fourteenth Amend-

ment. We have previously held that in enacting Title II of

the ADA Congress validly abrogated state sovereign immu-

nity, and thus states and their agencies may be sued pursu-

ant to Title II. See Dare v. California, 191 F.3d 1167, 1175

(9th Cir. 1999); Clark v. California, 123 F.3d 1267, 1270-71

(9th Cir. 1997); see also Patricia v. Lemahieu, 141 F.Supp.2d

1243, 1248 (D. Haw. 2001) (observing that the Ninth Circuit

has twice rejected the argument that Congress exceeded its

constitutional authority in abrogating state sovereign

immunity pursuant to Title II of the ADA).

* The Eleventh Amendment provides: “The 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.”

App. 6

Appellees contend, however, that the Supreme Court’s

recent decision in Garrett overrules both Clark and Dare.

In Garrett, the Court held that Congress did not validly

abrogate state sovereign immunity in enacting Title I of

the ADA. See Garrett, 531 U.S. at 360. The Garrett Court

expressly declined to decide whether Congress validly

abrogated state sovereign immunity in enacting Title II of

the ADA. See id. at 360 n. 1. We therefore conclude that

Garrett does not overrule either Clark or Dare, and that

the Eleventh Amendment does not bar Dr. Hason’s Title II

claims.

The District Court also erred in its treatment of Dr.

Hason’s federal civil rights claims, brought pursuant to 42

U.S.C. § 1983, against the various individual state offi-

cials. The District Court held that Dr. Hason’s section 1983

claims were barred by the Eleventh Amendment. In so

holding, the District Court failed to recognize the long-

established exception to Eleventh Amendment immunity

carved out by Ex Parte Young, 209 U.S. 123 (1908). The Ex

Parte Young doctrine provides that the Eleventh Amend-

ment does not bar suits for prospective injunctive relief

brought against state officers “in their official capacities,

to enjoin an alleged ongoing violation of federal law.” Agua

Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d

1041, 1045 (9th Cir. 2000); see also Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 269 (1997); Seminole Tribe of

Florida, 517 U.S. at 73; Children’s Hosp. and Health Ctr. v.

Belshe, 188 F.3d 1090, 1095 (9th Cir. 1999); Armstrong v.

Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). Dr. Hason’s

complaint clearly seeks prospective injunctive relief to

enjoin the individual defendants’ refusal to issue Dr.

Hason a medical license. Thus, under the doctrine of Ex

Parte Young, Dr. Hason’s section 1983 claims seeking

App. 7

prospective injunctive relief from the individual defen-

dants are not barred by the Eleventh Amendment. The

District Court erred in concluding otherwise.

II. Title Il of the ADA

We next consider the District Court’s dismissal of Dr.

Hason’s complaint for failure to state a claim for which

relief can be granted under Title II of the ADA. Title II of

the ADA provides that “no qualified individual with a

disability shall, by reason of such 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. The District Court dismissed Dr. Hason’s com-

plaint based on the magistrate judge’s two-fold conclusion

that (1) the denial of a medical license cannot be chal-

lenged under Title II of the ADA because a medical license

does not constitute “services, programs, or activities of a

public entity” and (2) Dr. Hason is not a “qualified individ-

ual with a disability” within the meaning of Title II of the

ADA.

With respect to the first of the two above grounds for

dismissal, Dr. Hason contends that his complaint properly

states a claim because a medical license constitutes

“services, programs, or activities of a public entity” under

Title II. Dr. Hason argues that the magistrate judge’s

interpretation of the phrase “services, programs, or activi-

ties” to exclude medical licensing is at odds with both the

plain language and remedial goals of Title II.

[2] In response, Appellees argue that Title II was not

intended to apply to professional licensing. Appellees rely

primarily on Zimmerman v. Oregon Department of Justice,

App. 8

170 F.3d 1169 (9th Cir. 1999). In Zimmerman, the plain-

tiff brought an action against his employer alleging that

the employer’s practices discriminated against him in

violation of Title II of the ADA. This Court affirmed the

district court’s holding that Title II of the ADA does not

apply to employment. See id. at 1184. In doing so, we

conducted a thorough examination of both the wording of

Title II and the structure of the ADA, concluding that

Congress intended for Title II to apply only to the “out-

puts” of a public agency, not to “inputs” such as employ-

ment. See id. at 1173-79.”

Relying on Zimmerman, Appellees contend that

medical licensing does not fall within the scope of Title I

because medical licensing is not an “output” of a public

agency. According to Appellees, medical licensing is not an

“output” because it is a service provided for the benefit of

the public at large, not for the benefit of applicants seek-

ing to obtain medical licenses. See Alexander v. Margolis,

921 F.Supp. 482, 488 (W.D. Mich. 1995) (observing that

“(t]he Board of Medicine is, if anything, a service, program

or activity provided for the public’s benefit and safety, not

* The Zimmerman court illuminated the “input”/output” distinc-

tion with the following example: “[Clonsider how a member of the

public would answer the question, ‘What are the services, programs,

and activities of the Parks Department in which you want to partici-

pate, or whose benefits you seek to receive?’ The individual might

answer, ‘I want to participate in the Wednesday night basketball

league, or find out about the free children’s programs for the summer

months.’ The individual would not logically answer, ‘I want to go to

work for the Parks Department.’” Zimmerman, 170 F.3d at 1174. The

Zimmerman court considered both the basketball league and the

children’s programs to be “outputs,” and it considered an individual

going to work for the Parks Department to be an “input.”

oes dati

App. 9

for the benefit of any given individual who does not meet

the state’s requirements for practicing medicine”).

[3] We are not persuaded by Appellees’ argument.

Viewed in the light of the Zimmerman framework, medical

licensing is an output of a public agency, not an input such

as employment. The act of licensing involves the Medical

Board (i.e. a “public agency”) providing a license (i.e. provid-

ing a “service”) to an applicant for a medical license.

Although medical licensing does occur within the employ-

ment context, medical licensing is not equivalent to employ-

ment. The Medical Board does not make employment

decisions, and the Board’s grant of a license is not tanta-

mount to a promise or guarantee of employment as a

physician.

Furthermore, the magistrate judge’s narrow construc-

tion of the phrase “services, programs, or activities” is at

odds with the remedial goals underlying the ADA. See

Arnold v. United Parcel Serv., Inc., 1386 F.3d 854, 861 (1st

Cir. 1998) (observing that the ADA is a remedial statute

which should be construed broadly); Kornblau v. Dade

County, 86 F.3d 193, 194 (11th Cir. 1996) (same); see also

Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (recogniz-

ing the “familiar canon of statutory construction that reme-

dial legislation should be construed broadly to effectuate

its purposes”). Courts must construe the language of the

ADA broadly in order to effectively implement the ADA’s

fundamental purpose of “provid[ing] a clear and compre-

hensive national mandate for the elimination of discrimi-

nation against individuals with disabilities.” Arnold, 136

F.3d at 861 (quoting 42 U.S.C. § 12101(b)(1) (1994)). In fact,

this court has already capitalized upon the opportunity to

construe broadly the language of Title II. In Lee v. City of

Los Angeles we stated in the Title II context that “the

App. 10

ADA’s broad language brings within its scope anything a

public entity does.” Lee v. City of Los Angeles, 250 F.3d

668, 691 (9th Cir. 2001) (citation and internal quotations

omitted). Medical licensing is without a doubt something

that the Medical Board “does.” As such, we conclude that

medical licensing clearly falls within the scope of Title II.°

The second major reason given by the magistrate

judge for dismissing Dr. Hason’s Title II claims was that

Dr. Hason was not a “qualified individual with a disabil-

ity” within the meaning of Title II of the ADA. Title II

defines this requirement as follows:

The term “qualified individual with a disability”

means an individual with a disability: who, with

or without reasonable modifications to rules,

policies, or practices, the removal of architec-

tural, communication, or transportation barriers,

* Dr. Hason also argues that, regardless of whether a medical

license constitutes a service, program, or activity of a public entity, his

complaint states a claim under Title II of the ADA. As noted above, Title

II provides that “no qualified individual with a disability shall, by

reason of such 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

(emphasis added). Dr. Hason construes the second clause of Title II (i.e.

“or be subjected to discrimination by any such entity”) as providing a

blanket cause of action for any type of discrimination by a public entity,

including discrimination not related to the services, programs or

activities of a public entity. Because we conclude that medical licensing

is a service, program, or activity of a public entity within the meaning

of Title II, we need not reach the merits of Dr. Hason’s argument. For

the sake of clarity, however, we note that in Zimmerman we ruled out

Dr. Hason’s proposed construction of the second clause of Title II. See

Zimmerman, 170 F.3d at 1176 (concluding that the second clause of

Title II, like the first, prohibits discrimination only in a public entity’s

outputs).

App. 11

or the provision of auxiliary aids and services,

meets the essential eligibility requirements for

the receipt of services or the participation in pro-

grams or activities provided by a public entity.

42 U.S.C. § 12131(2).

Dr. Hason argues that the District Court erred in

accepting the magistrate judge’s conclusion because the

question of whether Dr. Hason is a qualified individual

with a disability is a factual question that should not be

resolved on a 12(b)(6) motion to dismiss. In response,

Appellees contend that Dr. Hason is not a “qualified

individual with a disability” because Dr. Hason admits in

his pleadings that he suffers from a mental disability.

Although at a later stage in the proceedings Appellees

might demonstrate that Dr. Hason is not a qualified

individual with a disability, they have not yet done so.

Appellees are correct that Dr. Hason states in his com-

plaint that he suffers from a mental disability. Dr. Hason’s

complaint also alleges, however, that by the time of the

Medical Board’s decision he had received treatment for his

disability and was capable of practicing medicine. Accept-

ing these allegations as true and construing them in the

light most favorable to Dr. Hason, we conclude that Dr.

Hason adequately alleges that he is a qualified individual

with a disability. See Love v. United States, 915 F.2d 1242,

1245 (9th Cir. 1989) (stating that, in reviewing district

court’s dismissal for failure to state a claim pursuant to

Rule 12(b\(6), appellate court accepts plaintiff’s allega-

tions as true and construes complaint in light most favor-

able to plaintiff).

For the foregoing reasons, we conclude that Dr. Hason

states claims for which relief can be granted under Title II

App. 12

of the ADA. The District Court erred in dismissing his

complaint pursuant to Rule 12(b)(6).

III. Failure to Prosecute

Dr. Hason next argues that the District Court abused

its discretion in dismissing his claims, for failure to prose-

cute, against the individual defendants in their personal

capacities. In recommending that Appellant’s suit be

dismissed for failure to prosecute, the magistrate judge

relied on Federal Rule of Civil Procedure 4(m). Rule 4(m)

provides that, if process is not served within 120 days

after the filing of the complaint, and the plaintiff cannot

show good cause why service was not made within that

time, the action is subject to dismissal without prejudice

upon the court’s own initiative with notice to the plaintiff.

The magistrate judge noted that Dr. Hason failed to

effectuate service of process on the named individual

defendants within 120 days after the filing of his com-

plaint. Dr. Hason also failed to respond to an order to show

cause why service had not been made within the 120 day

period.

Dr. Hason does not dispute these facts. Rather, he

argues that he had determined that the individual defen-

dants were not liable and that he wanted them to be

dismissed as defendants. He assumed that he was further-

ing this goal and helping the court by not responding to

the order to show cause. However, when it became clear

that the state agencies were going to be dismissed as

defendants, Dr. Hason decided that he no longer wanted

the individual defendants to be dismissed. Dr. Hason’s

argument lacks merit, and we conclude that the District

Court did not abuse its discretion in dismissing, for failure

Se nee na

. eronEe

App. 13

to prosecute, Dr. Hason’s claims against the individual

defendants in their personal capacities.

IV. Conclusion

In conclusion, we hold that (1) Dr. Hason’s Title II

claims are not barred by the Eleventh Amendment; (2) Dr.

Hason’s section 1983 claims seeking prospective injunctive

relief against the individual defendants in their official

capacities are not barred by the Eleventh Amendment; (3)

Dr. Hason states valid claims under Title II of the ADA;

and (4) the District Court did not abuse its discretion in

dismissing for failure to prosecute Dr. Hason’s claims

against the individual defendants in their personal capaci-

ties.

We accordingly remand to the District Court for

consideration of the merits of Dr. Hason’s ADA claims. The

District Court did not rule on the merits of Dr. Hason’s

section 1983 claims, so they too must be remanded.

REVERSED and REMANDED.

App. 14

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL J. HASON, M_D., __ ) Case No.:

ate ) CV 99-04264-AHM

Plaintiff, (RNB)

™ ) ‘JUDGMENT

THE MEDICAL BOARD OF?

THE STATE OF CALIFORNIA, ) ‘Entered April 27, 2000)

et al.,

Defendants. )

Pursuant to the Order Adopting Findings, Conclu-

sions and Recommendations of United States Magistrate

Judge,

IT IS ADJUDGED that this action is dismissed

without prejudice as to the individual defendants in

their individual capacities, and with prejudice as to the

two named state agencies and the individual defendants

in their official capacities.

DATED: April 25, 2000

/s/ A. Howard Matz

A. HOWARD MATZ

UNITED STATES

DISTRICT JUDGE

App. 15

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL J. HASON, ) Case No.:

M_D., ) CV 99-04264-AHM

Plaintiff, ) (RNB)

; ORDER ADOPTING

FINDINGS,

THE MEDICAL BOARD ) CONCLUSIONS AND

OF THE STATE OF ) RECOMMENDATIONS

CALIFORNIA, et al., ) OF UNITED STATES

slice ) MAGISTRATE JUDGE

) (Filed Mar. 31, 2000)

Pursuant to 28 U.S.C. § 636, the Court has con-

ducted a review of all the records and files of this case,

including the Report and Recommendation of the United

States Magistrate Judge. Objections to the Report and

Recommendation have been filed herein. Having made a

de novo determination of those portions of the Report

and recommendation to which objection has been made,

the Court concurs with and adopts the findings, conclu-

sions and recommendations of the Magistrate Judge.

IT IS ORDERED that: (1) plaintiffs federal civil

rights claims against the two named state agencies and

the individual defendants in their official capacities are

dismissed without leave to amend; (2) plaintiffs ADA

claim is dismissed without leave to amend; and (3)

plaintiffs state law tort claims are dismissed without

leave to amend.

App. 16

March 31, 2000

/s/ A. Howard Matz

A. HOWARD MATZ

UNITED STATES

DISTRICT JUDGE

App. 17

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL J. HASON, ) Case No. CV 99-04264-

M.D., ) AHM (RNB)

Plaintiff, REPORT AND

ee | RECOMMENDATION OF

UNITED STATES

THE MEDICAL BOARD MAGISTRATE JUDGE

OF THE STATE OF Be

CALIFORNIA, et al., ‘

Defendants. )

This Report and Recommendation is submitted to

the Honorable A. Howard Matz, United States District

Judge, pursuant to 28 U.S.C. § 636 and General Order

194 of the United States District Court or [sic] the

Central District of California.

PROCEEDINGS

Plaintiff filed this action pro per on April 21, 1999,

purporting to allege federal claims for violations of his

federal constitutional rights and the Americans with

Disabilities Act (“ADA”), as well as state law tort claims.

Named as defendants are The Medical Board of the

State of California (the “Medical Board”), the Depart-

ment of Consumer Affairs of the State of California (the

“Consumer Affairs Department”) and its director, and

various other individuals who are alleged to be either

members of or otherwise affiliated with the Medical

Board (in both their official and individual capacities).

App. 18

Like two other actions filed by plaintiff in this Court,

this action arises out of the Medical Board’s denial of

plaintiffs application for a medical license.

On December 23, 1999, the matter was transferred

from the calendar of Magistrate Judge Nagle to the

calendar of Magistrate Judge Block.

Now pending before the Court and ready for deci-

sion is a Motion to Dismiss brought by the State of

California on behalf of the Medical Board and the

Consumer Affairs Department. For the reasons dis-

cussed hereafter, the Court recommends that plaintiffs

federal civil rights claims against the two named state

agencies and the individual defendants in their official

capacities be dismissed without leave to amend, that

plaintiffs ADA claim be dismissed without leave to

amend, and that plaintiffs state law tort claims be

dismissed without leave to amend.

STANDARD OF REVIEW

A complaint may be dismissed as a matter of law for

failure to state a claim for two reasons: (1) lack of a

cognizable legal theory; or (2) insufficient facts alleged

under a cognizable legai theory. Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Plain-

tiffs allegations of material fact must be taken as true

and construed in the light most favorable to plaintiff.

See Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

1989). Since plaintiff is appearing pro se, the Court must

construe the allegations of the complaint liberally and

must afford plaintiff the benefit of any doubt. See

Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,

623 (9th Cir. 1988).

App. 19

DISCUSSION

A. Plaintiff is unable to state a claim against the

State of California (or the two named state

agencies) or any of the individual defendants

in their official capacities for violation of his

federal civil rights.

In Will v. Michigan Dep’t of State Police, 491 U.S.

58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), the Su-

preme Court held that states, state agencies, and state

officials sued in their official capacities’ are not persons

subject to civil rights suits under 42 U.S.C. § 1983. See

491 U.S. at 64-66. Further, the Eleventh Amendment

bars federal jurisdiction over suits by individuals

against a State and its instrumentalities, unless either

the State consents to waive its sovereign immunity or

Congress abrogates it. Pennhurst State School & Hosp.

v. Halderman, 465 U.S. 89, 99-100, 104 S. Ct. 900, 79 L.

Ed. 2d 67 (1984). To overcome this Eleventh Amend-

ment bar, the State’s consent or Congress’ intent must

be “unequivocally expressed.” Pennhurst, 465 U.S. at 99.

While California has consented to be sued in its own

courts pursuant to the California Tort Claims act, such

consent does not constitute consent to suit in federal

court. See BV Engineering v. Univ. of Cal., Los Angeles,

858 F.2d 1394, 1396 (9th Cir. 1988), cert. denied, 489

* The Supreme Court has held that an “official-capacity suit is, in

ali respects other than name, to be treated as a suit against the entity.”

Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d

114 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct.

873, 83 L. Ed. 2d 878 (1985); Larez v. City of Los Angeles, 946 F.2d 630,

646 (9th Cir. 1991). Such a suit “is not a suit against the official

personally, for the real party in interest is the entity.” Graham, supra.

App. 20

U.S. 1090 (1989); see also Atascadero State Hosp. uv.

Scanlon, 473 U.S. 234, 241, 105 S. Ct. 3142, 87 L. Ed. 2d

171 (1985) (holding that Art. III, § 5 of the California

Constitution did not constitute a waiver of California’s

Eleventh Amendment immunity). Furthermore, Con-

gress has not abrogated State sovereign immunity

against suits under 42 U.S.C. § 1983.

The Eleventh Amendment not only bars plaintiff's

federal civil rights claims against the State of Califor-

nia/Medical Board/Consumer Affairs Department and

the named individuals in their official capacities to the

extent that plaintiff is seeking monetary damages from

them, but also plaintiffs federal civil rights claims

against those defendants to the extent that plaintiff is

seeking injunctive relief. Pennhurst, 465 U.S. at 100

(“This jurisdictional bar applies regardless of the nature

of the relief sought.”); see also Alabama v. Pugh, 438

U.S. 781, 782, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978)

(per curiam) (Eleventh Amendment bars claim for

injunctive relief against Alabama and its Board of

Corrections).

Moreover, plaintiffs failure to allege facts sufficient

to state a federal civil rights claim against the State of

California/Medical Board/Consumer Affairs Department

and the named individuals in their official capacities is

not a pleading deficiency capable of being remedied in

an amended pleading.

B. lai i to state a claim against

violation of th A.

The ADA provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded

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App. 21

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.” See 42

U.S.C. § 12132(2); Weinreich v. Los Angeles County

Metropolitan Transportation Authority, 114 F.3d 976,

978 (9th Cir.), cert. denied, 118 S. Ct. 423 (1997);

Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir.

1996). 42 U.S.C. § 12131(2) defines “qualified individual

with a disability” in pertinent part as “an individual

with a disability who, with or without reasonable modi-

fications to rules, policies or practices ... meets the

essential eligibility requirements for the receipt of

services or the participation in programs or activities

provided by a public entity.”

The gravamen of plaintiffs ADA claim is that the

State of California violated the ADA when it denied his

medical license application on account of his mental

disability. (Plaintiff acknowledges in his opposition that

he “has suffered recurring depressions that have at

times significantly impaired his ability to function in

major activities of life.”).

Plaintiff contends in his opposition that the Elev-

enth Amendment is not a bar to an action under the

ADA. However, even assuming arguendo that plaintiff is

correct,’ plaintiff still has failed to cite any authority for

the proposition that a medical license even qualifies as

“services, programs, or activities of a public entity’

within the meaning of the ADA. As the district court

* It appears that, by the end of the current term, the United States

Supreme Court may hold otherwise.

App. 22

observed in Alexander v. Margolis, 921 F. Supp. 482

(W.D. Mich. 1995), where the plaintiffs medical license

had been revoked on account of plaintiffs mental condi-

tion:

“Considering the test of section 12132(2), it

is questionable whether the Board’s duty to li-

cense physicians can be characterized as a ‘ser-

vice’ being denied to plaintiff or whether the

Board’s refusa! to reinstate his license denies

him participation in ‘programs or activities

provided’ by a state entity. The Board of Medi-

cine is, if anything, a service, program or activ-

ity provided for the public’s benefit and safety,

not for the benefit of any given individual who

does not meet the state’s requirements for

practicing medicine.” 921 F. Supp. at 488.

In any event, even if a medical license qualifies as

“services, programs, or activities of a public entity’

within the meaning of the ADA, the Court concurs with

the conclusion of the Alexander court that a medical

license applicant who suffers from a mental disability is

not a “qualified individual with a disability” under the

ADA:

“The very nature of the police powers exer-

cised by state boards of medicine require the

state to discriminate on: the basis of, among

other considerations, a mental condition harm-

ful to the public’s safety. By the very nature of

the practice of medicine, given the physician’s

necessary independence to ‘practice’ his art, no

reasonable modification can be made to a policy

of restricting medical practice to those without

evidence of mental disabilities.... The Board

cannot exercise its duty without the discretion

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App. 23

to consider the impact of a mental disability

upon one’s ability to practice with reasonable

skill and safety. The danger of irreparable

harm to the public is too great to deny the

Board such discretion. To require otherwise is

unreasonable.” 921 F. Supp. at 488.

Moreover, it does not appear to the Court that

plaintiffs failure to allege facts sufficient to state an

ADA claim is a pleading deficiency capable of being

remedied in an amended pleading.

C. Plaintiff's state law tort claims are barred by

plaintiffs failure to comply with the claims

presentation requirements.

To the extent that plaintiff purports to be alleging

state law tort claims, his claims are subject to the

provisions of the California Tort Claims Act (the “Act”).

See Cal. Govt. Code §§ 900.6 (defining “State” to include

“any office, officer, department, division, bureau, board,

commission or agency of the State”), 905.2 (requiring

tort claims for money or damages against the State to be

presented in accordance with the provisions of the Act).

Under Cal. Govt. Code § 911.2, it was incumbent on

plaintiff to present his state tort claims against the

state agencies and the individual defendants to the

State Board of Control (see Cal. Govt. Code § 900.2) not

later than six months after the accrual of his causes of

action. In neither the Complaint nor his opposition to

the Motion to Dismiss does plaintiff allege timely pres-

entation of his state tort claims in accordance with Cal.

Govt. Code § 911.2.

App. 24

Since it appears from the face of the Complaint that

plaintiffs state tort claims accrued no later than April

24, 1998, when plaintiff alleges that the Order affirming

the denial of his license application took effect, not only

is it now too late for plaintiff to present his claim, but it

also is too late for him to seek leave to present a late

claim. See Cal. Govt. Code § 911.4 (written application

to present a late claim must be presented within a

reasonable period of time not to exceed one year after

the accrual of the cause of action). Therefore, under

California law, plaintiffs state tort claims against

defendants are now barred. See, e.g., Boxall v. Sequoia

Union High School Dist., 464 F. Supp. 1104, 1113 (N.D.

Cal. 1979); Fisher v. Pickens, 225 Cal. App. 3d 708, 718,

275 Cal. Rptr. 487 (1990). Thus, plaintiffs failure to

allege facts sufficient [to] state any state tort claims also

is a pleading deficiency incapable of being remedies in

an amended complaint.

RECOMMENDATION

For ali of the foregoing reasons, IT IS RECOM-

MENDED that the District Court issue an Order: (1)

approving and adopting this Report and Recommenda-

tion; (2) dismissing plaintiffs federal civil rights claims

against the two named state agencies and the individual

defendants in their official capacities without leave to

amend; (3) dismissing plaintiffs ADA claim without

leave to amend; and (4) dismissing plaintiffs state law

tort claims without leave to amend. ’

App. 25

DATED: February 1, 2000

/s/ Robert N. Block

ROBERT N. BLOCK

UNITED STATES

MAGISTRATE JUDGE

App. 26

APPENDIX E

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. HASON, M.D.,

Plaintiff-Appellant,

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 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.

SCHUMACHER, 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

App. 27

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.

No. 00-55980.

Filed June 26, 2002

Before: Alfred T. Goodwin, J. Clifford Wallace and

Sidney R. Thomas, Circuit Judges.

Dissent by Judge O’Scannlain

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.

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

App. 28

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, how-

ever, it refuses to deal in a meaningful way with interven-

ing Supreme Court precedent, specifically Board of

Trustees of the University of Alabama v. Garrett, 531 U.S.

356 (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 jurispru-

dence. See, eg., 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

aleiad bere,

Fike 5 eee teks) PAPA tae MRA OE Re Ve oyady eta

App. 29

Fourteenth Amendment.’ Garrett drew on City of Boerne v.

Flores, 521 U.S. 507 (1997), which made clear that it was

up to the courts to “define the substance of [the] constitu-

tional guarantee[ ]” that Congress purported to enforce,

Garrett, 531 U.S. at 365 (citing Boerne, 521 U.S. at 519-

24), 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). 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 (emphasis added). A

showing of discrimination against the disabled in general,

or discrimination by local governments rather than the

States themselves, will not do. Jd. at 368 (“Just as § 1 of

the Fourteenth Amendment applies only to actions com-

mitted ‘under color of state law,’ Congress’ § 5 authority is

appropriately exercised only in response to state trans-

gressions.”); id. at 368-69 (explaining that “[i]Jt would

make no sense to consider constitutional violations on” the

* To be more precise, in Garrett the Court explicitly addressed only

the question of whether Title I of the ADA, 42 U.S.C. § 12111 et 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. § 12131 et seg., which prohibits

discrimination against the disabled by public entities, did so. Garrett,

531 U.S. at 360 n.1. As I will explain in due course, however, it is the

approach set forth in Garrett, rather than any specific teachings about

Title I or Title II, which is crucial for purposes of my analysis.

App. 30

part of local governments “when only the States are the

beneficiaries of the Eleventh Amendment”).

Moreover, Garrett makes clear that generalizations

about disability discrimination and how the ADA is de-

signed 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.’ We first

* The claims at issue in Clark were brought under Title II, but we

treated the ADA as a whole. This casts further doubt on the continued

validity of the opinion because in Garrett, the Court expressly refused

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App. 31

recognized, correctly, that in Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 432 (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.” Jd. We therefore concluded

that the ADA was “validly enacted under the Fourteenth

Amendment.” Jd.

This minimalist analysis is a far cry from the detailed

approach mandated by Garrett; its infirmities are mani-

fest. It is devoid of any discussion whatsoever of legislative

findings of discrimination by States — and specifically, by

States rather than by local 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,

to conflate the separate, detailed inquiries required for each of Title I

and Title II. See Garrett, 531 U.S. at 360 n.1.

App. 32

274 F.3d at 981, or “dissect[] the statutory regime in

question and carefully compare[ ] it to the baseline defini-

tion of constitutional action under the Fourteenth

Amendment,” id., as Garrett requires.”

In Dare, we attempted to square Clark’s result with

the Supreme Court’s intervening decision in Florida

Prepaid Postsecondary Education Expense Board v. College

Savings Bank, 527 U.S. 627 (1999). But Dare’s approach is

no more sound than Clark’s. Like Clark’s, Dare’s congru-

ence analysis deals with legislative findings only of dis-

crimination generally — not of discrimination by 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 long history of arbi-

trary and irrational discrimination against people with

disabilities.”) (citation omitted). Dare’s proportionality

* For a recent example of how a court might perform this detailed

analysis in light of Garrett, parsing the legislative history of Title II and

measuring its provisions against identified instances of discrimination

against the disabled by States, see Panzardi-Santiago v. University of

Puerto Rico, __ F. Supp. 2d __, No. Civ. 95-2316, 2002 WL 638533

(D.P.R. Mar. 19, 2002) (Delgado-Colon, Magistrate J.). This careful

analysis led Magistrate Judge Delgado-Colon to conclude that “[tjhe

legislative history of the statute, particularly as to Title II, suffers from

the same deficiencies identified by the Supreme Court in Kimel [v.

Florida Board of Regents, 528 U.S. 62 (2000)] and Garrett.” 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”).

App. 33

: 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,

i we reiterate the importance of deference to Con-

: gress in this analysis. The Supreme Court has

: specifically found protections for people with dis-

abilities to be an area in which Congressional

judgment should be given great deference. See

[Cleburne, 473 U.S. at 442-43]. 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. See 42 U.S.C. §12101(a). The ADA’s par-

ticular provisions for each sector then indicate

specifically the discrimination which is forbidden

and the conduct needed to remedy the discrimi-

nation. See 42 U.S.C. § 12101 et seg. Although Ti-

tle 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 find-

ings.

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 that Garrett requires.

App. 34

Il.

In light of Garrett, then, it is clear that our pre-

Garrett Title II precedents are outdated. Yet Hason refuses

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) Clark and Dare held Title II

validly abrogated sovereign immunity; (2) Garrett did not

expressly deal with Title II; it dealt only with Title I, and

reserved judgment on Title II; ergo (3) Clark and Dare are

good law.

This logic breaks down between steps (2) and (3). To

be sure, in Garrett the 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 360 n.1. But it does not follow that because Garrett

did not invalidate Title II, our prior case law upholding it

remains relevant. For it is not just the holding of Garrett

that matters; we must also be mindful of the approach the

Court set forth there. As the foregoing analysis makes

clear, the blunt approach taken in Clark and Dare has now

been supplanted with a new, more nuanced inquiry. If we

are to follow Garrett faithfully, we must re-analyze our

prior precedents accordingly.

Two of our sister circuits have already recognized as

much, and have re-analyzed their pre-Garrett precedents

holding that Title II validly abrogated States’ sovereign

immunity. Each has concluded that Title II did not abro-

gate sovereign immunity — old circuit precedents to the

contrary notwithstanding. See Reickenbacker, 274 F.3d at

981 (concluding that Garrett “effectively overruled” prior

circuit precedent holding that Title II validly abrogated

App. 35

State sovereign immunity); Thompson v. Colorado, 278

F.3d 1020, 1034 (10th Cir. 2001), cert. denied, __ S. Ct.

___, 2002 WL 83622 (U.S. May 20, 2002).

Indeed, Hason’s holding, that Title II validly abro-

gated States’ sovereign immunity, period, splits us from

seven of our peers that have considered the issue in the

post-Garrett world. 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-Garrett deci-

sion 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. 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

(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).

App. 36

Ill

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.” 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 of Garrett, Title II did not abrogate the Eleventh

Amendment immunity of the several States.

We should have taken Hason en banc to reconsider,

and to overrule, Clark and Dare. I respectfully dissent.

App. 37

APPENDIX F

Michael J. Hason, M.D.

Plaintiff in pro per

1710 NW 87 Ave.

Plantation, FL 3322 [sic]

(954) 424-4082

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Michael J. Hason, M.D.,

Plaintiff, in pro per,

The Medical Board of the State of COMPLAINT

California; Dept. of Consumer and Jury Demand

Affairs of the State of California;

Arlene Adams, the Director of the

Dept. 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 Execu-

tive Director of the Medical Board

of the State of California and as

Director of the Dept. of Consumer

Affairs of the State of California;

Bruce Hasenkamp, Individually

and as President of the Division of

App. 38

Licensing of the Medical Board of

the State of California; Dr. Ira

Lubell, Individually and as Pres. of

the Division of Medical Quality of

the Medical Board of the State of

California; Dr. Carole H. Hurvitz,

Dr. Anabel A. Imbert, Dr. Raquel

D. Arias, Dr. Klea D. Bertakis, Dr.

Jack Bruner, Daniel Livingston,

Karen McElliott, Dr. Alan E

Schumacher and Kip S. Skidmore,

Individually and as Members of

the Medical Board of the State of

California’s Division of Medical

Quality; Dr. Thomas A. Joas,

Karen McElliott and Bernard

Alpert, Individually and as Offi-

cers of the Medical Board of the

State of California and its Div. of

Licensing Michael I. Sidley and Dr.

Raja Toke, Individually and as

Executives of the Medical Board of

the State of California’s Division of

Licensing; the State of California;

and Senior Investigator, Medical

Board of California,

Defendants

Background

1. The Plaintiff, Dr. Michael J. Hason, applied for a

license to practice medicine in the State of California

in the Spring of 1995. In August of 1996, the Medical

Board of the State of California (MBSC) denied Dr.

Hason’s application, citing mental illness and an act that

would require the suspension or revocation of a licensed

App. 39

physician’s license to practice medicine in the State of

California. After appeal, the service of a Statement of

Issues and a hearing the MBSC affirmed its decision in

1998. It’s Order was stayed for approximately one month

for consideration of Plaintiff's Petition for Reconsidera-

tion, which was denied. The Order took effect on about

April 24, 1998.

2. This Court has jurisdiction over the within case due to

diversity of citizenship and because the suit is based upon

federal statutes, including but not limited to the Civil

Rights Statutes 42 U.S.C. 1980-88, the Americans with

Disabilities Act, the Rehabilitation Act, if applicable, the

Constitution of the United States of America, including

but not limited to the due process clause and the equal

protection clauses of the 14th Amendment, the privileges

and immunities clauses and the 13th Amendment, if

applicable, and the statutes and Constitution of the State

of California, as applicable.

As and for a First Cause of Action

3. The Defendants proceeded under statutes which were

violative of the Constitution of the United States and that

of the State of California, including, but not limited to

their use and application of a vague and overbroad State

statute that targeted applicants and physician licensees

who were described in the licensing statute as mentally ill,

where this group also included physicians who had a

history of mental illness and who were not actively men-

tally ill, or who were actively mentally ill, but able to

practice medicine safely anyway.

4. All or many of these individuals and/or Dr. Hason

were targeted for increased scrutiny and investigation

App. 40

which promoted the exclusion of these physicians from the

practice of medicine in the State of California, regardless

of their ability to practice medicine safely or the fact that

they were otherwise qualified.

5. The statutes on their face and as applied are unconsti-

tutional, should be declared void and all decisions had

under them should be declared void and of no effect,

including and particularly, decisions regarding the license

application of Dr. Hason, such as decisions made by

Defendants August 1996 and April 1998 denying Dr.

Hason’s application for a medical license.

6. The statutes referred to include, but are not limited to

the statute that states that a license to practice medicine

may be denied for the reason of mental illness.

As and for a Second Cause of Action

7. The Plaintiff repeats the allegations numbered 1-3, as

if more fully set forth here. The Defendants violated the

Plaintiff's rights under the Americans with Disabilities

Act by illegally and invasively requesting that he provide

to them all medical records concerning his history of

treatment for depression which extended back to the year

1970.

8. The Defendants further violated Plaintiff's rights

under the ADA by not properly applying the “direct

threat” standard enunciated by the EEOC and Justice

Dept. as the proper standard to find that a license appli-

cant is a danger to his prospective patients or others. The

Defendants did this throughout the application proceed-

ings, including, but not limited to, their initial decision in

Aug. 1996, their behavior after getting input from Dr.

App. 41

David Glaser, their behavior after getting input from

Florida from Dr. Robert Perovich and Mr. David Molko,

M.S.W., and did so by adopting the administrative Judge’s

decision which did not properly apply this standard. The

Defendants did not properly apply the standard in consid-

ering the Plaintiff's Petition for Reconsideration as that

Petition established Plaintiff's readiness to practice

medicine safely and identified many irregularities in the

proceedings had against Dr. Hason by the MBSC and its

agents.

9. The Defendants violated the ADA by not accommodat-

ing Plaintiff by offering him a probationary medical

license, conditioned on his agreement and actual coopera-

tion with some supervising physician and/or psychiatrist

and/or psychotherapist for psychotherapy, guidance and/or

other supervision, as needed, reasonable and legal.

As for a Third Cause of Action

10. The Plaintiff repeats allegations numbered 1-9, as if

more fully set forth here. Apparently, after receipt of

Plaintiff's medical record from 1992 hospitalization in

Philadelphia, an executive of the Medical Board recklessly

determined and stated in writing that the Plaintiff was a

“narcissistic jerk,” and stated that the Medical Board of

the State of California (MBSC) should seek a psychiatric

evaluation of Plaintiff in order to block his application’s

viability, thus biasing all further proceedings and destroy-

ing their objectivity. On information and belief, this

document was also published to Dr. Michael Meek, preju-

dicing that consultant’s initial mindset and biasing his

ultimate opinions later expressed in his report to the

App. 42

MBSC about the summer of 1996 and in his testimony

during Sept. and Oct. 1997.

As for a Fourth Cause of Action

11. The Plaintiff repeats allegations numbered 1-5, as if

more fully set forth here. Plaintiff was directed to pay

MBSC $2000.00 as a charge for the evaluation by their

psychiatric consultant, Dr. Michael Meek (Meek), which

fee was calculated to illegally exclude the Plaintiff from

the practice of medicine in California.

As for a Fifth Cause of Action

12. The MBSC and Defendants intentionally and/or

recklessly hired an unqualified and biased psychiatrist to

evaluate the Plaintiff.

13. Further, the MBSC specifically encouraged the bias

of the psychiatrist Meek, conspiring with him, by showing

him the written statement of the MBSC official who had

stated that the Plaintiff was a “narcissistic jerk.” Further,

they controlled and biased the psychiatrist’s perceptions

and conclusions by paying him only in cases where he filed

a negative report. Thus, they made it perfectly clear to

Meek that they sought negative reports on physicians

referred to him for evaluation and/or on Dr. Hason and not

fair and objective evaluations. These actions and the

conspiracy among the Defendants impaired Plaintiff's

rights to a fair psychiatric evaluation and prejudiced

beyond repair the objective consideration of Plaintiff's

application for a medical license.

App. 43

As for a Sixth Cause of Action

14. The Plaintiff repeats allegations 1-13, as if more fully

set forth here. Despite the unqualified Psychiatrist’s

finding that the Plaintiff's mental status was essentially

normal, and despite the Plaintiff's score of normal on the

highly respected MMPI psychological test, the MBSC and

other Defendants accepted the Psychiatrist’s trumped up

conclusions and false recitation of facts regarding Plaintiff.

These facts included, but were not limited to 1) the psy-

chiatrist Meek’s claim that the Plaintiff abandoned his

patients when he was a resident at the State University of

New York at Stony Brook during 1993-94 and 2) was

absent without leave for an extended period of time from

his residency post at Stony Brook in about May of 1994

and just inexplicably turned up at a hotel in New Orleans,

were patently false, calculated to obstruct justice and

could have easily been checked out by Meek or the MBSC,

or the Defendants. They intentionally and recklessly did

not do so, even after Plaintiff's refutation, pleadings,

explanations and denials under oath in Sept. 1997. The

Defendants recklessly continued to use these bogus facts

in an attempt to paint the Plaintiff as a dangerous physi-

cian and confuse and mislead the Administrative Judge

assigned to Plaintiff’s case.

15. The Defendants also accepted their psychiatrist

Meek’s bogus diagnosis for Plaintiff of narcissistic person-

ality disorder on the basis of totally inadequate evidence

and were reckless in their use of this bogus diagnosis to

trump up a case against Plaintiff.

16. Similarly, they adopted and promoted a bogus diag-

nosis of multiple drug dependency authored by Dr. Meek,

App. 44

despite clear evidence of the incorrectness of this diagno-

sis.

17. The Defendants also acted improperly by adopting

the results of the inappropriately administered personality

test named for its creator Dr. Millon and countenanced the

exaggerated used [sic] of this unreliable data, by adopting

Meek’s stretch of narcissistic trait score on the test into a

diagnosis of a full blown personality disorder.

18. The Defendants also countenanced Meek’s numerous

exaggerations, fabrications, wild illogical conclusions and

accusations, including, but not limited to, those presented

as evidence of “bias” in the Closing Statement of Plaintiff's

attorney, Ms. Kollar, incorporated here as if more fully set

forth, and those presented by Plaintiff in his Petition for

Reconsideration, incorporated here, as if more fully set

forth.

As for a Sixth [sic] Cause of Action

19. The Plaintiff repeats allegations numbered 1-18, as if

more fully set forth here. After receiving Plaintiff's notice

of appeal MBSC and Defendants drew up a Statement of

Issues that included a bogus charge relating to the claim

that the Plaintiff was mentally ill.

20. They did not serve it upon the Plaintiff until months

after the proper time for service.

21. Further, they included a second charge based on

Plaintiff's failure to include his attendance at a residency

at the Graduate Hospital in Aug.-Oct. 1992. They did this,

after Plaintiff fully cooperated with them, giving them

information about his attendance at the Hospital, which

included positive statements by one Elliot Nierman,

App. 45

Program Director, which showed that Plaintiff had not

failed to present information that was material to the

question of whether he was entitled to a license to practice

medicine in California.

22. Further, they rejected positive evaluations and

certifications that Dr. Hason was safe, from two Board

Certified psychiatrists, Dr. David Glaser and later Dr.

Robert Perovich, both of whom, had enjoyed an extended

opportunity to evaluate Dr. Hason for his ability to prac-

tice medicine safely.

As for a Seventh Cause of Action

23. The Defendants also delayed the scheduling of the

administrative hearing on appeal well beyond the 90 day

limit of the relevant statute, did not apply to the Adminis-

trative Hearings Division or Judge for statutorily permit-

ted extensions of time for good reasons shown and

scheduled the hearing beyond the date permitted even by

the maximum number of permitted extensions.

As for a [sic] Eighth Cause of Action

24. At Plaintiff's hearing on the appeal in the Fall of

1997, Defendants made many false and misleading asser-

tions against the Plaintiff, in bad faith, regarding facts

that were false and that could easily have been verified

and found to be false and which also included many

trumped up exaggerations obstructing justice. Thus, they

provided the Administrative Law Judge with a confused

and spurious database and a difficult decision concerning

the safety of granting a license to Dr. Hason.

App. 46

25. To repeat, they failed to properly investigate the facts

that they relied upon and took no proper action to re-

evaluate their data, once they were pointedly alerted to

the falsity of their data by Dr. Hason’s sworn testimony at

the hearing, by the questions of Ms. Kollar, Dr. Hason’s

attorney and by other more obvious inconsistencies and

patent absurdities, promoted for them by Meek.

26. They intentionally and recklessly ignored the facts

that Dr. Hason had worked as a physician caring for

approximately 500 patients, without suffering any sub-

stantiated charge of negligence, or suffering any accusa-

tion of depression, narcissism or hypomania by his

supervising physicians at St. Vincent’s Hospital, Bridge-

port, CT, 1991-92, SUNY at Stony Brook, 1993-94 or at the

VA Medical Center, W. Los Angeles, 1994-95. They further

ignored the fact that on the occasions when Dr. Hason did

work as a physician, while actually depressed, no supervi-

sor accused him of any act of negligence.

27. By not weighing these facts, the Defendants did not

obey the dictates of the ADA which required that they find

and prove that Dr. Hason posed a “direct threat” to the

health and safety of his prospective patients or others. If

the Defendants still were justifiably concerned, they failed

to accommodate Plaintiff as required by the ADA

As for and [sic] Ninth Cause of Action

28. The Plaintiff repeats allegations numbered 1-27, as if

set forth here more fully. The Defendants, further, abused

their discretion by failing to properly evaluate, investigate

and articulate a written or reasonable decision, with

regard to the information advanced by Dr. Hason in his

Petition for Reconsideration, including but not limited to

App. 47

the information that Dr. Hason had not abandoned any

patients while at Stony brook, was well and ready to

practice medicine in California safely and that he was

agreeable to and felt that an accommodation, such as a

probationary license, was appropriate.

29. MBSC and Defendants refused to seriously consider

psychiatric updates from Dr. Perovich, a board certified

psychiatrist and David Molko, M.S.W., both of whom had

treated and observed Dr. Hason for more than six months

by the time that the Petition was being reviewed by MBSC

and Defendants. Further, the statements by these health

professionals made it clear that Dr. Hason was following

the health maintenance suggestions of the Defendants and

was stable and highly likely to remain in treatment, as

long as necessary (and continue to benefit from the ther-

apy) all in accord with what the Defendants had indicated

was good and necessary for the safe practice of medicine

by Dr. Hason.

30. Those two professionals, Dr. Perovich and Mr. Mc'ko,

were continuing to treat Dr. Hason again in line with the

Defendants expressed suggestions and original reserva-

tions to licensing. The mental health experts, both filed

very positive reports, certifying again Dr. Hason’s safety to

practice medicine based on an even longer period of

examination. They also made statements evidencing their

serious reservations about the conclusions of the MBSC’s

psychiatrist Dr. Meek, which apparently the Defendants

did not consider appropriately and which did not prompt

any further serious consideration of the situation fostered

by the acts of Defendants. Once again, the two health

professionals recertified to the Defendants that Dr. Hason

was stable and safe to practice medicine. All of this was

ignored intentionally, because of the MBSC’s bias and

App. 48

invidious discriminatory inclinations regarding Dr. Hason,

whom they accused of mental illness and being unsafe to

practice medicine in the State of California to cover their

invidious subjective discriminatory biases against him for

having had a history of depression and other factors like

his leaving out the Graduate Hospital from his application

and their receipt of certain phony accusations by Dr. Davis

of SUNY at Stony Brook and because of the false and

deceptive acts and behavior of Meek, i.e., they used this

accusation of mental illness as a trumped up mechanism

to block Dr. Hason’s application when, in reality, they

chose to deny the license on illegal and hidden bases,

denying Dr. Hason the equal protection of the laws.

As and for a Ninth Cause of Action

31. The Plaintiff repeats the allegations numbered 1-30,

as if more fully set forth here. The Defendants violated

Plaintiff's right to a fair and speedy hearing under the

relevant statutory 90 day period within which they must

hold a [sic] such a hearing to decide Plaintiff’s appeal.

This period began to run after Plaintiff's appeal from

Defendants’ initial decision of August, 1996 denying

Plaintiff's application for a medical license.

As and for a Tenth Cause of Action

32. The Plaintiff repeats the allegations numbered 1-33,

as if more fully set forth here. The Defendants informed

Dr. Hason that his license had been denied for two rea-

sons, mental illness and his doing of an act that would

cause the MBSC to suspend or revoke the license of a

physician already licensed in California. They failed to

explain to the Plaintiff how he was mentally ill. They

App. 49

failed to tell Dr. Hason what act he had done that they

were relying upon. They thus severely intruded on Dr.

Hason’s due process rights and ability to decide upon

whether to appeal and how he could defend himself.

As for an Eleventh Cause of Action

33. The Plaintiff repeats allegations numbered 1-32, as if

more fully set forth here. The bare bones denial of license

- served in August, 1996 was also calculated to intentionally

inflict emotional distress, was outrageous and did cause

Plaintiff to suffer severe emotional and ultimately conse-

quential emotion or stress induced and other physical

injury.

As for a Twelfth Cause of Action

34. The Plaintiff repeats allegations numbered 1-33, as if

more fully set forth here. The Defendants proceeded on a

Statement of Issues that included charges relating to

mental illness that were bogus and unworthy of serious

legal consideration. The Defendants failed to state an

actionable cause for license denial in the acceptable

domain of mental illness reasons for denial. They trumped

up some tale about how Plaintiff had a narcissistic per-

sonality disorder, had been depressed in the past and

would not seek treatment if he got depressed, because the

narcissistic personality disorder would prevent him from

understanding that he needed treatment to hide illegal or

no proper bases to deny Dr. Hason a license.

35. They also relied on a second charge based on the

failure of the Plaintiff to include some data about the

Graduate Hospital, that was essentially collateral to the

necessary determination of Plaintiff’s fitness to practice

App. 50

medicine safely in California, after Plaintiff had cooper-

ated fully with them in the production of information

relating to his training at the Graduate Hospital.

As for a Thirteenth Cause of Action

36. The Plaintiff repeats the allegations numbered 1-35,

as if more fully set forth here. The Defendants acted in

violations of 42 U.S. Code 1981-88, et seq., by acting under

the color of state law and doing the many acts referred to

in this Complaint which were intended to deprive the

Plaintiff of his rights protected under the Constitution and

the Statutes of the United States of America as well as the

Constitution and Statutes of the State of California. The

actions of the Defendants violated the Plaintiff's liberty

rights by preventing him from choosing and working in

the profession of his choice, obtaining the proper license

and living and working in the State of his choice after

recent entry into the State of California.

37. They also violated his due process rights by making

an adversarial game and using lies and distortions instead

of a fair and proper evaluation of Plaintiff's skills, abili-

ties, mental condition and shortcomings.

38. They violated his equal protection rights by treating

Plaintiff unlike others similarly situated with a history of

mental illness and no recent active illness and/or those

with mental illness who were still safe to practice medi-

cine, by doing all of the acts mentioned herein calculated

to make anyone with a history of mental illness and/or Dr.

Hason particularly, or with mental illness but safe to

practice medicine, despite the illness, look as if they were

unsafe and that no reasonable accommodation or agree-

ment or adjustment could make them safe.

App. 51

As for a Thirteenth Cause of Action

39. The Plaintiff repeats each allegations [sic] numbered

1-38, as if more fully set forth here. The Defendants

violated Plaintiff’s rights under the Privileges and Immu-

nities Clause of of [sic] the United States Constitution that

protects the right of citizens to travel between States and

to live in any State with the same rights as its other

citizens including, but not limited to, living and working in

one’s chosen profession, obtaining necessary licenses from

the government, having a family and supporting it

through paid work as a physician, licensed or otherwise

and thus the Defendants also violated Dr. Hason’s rights

and/or violated similar rights of others similarly situated

with Dr. Hason with regards to his recent entry into the

State and/or that factor in combination of Dr. Hason’s

memberships in the class of those with a history of mental

illness. They violated the Privileges and Immunities

Clause of the United States Constitution by treating

Plaintiff differently than other residents of the State of

California, by preventing him from working in the State of

California as a physician, the profession which he had

chosen and in which he was qualified legally, and by

harming him in further ways as elaborated in this Com-

plaint and by constructively or literally driving him out of

the State of California. They did this for the reasons

already mentioned concerning their biases about mental

illness and their hidden agenda other than a valid belief in

Dr. Hason’s actual mental illness or proper evidence

thereof and painted Dr. Hason as mentally ill and unsafe

because Plaintiff was an “outsider,” an individual recently

arrived from New York State and a person whom they

wished to drive from their State and following the lead of

Meek, from medicine entirely.

App. 52

As and for a Fourteenth Cause of Action

40. The Plaintiff repeats each allegation numbered 1-39,

as if more fully set forth here. The Defendants violated

Plaintiff's rights by violating his rights under the 13th

Amendment of the constitution of the United States of

America by attempting to create a class of slaves including

the mentally ill who were able to function safely in profes-

sional positions and those with a history of mental illness.

The Plaintiff was a member of this class. This class of

slaves, including Dr. Hason, was deemed unable to work

as a freeman [sic] who could chose their profession and

seek business among the populace. Dr. Hason was treated

as someone who would not be allowed to provide for

himself, not be allowed to have a family which he could

support and would be told how he was to care for his own

health and was told not to contribute to decisions that

others would make about how he should care for his

health, which were a further violation of Plaintiff’s liberty.

As and for a Fifteenth Cause of Action

41. The Plaintiff repeats each allegation numbered 1

through 40, as if more fully set forth here. The Defendants

violated Plaintiff's rights under the State of California’s

Constitution and statutes, including but not limited to

those clauses protecting the Plaintiff’s right to pursue and

obtain happiness, work, reputation, possessions with free

enjoyment thereof, and to do so under conditions of liberty,

due process and the equal protection of the laws. They also

violated California’s statutory declaration of the right to

equal protection in employment for all individuals “other-

wise qualified.”

App. 53

As and for an [sic] Sixteenth Cause of Action

42. The Plaintiff repeats each allegation numbered 1

through 41, as if more fully set forth here. The Defendants

violated the Plaintiff's rights by invading his privacy as

prohibited by the due process clause of the Constitution of

the United States, 14th Amendment, substantively, by

acts including, but not limited to, requesting all of Plain-

tiff’s medical records relating to psychotherapeutic treat-

ment and treatment for depression, by directing him to

appear for an examination by a psychiatrist, by choosing a

biased and unqualified psychiatrist, by encouraging that

psychiatrist to falsify the facts and his conclusions about

Dr. Hason, thus further forcing Dr. Hason to produce

documents and testify on his own behalf concerning °

private matters and to testify under cross-examination

about private matters and to generate arguments, state-

ments and documents revealing private matters, all

necessary to try and overturn, oppose and influence the

decisions of the Defendants. The Defendants acted in this

manner, despite constant warnings to Defendants of the

illegality of their acts.

As for a Seventeenth Cause of Action

43. The Plaintiff repeats allegations numbered 1-42, as if

more fully set forth here. The Defendants conspired among

themselves, while considering and doing the acts com-

plained of in this Complaint, thus further violating the

Plaintiff's rights under the federal and State laws already

mentioned, including, but not limited to, 42 U.S.C. 1985

and the ADA.

App. 54

Damages

44. With respect to each cause of action, the Defendants

have severely injured Dr. Hason’s reputation, irreparably

and permanently, and damaged Dr. Hason emotionally,

physically, and financially. Further, the consequences of

the Defendants’ acts mentioned herein have been to

seriously impair Plaintiff's ability to proceed in an unim-

paired fashion with his life and medical career. The

Defendants, further, acted intentionally, recklessly and/or

in violation of established law and therefore are liable to

the Plaintiff for punitive damages in addition to compen-

satory damages, including all consequential and/or fore-

seeable damages.

45. The facts described in the entire Complaint are all

alleged by the Plaintiff to be actionable under each and

every theory stated in the Complaint.

WHEREFORE, the Plaintiff, Michael J. Hason,

Requests that this Court decide and adjudge before or

after a jury trial that the Defendants are liable for dam-

ages to the Plaintiff in the amount of $20,000,000 on each

cause of action and an additional $20,000,000 for punitive

damages on each cause of action, plus attorneys fees,

expenses and costs, and requests that this Court direct the

MBSC to issue to Dr. Hason a license to practice medicine

in California, and find that the statute permitting the

Medical Board of the State of California to find individu-

als, or Dr. Hason, unfit to practice medicine due to mental

illness to be unconstitutional, void for reasons of its

vagueness, overbreadth, violative of the Americans with

Disabilities Act, violation of other federal civil rights

statutes and the 14th Amendment of the Constitution of

the United States, or to hold similarly as applied in the

App. 55

case of Dr. Hason’s application for a medical license, and

grant other and further relief to the Plaintiff that is fair

and just in the premises.

Dated: April 16, 1999 /s/ Michael J. Hason

Michael J. Hason, M.D.

Plaintiff, in pro per

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.