No. 02-479 
IN THE SUPREME COURT OF THE UNITED STATES 
October Term 2002 
________________ 
MEDICAL BOARD OF CALIFORNIA, 
Petitioner 
v. 
MICHAEL J. HASON, 
Respondent 
________________ 
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 
____________________ 
Erwin Chemerinsky 
Counsel of Record 
University of Southern 
California Law School 
699 Exposition Blvd. 
Los Angeles, CA 90089 
(213) 740-2539 
FAX (213) 740-5502
QUESTIONS PRESENTED 
1. Whether the Eleventh Amendment bars suit against the California Medical 
Licensing Board pursuant to Title II of the Americans with Disabilities Act for 
discrimination based on disability. 
2. Whether the California Medical Licensing Board’s discrimination based on 
disability in granting a medical license violates Title II of the Americans with 
Disabilities Act which prohibits the government from discriminating against the 
disabled in its “services, programs or activities.” 
i
Table of Contents 
QUESTION PRESENTED . . . . . . . . . . . . . . . . . i 
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii 
OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 1 
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . 1 
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 1 
REASONS THE PETITION SHOULD BE DENIED . . . . . . . . 3 
I. THE UNITED STATES COURT OF APPEALS FOR THE 
NINTH CIRCUIT CORRECTLY APPLIED CLEARLY 
ESTABLISHED PRINCIPLES IN HOLDING THAT THE 
CALIFORNIA MEDICAL LICENSING BOARD COULD BE 
SUED FOR VIOLATING TITLE II OF THE AMERICANS WITH DISABILITIES 
ACT . . . . . . . . . 3 
II. BECAUSE THERE IS NO SPLIT AMONG THE CIRCUITS 
AND BECAUSE THE NINTH CIRCUIT CORRECTLY 
FOLLOWED CLEARLY ESTABLISHED LAW, THIS COURT 
SHOULD NOT GRANT REVIEW AS TO WHETHER DENYING 
A MEDICAL LICENSE BASED ON DISABILITY IS 
ACTIONABLE UNDER TITLE II OF THE AMERICANS WITH 
DISABILITIES ACT . . . . . 9 
Conclusion . . . . . . . . . . . . . 11 
ii
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) 9 
City of Boerne v. Flores, 521 U.S. 507 (1997) 4, 5 
Clark v. California, 123 F.3d 1267 
(9th Cir. 1997) 5 
Dare v. California, 191 F.3d 1167 
(9th Cir. 1999), cert. denied, 121 
S.Ct. 1187 (2001) 4, 5 
Florida Prepaid Postsecondary Education 
Expense Board v. College Savings Bank, 
527 U.S. 627 (1999) 5 
Garcia v. S.U.N.Y. Health Sciences Center 
of Brooklyn, 280 F.3d 98 (2d Cir. 2001) 3 
Hason v. Medical Board of California, 279 
F.3d 1167 (9th Cir. 2002) passim 
Kiman v. New Hampshire Department of 
Corrections, 301 F.3d 13 (1st Cir. 2002) 3 
Klingler v. Director, Department of Revenue, 
281 F.3d 776 (8th Cir. 2002) 3 
iii
Popovich v. Cuyahoga County Court of Common 
Pleas, 276 F.3d 808 (6th Cir. 2002) (en banc), 
cert. denied, 70 U.S.L.W. 3656 (October 7, 2002) 4 
Reickenbacker v. Foster, 274 F.3d 974 
(5th Cir. 2001) 4 
Rice v. Cayetano, 120 S. Ct. 
1044 (2000) 8 
Seminole Tribe v. Florida, 517 U.S. 44 (1996) 5 
Thompson v. University of Colorado, 278 F.3d 1020 
(10th Cir. 2001) 4 
University of Alabama v. Garrett, 121 S.Ct. 
955 (2001) 4, 5, 6 
Wessell v. Glendening, 2002 WL 31121398 (4th Cir. 
September 26, 2002) 3 
Ex Parte Young, 209 U.S. 123 (1908) 2 
Zimmerman v. Oregon Department of Justice, 
170 F.3d 1169 (9th Cir. 1999) 10 
Statutes 
42 U.S.C. §12132 passim 
Legislative History 
S. Rep. No. 116, 101st Cong., 1st 
Sess. 6 (1989) 6 
H.R. Rep. No. 485, Pt. 2, 101st 
Cong., 2d Sess. 28 (1990) 6 
iv
OPPOSITION TO PETITION FOR WRIT OF CERTIORARI 
Respondent Michael J. Hason hereby opposes the Petition for a Writ of 
Certiorari by the Medical Board of California to review the judgment of the United 
States Court of Appeals for the Ninth Circuit in this case. 
OPINIONS BELOW 
Respondent adopts and incorporates by reference all opinions and orders 
below that are set forth in Appendices A through F to the Petition for Writ of 
Certiorari. 
STATEMENT OF THE CASE 
Dr. Michael J. Hason, applied for a license to practice medicine in California 
in March 1995. After three years of consideration, in April 1998, the California 
Medical Board denied Dr. Hason's application for a medical license based on his 
prior history of depression. Dr. Hason filed a pro se complaint in federal district 
court on April 21, 1999, alleging that he was impermissibly discriminated against 
based on his disability in violation of his rights under the United States Constitution 
and the Americans with Disabilities Act. Dr. Hason named as defendants the 
Medical Licensing Board of California and several officials and officers of the 
Medical Licensing Board. Dr. Hason sought both damages and injunctive relief. 
On February 1, 2000, the United States Magistrate Judge issued a Report and 
Recommendation. The Magistrate Judge recommended dismissal of Dr. Hason's
2 
complaint on two grounds. First, the Magistrate Judge said that the claims against 
state officers and state agencies for injunctive and damages relief were barred by the 
Eleventh Amendment. Report and Recommendation of the Magistrate Judge, pp. 2- 
3 (Appendix D to the Petition for Writ of Certiorari). The Magistrate Judge ruled 
that state officers may not be sued for injunctive relief and said that the Eleventh 
Amendment bars "plaintiff's federal civil rights claims against those defendants to 
the extent that the plaintiff is seeking injunctive relief." Id. The Magistrate Judge 
also ruled that the State government may not be sued for violating Title II of the 
Americans with Disabilities Act. Second, the Magistrate Judge said that there is 
not a cause of action under Title II for discrimination based on disability in issuing a 
medical license. 
On March 31, 2000, the United States District Court, without a written 
opinion, issued an Order Adopting Findings, Conclusions, and Recommendations of 
United States Magistrate Judge. (Appendix C to the Petition for Writ of Certiorari). 
The United States Court of Appeals for the Ninth Circuit reversed the District 
Court and held that Title II may be used to sue the state because it is an appropriate 
exercise of Congress’s power under section five of the Fourteenth Amendment. The 
court also ruled that state officers may be sued for injunctive relief pursuant to
1The State understandably is not seeking certiorari on the Ninth Circuit’s 
holding that state officers may be sued for injunctive relief under Ex parte Young 
209 U.S. 123 (1908). 
2The Court of Appeals also ruled that the claims for damages against the 
officers in their individual capacities were properly dismissed for failure of service 
of process. Therefore, Dr. Hason’s recovery of damages rests entirely on his claim 
against the Medical Licensing Board, pursuant to Title II of the Americans with 
Disabilities Act, which is the focus of the Medical Licensing Board’s Petition for a 
Writ of Certiorari. 
3 
§1983.1 Additionally, the court held that medical licensing is a "service, program, 
or activity" within the scope of Title II of the Americans with Disabilities Act and 
thus that Dr. Hason stated a claim upon which relief could be granted. (Appendix A 
to the Petition for Writ of Certiorari).2 
The State of California sought en banc review in the United States Court of 
Appeals for the Ninth Circuit. On June 26, 2002, the Ninth Circuit denied the 
request for en banc review. (Appendix E to the Petition for Writ of Certiorari). 
REASONS THE PETITION SHOULD BE DENIED 
I. THE UNITED STATES COURT OF APPEALS FOR THE 
NINTH CIRCUIT CORRECTLY APPLIED CLEARLY 
ESTABLISHED PRINCIPLES IN HOLDING THAT THE 
CALIFORNIA MEDICAL LICENSING BOARD COULD BE 
SUED FOR VIOLATING TITLE II OF THE AMERICANS 
WITH DISABILITIES ACT 
The Petitioner, the California Medical Licensing Board, is obviously correct 
in identifying a split among the circuits concerning whether state governments may
4 
be sued for violating Title II of the Americans with Disabilities Act. See, e.g., 
Wessell v. Glendening, 2002 WL 31121398 (4th Cir. Sept. 26, 2002) (states may not 
be sued for violating Title II); Kiman v. New Hampshire Department of 
Corrections, 301 F.3d 13 (1st Cir. 2002) (states may be sued for violations of Title 
II in cases in which the court “identifies a constitutional violation by the state”); 
Klingler v. Director, Department of Revenue, 281 F.3d 776 (8th Cir. 2002) (states 
may not be sued for violating Title II); Garcia v. S.U.N.Y. Health Sciences, 280 
F.3d 98 (2d Cir. 2001) (states may be sued for violations of Title II only if there are 
allegations of discriminatory animus against the disabled); Thompson v. Colorado, 
278 F.3d 1020 (10th Cir. 2001), cert. denied, 122 S.Ct. 1961 (2002) (states may not 
be sued under Title II); Popovich v. Cuyoga County Court of Common Pleas, 276 
F.3d 808 (6th Cir. 2002) (en banc), cert. denied, 70 U.S.L.W. 3656 (October 7, 
2002) (states may be sued under Title II for due process violations, but not for equal 
protection violations); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) (states 
may not be sued). 
However, review is unnecessary in this case because the Ninth Circuit 
correctly applied this Court’s precedents in holding that the Medical Licensing 
Board may be sued for violating Title II of the Americans with Disabilities Act. In 
its most recent decision concerning sovereign immunity, University of Alabama v.
5 
Garrett, this Court said that it was applying "now familiar principles." 121 S.Ct. 
955, 963 (2001). Specifically, the Court said in assessing the validity of "§5 
legislation reaching beyond the scope of §1's actual guarantees," the legislation 
"must exhibit 'congruence and proportionality between the injury to be prevented or 
remedied and the means adopted to that end.'" Id. at 963 (quoting City of Boerne v. 
Flores, 521 U.S. 507, 520 (1997)). 
In Dare v. California, the Ninth Circuit undertook exactly this analysis and 
unequivocally concluded that Title II of "the ADA the ADA was a congruent and 
proportional exercise of Congress's enforcement powers under §5 of the Fourteenth 
Amendment that abrogated Eleventh Amendment immunity." 191 F.3d 1167, 1175 
(9th Cir. 1999), cert. denied, 121 S.Ct. 1187 (2001). Dare was decided after the 
Supreme Court's rulings in Seminole Tribe v. Florida, 517 U.S. 44 (1996); City of 
Boerne v. Flores, 521 U.S. 507 (1997), and Florida Prepaid Postsecondary 
Expense Education Board v. College Savings Bank, 527 U.S. 627 (1999), clarified 
the law with regard to Congress's power to override the Eleventh Amendment and 
its authority under §5 of the Fourteenth Amendment. 
In this case, the United States Court of Appeals for the Ninth Circuit followed 
its precedents, Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir. 1997) and 
Dare v. California, and held that the State Medical Licensing Board could be sued
6 
for discrimination based on disability. The Medical Licensing Board contends that 
the Supreme Court's decision in Garrett undercuts these Ninth Circuit decisions. 
Garrett does nothing of the sort. In Garrett, at the outset of the majority opinion, 
this Court expressly stated that it was not considering the constitutionality of Title II 
because it "has somewhat different remedial provisions from Title I." 121 S.Ct. at 
960 n.1. Moreover, in Garrett, this Court contrasted the lack of a documented 
history of discrimination in employment by the states (the focus of Title I), with the 
Congressional record detailing discrimination by the states in providing public 
services (Title II). Id. at 966 & n.7. 
Title II differs from Title I in four significant respects. First, Congress made 
express findings of persistent discrimination in "public services." Unlike 
employment, where Congress made a finding about private employment, but no 
analogous finding for public employment, 121 S.Ct. at 966, in the text of statute 
itself Congress made express findings of persisting discrimination in "education, . . . 
institutionalization, . . . voting, and access to public services." 42 U.S.C. 
§12101(a)(3). The same Committee Reports that the Court in Garrett found lacking 
with regard to public employment are directly on point in finding government 
discrimination with regard to public services. See S. Rep. No. 116, 101st Cong., 1st 
Sess. 6 (1989); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 28 (1990).
7 
Second, Congress's findings were based on an extensive record of 
unconstitutional state conduct regarding people with disabilities in the areas covered 
by Title II, a record more extensive than existed for employment alone. The Ninth 
Circuit, in Dare, relied on this record in concluding that Title II is a constitutional 
exercise of Congress's section five power because of the documented pattern of 
pervasive constitutional violations. 191 F.3d at 1175. 
Third, unlike Title I, which was intended simply to redress violations of the 
Equal Protection Clause as applied to a non-suspect class in an area (employment) 
not otherwise subject to heightened scrutiny, the range of constitutional violations 
implicated by Title II extends to areas where heightened judicial scrutiny is 
appropriate. Title II governs all the operations of a State, which plainly 
encompasses state conduct subject to a number of other constitutional limitations 
embodied in the First, Fourth, Fifth, Sixth, Seventh, Eighth Amendments and 
incorporated and applied to the States through the Fourteenth Amendment. These 
rights include the right to vote, to access the courts, to petition officials for the 
redress of grievances, to be accorded due process by law enforcement officials, and 
to humane conditions of confinement. 
Finally, the remedy enacted by Congress is more proportional and congruent 
to this record of violations than the record discussed in Garrett. Title II targets
8 
discrimination that is unreasonable. The States retain their discretion to exclude 
persons from programs, services, or benefits for any lawful reason unconnected with 
their disability or for no reason at all. Title II also permits discrimination if a person 
cannot "meet[] the essential eligibility requirements" of the governmental program 
or service. 42 U.S.C. 12131(2). But once an individual proves that she can meet all 
but the non-essential eligibility requirements of a program or service, the 
government's interest in excluding that individual "by reason of such disability," 42 
U.S.C. 12132, is both minimal and, in light of history, constitutionally problematic. 
At the same time, permitting the States to retain and enforce their essential eligibility 
requirements protects their legitimate interests in selecting and structuring 
governmental activities. Title II thus carefully balances a State's legitimate 
operational interests against the right of a person with a disability to be judged "by 
his or her own merit and essential qualities." Rice v. Cayetano, 120 S. Ct. 1044, 
1057 (2000). It is exactly for this reason that the Ninth Circuit found that Title II is 
a constitutional exercise of Congress's powers under section five of the Fourteenth 
Amendment.
II. BECAUSE THERE IS NO SPLIT AMONG THE CIRCUITS 
AND BECAUSE THE NINTH CIRCUIT CORRECTLY 
FOLLOWED CLEARLY ESTABLISHED LAW, THIS COURT
9 
SHOULD NOT GRANT REVIEW AS TO WHETHER 
DENYING A MEDICAL LICENSE BASED ON DISABILITY IS 
ACTIONABLE UNDER TITLE II OF THE AMERICANS 
WITH DISABILITIES ACT 
Title II of the Americans with Disabilities Act 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(2). Dr. Hason’s complaint alleges that he was denied a medical license 
because of a mental disability, specifically his prior bouts of depression. Dr. 
Hason’s complaint alleges that his depression has been successfully treated and that 
he is thus able to perform as a doctor. 
The United States Court of Appeals for the Ninth Circuit ruled that there is a 
cause of action under Title II of the Americans with Disabilities Act for 
discrimination against the disabled in medical licensing. In reaching this conclusion, 
the court applied the literal language of Title II, its broad remedial purposes, and 
well established law to conclude that discrimination based on disability in medical 
licensing is prohibited by Title II of the Americans with Disabilities Act. 
This holding does not conflict in any way with the decisions of any other 
Circuit. No other Circuit has yet ruled on the issue. The Medical Licensing Board,
10 
in its Petition for a Writ of Certiorari, identifies only one district court decision 
which is contrary to the Ninth Circuit’s holding. Alexander v. Margolis, 921 
F.Supp. 482 (W.D. Mich. 1995), aff’d on other grounds, 98 F.3d 1341 (6th Cir. 
1996). In light of the absence of any split in the circuits, this is not an issue which 
the Supreme Court should address at this time. 
Title II prohibits the government from discriminating in "services, programs, 
or activities." Issuing medical licenses obviously fits within this description. The 
Court of Appeals properly concluded that "the magistrate judge's narrow 
construction of the phrase 'services, programs, or activities,' is at odds with the 
remedial goals underlying the ADA. Courts must broadly construe the language of 
the ADA broadly in order to effectively implement the ADA's fundamental purpose 
of 'providing a clear and comprehensive national mandate for the elimination of 
discrimination against individuals with disabilities.'" Hason v. Medical Board of 
California, 279 F.3d 1167, 1172 (9th Cir. 2002) (citations omitted). 
Nothing in Title II or its legislative history provides any basis for excluding 
medical licensing from its scope. The Court of Appeals followed its prior decision 
in Zimmerman v. Oregon Department of Justice, 170 F.3d 1169 (9th Cir. 1999), 
and concluded that Title II applies because licensing is an "output," a "service" 
provided by the State. The court explained: "Viewed in light of the Zimmerman
11 
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. providing a 'service') to an applicant for a medical license." 
279 F.3d at 1172. 
Because there is no split among the circuits on this issue and because of the 
strong basis for the Court of Appeal’s decision in the text and history of the 
Americans with Disabilities Act, certiorari should not be granted on this issue. 
Conclusion 
For the foregoing reasons, respondent Michael J. Hason urges this Court to 
deny the petition for a writ of certiorari. 
Respectfully submitted, 
Erwin Chemerinsky 
(Counsel of record) 
University of Southern 
California Law School 
699 Exposition Blvd. 
Los Angeles, CA 90089 
(213) 740-2539 
Certificate of Service 
I, Erwin Chemerinsky, a member of the Bar of this Court, hereby certify that on the 
16th day of October 2002, three copies of the Brief in Opposition to Petition for 
Writ of Certiorari were mailed, first class postage prepaid, to:
12 
Joel A. Davis 
Supervising Deputy Attorney General 
California Department of Justice 
300 South Spring Street 
Los Angeles, CA 90013 
Erwin Chemerinsky 
Counsel of Record 
University of Southern 
California Law School 
699 Exposition Blvd. 
Los Angeles, CA 90089 
(213) 740-2539