United States, Intervenor, v. DILLENBERG (2003)

OPINION

The State of Arizona validly waived its sovereign immunity under the Eleventh Amendment to claims brought pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., when it accepted federal Rehabilitation Act funds.   See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1185-86 (9th Cir.2003);  Lovell v. Chandler, 303 F.3d 1039, 1050-51 (9th Cir.2002);  Douglas v. Cal. Dept. of Youth Auth., 271 F.3d 812, 819-21 (9th Cir.2001), rehearing en banc denied at 285 F.3d 1226 (9th Cir.2002).   The district court's decision to the contrary, see Pugliese v. Ariz. Dept. of Health and Human Servs., 147 F.Supp.2d 985, 989-91 (D.Ariz.2001), which was rendered prior to the decisions cited above, is therefore REVERSED.   We REMAND for further proceedings consistent with this opinion.

I continue to adhere to the view I took in our dissent from our court's orders denying rehearing en banc in Douglas v. California Department of Youth Authority, 285 F.3d 1226 (2002), and Hason v. Medical Board of California, 294 F.3d 1166 (2002).   In my opinion, a state cannot knowingly and voluntarily waive a right that Congress has said it does not have.   When the state acted under the constraint of the federal statute, the Supreme Court decision¹ holding that Congress acted unconstitutionally had not come down.   In Hason, the Supreme Court granted certiorari to review our court's position and dismissed certiorari only because the State of California decided that it did not wish to contest liability.²  The Court may again decide to consider the matter.   As a panel, though, we have no such authority, so I concur in the per curiam opinion.

FOOTNOTES

1.   Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).

2.   Medical Bd. of California v. Hason, 537 U.S. 1028, 123 S.Ct. 561, 154 L.Ed.2d 441 (2002) (granting certiorari, in part), cert. dismissed, 538 U.S. 958, 123 S.Ct. 1779, 155 L.Ed.2d 508 (2003).

PER CURIAM Opinion; Concurrence by Judge KLEINFELD.