3 n %be 
Supreme Court of t!je QHniteb &tate$ 
MEDICAL BOARD OF CALIFORNIA, 
Petitioneq 
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 CERTIO-I 
r + r ' 
BILL LOCKYER 
Attorney General , 
MANUEL M. MEDEIROS 
State Solicitor General 
JAMES M. SCHIAVENZA 
Senior Assistant Attorney Gen2;al 
CARLOS RAMIREZ 
Senior Assistant Attorn@ General 
Supervising Deputy Attpney . 
BETH FABER JACOBS - 
Deputy Attorney General 
CALIFORNIA DEPARTMENT OF 
-. 
JOELA. DAVIS* r - 
J. 
- 1 General 
JUSTICE 
,v' 300 South Spring Street 
Los Angeles, California 90013 
Telephone: (213) 897-2130 
Attorneys for Petitioner 
*Counsel of Record 
-- , - . , 
i 
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 I1 of the Americans with 
Disabilities Act of 1990 (ADA), 42 U.S.C. 0 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 Dustees of the University of 
Alabama u. Garrett, 531 US. 356 (2001) applied only to 
Title I of the ADA and not to actions arising under Title I1 
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 I1 of the ADA. The questions presented are: 
1. Does the Eleventh Amendment bar suit under 
Title I1 of the ADA against the California Medical 
Board for denial of a medical license based on the 
applicant’s mental illness? 
Does Title I1 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? 
.. 11 ... 
111 
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 
TABLE OF CONTENTS 
Page 
QUESTIONS PRESENTED. ..................................... i 
LIST OF PARTIES ................................................... ii 
PETITION FOR WRIT OF CERTIORARI ................ 1 
OPINIONS BELOW ................................................. 1 
JURISDICTION ....................................................... 2 
CONSTITUTIONAL AND STATUTORY PROVI- 
SIONS INVOLVED ............................................... 3 
STATEMENT ............................................................ 4 
REASONS FOR GRANTING THE WRIT ................. 6 
TION TO RESOLVE A SPLIT AMONG 
THE CIRCUITS OVER THE QUESTION 
WHETHER THE ELEVENTH AMENDMENT 
LEGED VIOLATION OF TITLE I1 OF THE 
ADA .................................................................... 6 
I. THE COURT SHOULD GRANT THE PETI- 
BARS SUIT AGAINST STATES FOR AL- 
A. 
B. 
The Ninth Circuit’s Error in Refusing to 
Apply this Court’s Gurrett Analysis to Ti- 
tle I1 of the ADA Results in the Improper 
Abrogation of California’s Sovereign 
Immunity ................................................ 6 
There Is a Clear Split among the Cir- 
cuits over the Question Whether, in Title 
I1 of the ADA, Congress Has Validly Ab- 
rogated State Sovereign Immunity under 
iv V 
TABLE OF CONTENTS 
Page 
11. 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 ILLNESS .......................... 11 
CONCLUSION ......................................................... 15 
APPENDIX ............................................................... APP. 1 
A. 
B. 
C. 
D. 
E. 
F. 
Hason u. Medical Board of California, 279 F.3d 
U.S. District Court, Case No. CV 99-0426 
AHM (RNB), Hason u. Medical Board of Cali- 
U.S. District Court, Case No. CV 99-0426 
AHM (RNB), Hason u. Medical Board of Cali- 
fornia , Order Adopting Findings and Conclu- 
sions and Recommendations of United States 
Magistrate Judge, filed March 31, 2002 ........... App. 15 
US. District Court, Case No. CV 99-04264- 
AHM (RNB), Hason v. Medical Board of Cali- 
fornia, Report and Recommendation of United 
States Magistrate Judge, dated February 1, 
2000 ................................................................... App. 17 
Hason u. Medical Board of California, 294 F.3d 
1166 (9th Cir. 2002) (Order Denying Rehearing 
en banc; O’Scannlain, J., dissenting) ................ App. 26 
U.S. District Court, Case No. CV 99-0426 AHM 
(RNB), Hason u. Medical Board of California, 
Civil Complaint, filed on April 21, 1999 .............. App. 37 
1167 (9th Cir. 2002) ........................................... APP. 1 
App. 14 fornia, Judgment, dated April 27, 2000 ............ 
TABLE OF AUTHORITIES 
Page 
CASES 
Alexander u. Margolis, 921 F.Supp. 482 (W.D. Mich. 
Board of Dustees of the University of Alabama u. 
Bowen u. American Hospital Assn., 476 U.S. 610 
Brown u. North Carolina Division of Motor Vehicles, 
Clark u. State of California, 123 F.3d 1267 (9th Cir. 
Collings u. Longuiew Fibre Co., 63 F.3d 828 (9th 
1995), aff ’d, 98 F.3d 1341 (6th Cir. 1996) ................ 12, 13 
Garrett, 531 U.S. 356 (2001) ...................... 1, 5, 6, 7, 8, 10 
(1986) .............................................................................. 14 
166 F.3d 698 (4th Cir. 1999) ........................................... 11 
..................................................................... 1997) 5, 71 8, 9 
Cir. 1995) ........................................................................ 14 
Dare u. California, 191 F.3d 1167 (9th Cir. 1999) ........ 5, 7, 8 
(9th Cir. 2002) ................................................................. 9 
Univs., 207 F.3d 945 (7th Cir. 2000) .............................. 10 
98 (2d Cir. 2001) ............................................................. 11 
tions, 301 F.3d 13 (1st Cir. 2002) ................................... 11 
Cir. 2002) ........................................................................ 10 
Pleas, 276 F.3d 808 (6th Cir. 2002) ................................ 11 
2001) ............................................................................... 10 . . . . . 
Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226 
Erichson v. Bd. of Governors of State Cols. and 
Garcia u. S.U.N.Y: Health Sciences Center, 280 F.3d 
Kiman u. New Hampshire Department of Correc- 
Klingler u. Dir, Dep’t of Revenue, 281 F.3d 776 (8th 
Popovich v. Cuyahoga County Court of Common 
vi vii 
TABLE OF AUTHORITIES . Continued 
Page 
Theriault u . Flynn. 162 F.3d 46 (1st Cir . 1998) ................. 13 
2001) ............................................................................... 10 
Vinson u . Thomas. 288 F.3d 1145 (9th Cir . 2002) ............... 9 
Thompson u . Colorado. 278 F.3d 1020 (10th Cir . 
CONSTITUTION 
United States Constitution. XI Amendment ...... 1.3.6. 7. 10 
United States Constitution. XIVAmendment ... 3.7.8.10. 11 
FEDERAL STATUTES 
28 U.S.C 
0 1254(1) .......................................................................... 2 
0 2403(a) .......................................................................... 2 
0 1983 .............................................................................. 5 
42 U.S.C. 
0 12101 ............................................................................ 1 
0 12132 ............................................................... 2. 4. 5. 11 
0 12131 ....................................................................... 3, 11 
STATE STATUTES 
Cal . Bus . and Prof . Code 
0 820 ............................................................................... 13 
0 2000 .............................................................................. 4 
3 2003 .............................................................................. 4 
0 2004 .............................................................................. 4 
9 2005 ................................................................................. 4 
TABLE OF AUTHORITIES . Continued 
Page 
0 2220 ............................................................................. 13 
0 2229 ........................................................................... 13 
0 2337 ............................................................................. 13 
0 1094.5 .......................................................................... 13 
Cal . Code Civ . Proc . 
Cal . Gov . Code 
0 11504 ............................................................................. 5 
1 
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 I1 of the Americans with Disabilities Act 
of 1990, 42 U.S.C. 9 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 Dustees 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 11. 
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. 
OPIMONS 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 
2 3 
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. 0 1254( 1). 
Given the Eleventh Amendment question presented in 
this petition, 28 U.S.C. 0 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. 
+ I 
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 I1 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 . . . ” 
4 5 
. . . 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. 0 12132. 
STATEMENT 
In March 1995, respondent Michael J. Hason applied 
for a license t o 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 pI 1, 14-16.’ 
Hason sought administrative review of the Board’s 
decision, and the denial was affirmed after hearing. App. 
38, App 45, g[q[ 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 9 2000, et 
seq. The Board consists of a Division of Licensing and a Division of 
Medical Quality. Cal. Bus. & Prof. Code 8 2003. The Board’s Division of 
Licensing is responsible for the issuance of medical licenses. Cal. Bus. 
& Prof. Code 0 2005. The Division of Medical Quality is charged with 
disciplining licensed physicians who violate the Medical Practice Act. 
Cal. Bus. & Prof. Code 5 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 8 2229. 
available. See Cal. Govt. Code 6 11504, Cal. Code Civ. Proc. 
0 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. 0 1983; and Title 
I1 of the ADA, 42 U.S.C. 0 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. 
I 
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 I1 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. 
I 
1 
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 fiustees of 
the University of Alabama v. Garrett, 531 U.S. 356 (2001), 
did not overrule prior Ninth Circuit decisions, Clark u. 
6 7 
u. 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 I1 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 
TION OF TITLE I1 OF THE ADA 
A. The Ninth Circuit’s Error in Refusing to 
Apply this Court’s Garrett Analysis to Ti- 
tle I1 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 
AGAINST STATES FOR ALLEGED VIOLA- 
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 nustees of the University of 
Alabama u. 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 t o 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 0 5 of the Fourteenth Amendment. This 
Court also explained that in order to invoke 9 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 t o 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 u. State of California, 123 F.3d 
1267 (9th Cir. 1997) and Dare u. California, 191 F.3d 1167 
(9th Cir. 1999), and holding that, in Title I1 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 
8 
tutional discrimination by the States against the disabled 
and (2) whether the remedial provisions of Title I1 are 
“congruent and proportional to any constitutional viola- 
9 
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 0 5 of the 
Fourteenth A~nendment.~ Id. 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 US. 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 I1 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 11, 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 11, 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 11. 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 
10 11 
B. There Is a Clear Split among the Circuits 
over the Question Whether, in Title I1 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 I1 ADA claim 
against a State agency. In fact, two Circuits have recently 
overruled their own pre-Garrett decisions: Reickenbacker 
u. Foster, 274 F.3d 974, 981 (5th Cir. 2001) (concluding 
that Garrett “effectively overruled” prior circuit precedent 
holding that Title I1 validly abrogated State sovereign 
immunity) and Thompson v. Colorado, 278 F.3d 1020, 1034 
(10th Cir. 2001), cert. denied, 122 SCt. 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 I1 was also not a valid abroga- 
tion of the Eleventh Amendment). 
Every other circuit considering the issue has either 
held that in Title I1 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. DiK, Dep’t of Revenue, 
281 F.3d 776, 777 (8th Cir. 2002) (affirming pre-Garrett 
decision holding that in Title I1 Congress did not validly 
abrogate state sovereign immunity); Erickson 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 engage-d 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 I1 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 PZeas, 276 F.3d 808, 812, 815-16 (6th 
Cir. 2002) (en banc) (agreeing that Title I1 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 u. S.U.N.Y: Health Sciences. Center, 280 F.3d 98, 
110-12 (2d Cir. 2001) (holding that Title I1 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 u. North Carolina Division of Motor Vehicles, 166 
F.3d 698, 707 (4th Cir. 1999) (holding that a regulation 
enacted pursuant to Title I1 did not validly abrogate state 
sovereign immunity.) 
11. THE AMElRICANS 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 I1 of the ADA, 42 U.S.C. $0 12131(2), 
12132. App. 9 through App. 10. The decision is unprece- 
dented among the circuits and, the Board contends, is 
12 13 
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 FSupp. 482 (W.D. Mich. 19951, 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 . . . [tlhe 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 
I 
I I 
I I 
I 
! 
! i 
! I 
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 f i s t Circuit’s reasoning that, “[iln determining whether 
‘essential eligibility requirements’ are met [for purposes of 
42 U.S.C. 0 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 0 2220. “Protection of the public shall be the 
highest priority.” Cal. Bus. & Prof. Code 0 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 
0 820, et. seq., and California provides full judicial review 
of licensing decisions, Cal. Code of Civil Proc. 0 1094.5, 
Cal. Bus. & Prof. Code 0 2337. As a matter of state policy, 
when physician rehabilitation and public protection are 
inconsistent, public protection is paramount. Cal. Bus. & 
Prof. Code 0 2229(c). 
Nothing in the statutory scheme of the ADA suggests 
that, by enacting Title 11, Congress intended to intrude 
14 15 
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 u. 
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 t o indicate, either in the statute or in 
the legislative history, that it envisioned federal superin- 
tendence of treatment decisions traditionally entrusted to 
state governance.” Id. at 643. Insofar as the ADA is con- 
strued in the same manner as the Rehabilitation Act of 
1973, see Collings u. Longuiew 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. 
. , _ . .. ,. i r : - i . . . I - . 
CONCLUSION 
For the reasons stated, the Medical Board of Califor- 
nia respectfully requests that its petition for writ of 
certiorari be granted. 
I 
Dated: September 23,2002 
Respectfully submitted, 
BILL LOCKYER, 
Attorney General 
MANUEL M. MEDEIROS 
State Solicitor General 
JAMES M. SCHIAVENZA 
Senior Assistant Attorney General 
CARLOS RAMlREz 
Senior Assistant Attorney General 
JOELA. D A ~ s * 
Supervising Deputy Attorney 
BETH FABER JACOBS 
Deputy Attorney General 
General 
CALIFORNIA DEPARTMENT OF 
JUSTICE