Guttman v. Khalsa

FILED
United States Court of Appeals
Tenth Circuit
January 11, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
STUART T. GUTTMAN, M.D.,
Plaintiff-Appellant,
v. Nos. 10-2167 and 10-2172
G.T.S. KHALSA; LIVINGSTON
PARSONS; and THE STATE OF
NEW MEXICO,
Defendants-Appellees.
_______________________
UNITED STATES OF AMERICA,
Intervenor-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:03-CV-463-MCA-KBM)
Ian D. McKelvy, Sanders, Bruin, Coll & Worley, P.A., Roswell, New Mexico, for
Plaintiff-Appellant.
Dirk C. Phillips, Attorney, Appellate Section, Civil Rights Division (Thomas E.
Perez, Assistant Attorney General, and Diana K. Flynn, with him on the briefs),
United States Department of Justice, Washington, District of Columbia, for
Intervenor-Appellant.
Thomas C. Bird (Sean Olivas and Neil R. Bell, with him on the brief), Keleher &
McLeod, P.A., Albuquerque, New Mexico, for Defendants-Appellees.
Before BRISCOE, Chief Judge, and EBEL and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
The question presented in this appeal is whether the Eleventh Amendment
protects New Mexico from a suit for money damages under Title II of the
Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12131–65. We conclude it
does. New Mexico has state sovereign immunity from a claim that it violated the
ADA when it revoked the medical license of a physician whose practice the state
claimed constituted an imminent danger to the public.
As a result, we find the district court did not err by dismissing the ADA
claim of the appellant, Dr. Stuart Guttman, against the State of New Mexico for
revoking his medical license. We also conclude the state’s actions did not violate
the United States Constitution. But after a careful review of the record, it appears
that Guttman may still have extant claims for prospective injunctive relief.
Having jurisdiction under 28 U.S.C. § 1291, we therefore AFFIRM in part,
REVERSE in part, and REMAND for further consideration of the claim for
injunctive relief against the individual defendants on the basis of the alleged ADA
violation.
-2-
BACKGROUND
The factual and procedural background of this case is complex, and has
been extensively recounted in four prior opinions. See Guttman v. Khalsa, 320 F.
Supp. 2d 1164 (D.N.M. 2003) (Guttman I); Guttman v. Khalsa, 401 F.3d 1170
(10th Cir. 2005) (Guttman II); Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006)
(Guttman III); Guttman v. New Mexico, 325 F. App’x 687 (10th Cir. 2009)
(Guttman IV). Thus, we provide only a summary of the underlying facts and
procedural history relevant to this appeal.
I. Board of Medical Examiners
Stuart Guttman is a physician with a history of depression and post-
traumatic stress disorder. At the time he brought this case, he was practicing
medicine in Truth or Consequences, New Mexico. Before that, he practiced in
Gallup, New Mexico, and also in Mississippi and Texas. Because of his medical
history, when he applied for a New Mexico medical license in 1993, the New
Mexico Board of Medical Examiners (the Board) initially granted him only a
qualified medical license, subject to quarterly reports by his psychiatrist and other
conditions. The Board removed these requirements in 1995.
Four years later, after receiving many complaints about Guttman, the Board
directed him to meet with an Impaired Physician Committee (IPC). The IPC
consisted of an anesthesiologist and two psychiatrists. Before meeting Guttman,
the IPC reviewed reports of his conduct in Truth or Consequences, which
-3-
indicated that his problems interacting with others had caused disruptions among
healthcare providers.
The IPC then interviewed Guttman. During that meeting, Guttman
allegedly told the IPC that no complaints had been filed against him in either
Gallup or Texas. Nevertheless, the IPC recommended the Board further
investigate Guttman’s conduct in those locations. Two weeks later, the IPC
received materials from Gallup indicating numerous complaints against Guttman
by patients, their families, and hospital staff. The IPC also learned Guttman had
been sued for malpractice and that a Gallup hospital had denied him staff
privileges. In response, the IPC reported to the Board that Guttman’s
interpersonal problems were serious and “certainly [had] a deleterious influence
on his ability to diagnose and manage patients.” R. at 217. The IPC also
concluded Guttman’s behavior was neither “situation nor place related.” Id.
In March 2000, the Board summarily suspended Guttman’s license after
finding clear and convincing evidence that “Guttman’s continuation in practice
would constitute an imminent danger to public safety.” Id. at 303. Following the
suspension, the Board conducted a three-day administrative hearing to take
evidence on whether the suspension should be made permanent. Guttman
participated in the hearing with the assistance of counsel. As an alternative to
revocation, Guttman proposed more stringent stipulations on his license, but the
-4-
IPC members testified they could envision no restrictions that would enable
Guttman to practice medicine safely.
In February 2001, after recognizing an extensive pattern of disruptive and
abusive behavior by Guttman in dealing with patients and healthcare
professionals, the Board revoked his license. The Board also found that further
treatment of his mental health problems was unlikely to succeed, and that
Guttman’s inability to interact professionally with others posed a danger to his
patients.
II. State and Federal Court Proceedings
Guttman challenged the Board’s findings in state court, asserting for the
first time that the Board’s actions violated Title II of the ADA. Because Guttman
had not raised an ADA claim before the Board, the state court refused to consider
it and affirmed the revocation of his license. Guttman then petitioned both the
New Mexico Court of Appeals and the New Mexico Supreme Court for review,
but they did not disturb the lower court’s holding.
While his petition to the New Mexico Supreme Court was pending,
Guttman filed a pro se complaint in federal district court against New Mexico and
two individuals: G.T.S. Khalsa, the Board’s administrative prosecutor, and
Livingston Parsons, the Board’s hearing officer. The district court granted the
defendants’ motion for summary judgment after finding (1) the individual
defendants were entitled to absolute immunity, and (2) the Rooker-Feldman
-5-
doctrine prohibited consideration of Guttman’s Title II claim. 1 Guttman I, 320 F.
Supp. 2d at 1164. We affirmed, but the Supreme Court granted certiorari and
vacated our judgment in light of Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280 (2005). Guttman II, 401 F.3d at 1170, vacated and remanded, 546
U.S. 801 (2005).
On remand, after finding the district court had subject matter jurisdiction to
hear the case, we upheld the district court’s ruling that Khalsa and Parsons were
entitled to absolute immunity. But we remanded the case to determine, in light of
Tennessee v. Lane, 541 U.S. 509 (2004), and United States v. Georgia, 546 U.S.
151 (2006), whether Title II of the ADA validly abrogated sovereign immunity in
the area relevant to this controversy. Guttman III, 446 F.3d at 1027, 1035–36.
After we issued Guttman III, Guttman filed an amended complaint, which
contained the following claims under Title II and 42 U.S.C. § 1983: (1) an ADA
claim, (2) an equal protection claim, (3) a procedural due process claim, (4) a
First Amendment retaliation claim, (5) a “defamation and false data bank report”
claim, which Guttman now calls a “stigma plus” claim, and (6) a claim for
injunctive relief. The amended complaint’s principal alterations were the addition
1
Rooker-Feldman doctrine, which was enunciated by the Supreme Court in
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983), prohibits “state-court losers” from
bringing suit in federal court “complaining of injuries caused by state court
judgments rendered before [parallel federal] district court proceedings
commenced and inviting district court review and rejection of those judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
-6-
of the injunctive relief claim and a reference to Khalsa and Parsons in their
official capacities.
The district court considered the claims against New Mexico and the
individual defendants separately, in a series of memorandum opinions and orders.
In October 2006, the court again granted the Board members’ motion to dismiss,
holding they were entitled to absolute immunity for all claims under Title II and
§ 1983. R. at 69–88. But after a request to reconsider the dismissal, the court
restored the stigma-plus claim and clarified that it was the only claim remaining
against the individual defendants. Id. at 89–92. Finally, in June 2007, the court
granted the individual defendants’ motion to dismiss in toto, holding they were
entitled to qualified immunity on that last remaining claim. Id. at 100–17.
With regard to Guttman’s Title II claim against New Mexico, the district
court found he had alleged sufficient facts to demonstrate a protected disability
under Title II and concluded the sovereign immunity analysis would be “more
appropriate for a decision at a later stage,” because “a decision will require some
development of the facts.” Id. at 72. New Mexico timely filed an interlocutory
appeal. We vacated the district court’s denial of the State’s motion to dismiss and
remanded for consideration of the sovereign immunity issue. Guttman IV, 325 F.
App’x at 690–92.
In March 2010, after finally considering New Mexico’s Eleventh
Amendment claim, the district court concluded that Title II did not validly
-7-
abrogate state sovereign immunity because its remedy was not proportional to a
pattern of unconstitutional state action in the area of professional licensing.
Although the district court permitted Guttman to file a second amended
complaint, the court later concluded the only remaining claim for which a ruling
had not been made was Guttman’s First Amendment retaliation claim against New
Mexico, which it dismissed. And after finding all of Guttman’s claims had been
resolved, the district court granted the defendant’s motion to dismiss the second
amended complaint.
ANALYSIS
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.
A “qualified individual with a disability” is defined as “an individual with a
disability who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation barriers,
or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by a public entity.” Id. § 12131(2). Title II authorizes suits
by private citizens for money damages against public entities that violate § 12132.
See id. § 12133 (incorporating by reference 29 U.S.C. § 794a).
-8-
Two questions are before us in this appeal: (1) whether Guttman can
proceed on his Title II claim against New Mexico, and (2) whether any claims
against the individual defendants remain.
I. Preclusion and Waiver
Before addressing the merits of the sovereign immunity question, we must
resolve two preliminary issues. First, New Mexico contends Guttman is
collaterally estopped from bringing his Title II claim because the Board made a
factual determination regarding his competency to practice medicine, and the state
trial court affirmed the Board’s order. Second, Guttman claims New Mexico
waived its defense of sovereign immunity when responding to the complaint.
A. Collateral Estoppel
We review de novo the district court’s application of the doctrine of
collateral estoppel, which is also known as issue preclusion. Dodge v. Cotter
Corp., 203 F.3d 1190, 1197 (10th Cir. 2000). “[Collateral estoppel] means simply
that when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any
future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). Federal courts give
state agency determinations the same preclusive effect that the forum state’s
courts would afford them. University of Tenn. v. Elliott, 478 U.S. 788, 799
(1986). Under New Mexico law, collateral estoppel bars re-litigation of the same
issue if
-9-
(1) the party to be estopped was a party to the prior proceeding,
(2) the cause of action in the case presently before the court is
different from the cause of action in the prior adjudication, (3)
the issue was actually litigated in the prior adjudication, and (4)
the issue was necessarily determined in the prior litigation.
Ideal v. Burlington Res. Oil & Gas Co., 233 P.3d 362, 365–66 (N.M. 2010)
(quoting Shovelin v. Cent. N.M. Elec. Coop., Inc., 850 P.2d 996, 1000 (N.M.
1993)).
The state defendants contend the question of whether Guttman’s disability
could be reasonably accommodated is necessarily precluded by the outcome of the
Board’s factual determinations regarding his competency to practice medicine and
the state trial court’s decision affirming the Board’s order. They argue these
determinations prevent Guttman from establishing an essential element to an
ADA claim—that he is a “qualified individual with a disability” under
§ 12131(2)—because “[a] physician whose mental condition poses a risk to the
public cannot practice medicine with reasonable skill and safety.” Aple. Br. at 46
(citing Alexander v. Margolis, 921 F. Supp. 482, 488–89 (W.D. Mich. 1995), aff’d
98 F.3d 1341 (6th Cir. 1996)). The district court declined to dismiss Guttman’s
complaint on collateral estoppel grounds after concluding the issue would be
more appropriately addressed in the context of a summary judgment motion. R. at
372.
We agree with the district court for two reasons. First, as far as we can tell
from the record, the Board may not have established that Guttman was not a
-10-
qualified individual under the ADA. A qualified individual is “an individual with
a disability who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation barriers,
or the provision of auxiliary aides and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by a public entity.” § 12131(2). The Board may have
established only that Guttman has a disability. Indeed, although the Board found
“[p]rior therapeutic treatment has not been effective in changing [Guttman]’s
behavior, and further treatment would not likely be effective in changing his
behavior,” R. at 333, this is not the same as a finding that the behavior cannot be
reasonably accommodated under the ADA. Rather, it may be possible to
accommodate a disability without resolving the disability itself. For example,
during the Board’s administrative hearing, Guttman proposed stipulations on his
license that would restrict him to a solo practice in an outpatient, clinical setting.
These restrictions were intended to accommodate Guttman’s disability not by
changing his behavior, but by ameliorating its effect. As a result, we cannot
conclude on this record the exact issue of accommodation was actually litigated in
the prior adjudication. Factual questions regarding whether Guttman is a
qualified individual who can be reasonably accommodated still preclude us from
finding issue preclusion as a matter of law. And since Guttman did not raise his
ADA claim in the revocation hearing—which would have alerted the Board that it
-11-
should address the possibility of reasonable accommodation under the statute—we
cannot be sure this issue was necessarily determined when the Board revoked
Guttman’s license.
Given that the Board made no finding on the issue of accommodation,
defendants may prevail on their collateral estoppel defense only if they can show
that an individual with Guttman’s disability is unable to be accommodated as a
matter of law. To this end, defendants point to Alexander, 98 F.3d at 1341, but
that case provides no support on this issue. In summarily affirming the district
court’s decision, the Sixth Circuit merely noted the plaintiff had failed to prove
he met the statutory standard, without explaining why. See id. Likewise, Doe v.
University of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir. 1995), provides
no support for the fact that it would be categorically impossible to accommodate a
person with Guttman’s disability. So even if we were to give preclusive effect to
the Board’s finding that Guttman posed an imminent danger to public safety, this
alone does not decide the issue of accommodation, and it would not prevent
Guttman from filing a Title II claim.
In summary, we agree with the district court that New Mexico has failed to
establish in its motion to dismiss that Guttman is precluded from raising his Title
II claim.
B. Waiver of Sovereign Immunity
New Mexico asserted its sovereign immunity defense in its first motion to
-12-
dismiss and in many subsequent pleadings. Nonetheless, Guttman contends New
Mexico waived immunity by entering into a joint status report and provisional
discovery plan. We see no waiver.
Although a state may waive the sovereign immunity granted to it under the
Eleventh Amendment, we require a showing of unequivocal intent to do so.
Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1233 (10th Cir. 1999).
Although it has acceded to the reality of some discovery in the early stages of
litigation, New Mexico continues to preserve its sovereign immunity defense. See
Joint Status Report and Provisional Discovery Plan at 3 (“Defendants contend that
they are entitled to Eleventh Amendment immunity, absolute judicial or quasi-
judicial immunity, and that the individual Defendants are entitled to qualified
immunity.”) (Guttman v. Khalsa, No. 03-cv-463-MCA-KBM (D.N.M. Jan. 1,
2007), Doc. No. 49.). We find New Mexico did not waive its sovereign immunity
defense.
II. Sovereign Immunity Analysis
Having determined no threshold issue allows us to resolve this case without
addressing the sovereign immunity question, we now turn to the merits of that
claim.
A. Eleventh Amendment Legal Framework and the ADA
The principle of state sovereign immunity is traceable to the earliest days
of the Republic. For example, in Federalist No. 81, Alexander Hamilton wrote,
-13-
“It is inherent in the nature of sovereignty [that a sovereign is] not to be amenable
to the suit of an individual without its consent. This is the general sense and the
general practice of mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every State in the Union.
Unless, therefore, there is a surrender of this immunity in the plan of the
convention, it will remain with the States . . . .” The Federalist No. 81, at 548–49
(J. Cooke ed. 1961) (A. Hamilton) (emphasis deleted); see also Hans v.
Louisiana, 134 U.S. 1, 13 (1890) (quoting Federalist No. 81).
Nevertheless, in 1793, the Supreme Court concluded the original states had
surrendered much of their sovereign immunity. Chisholm v. Georgia, 2 Dall. 419
(1793). The swift and immediate negative reaction to that decision led to its
reversal through the ratification of the Eleventh Amendment.
The Eleventh Amendment grants immunity to the states from “any suit in
law or equity, commenced or prosecuted . . . by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Although the
Amendment “by its terms . . . applies only to suits against a State by citizens of
another State,” the Supreme Court has repeatedly held States are immune to
unconsented suits brought by their own citizens as well. Board of Trs. of the
Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). Thus, as the Court has
consistently recognized, “That a State may not be sued without its consent is a
fundamental rule of jurisprudence having so important a bearing upon the
-14-
construction of the Constitution of the United States that it has become
established by repeated decisions of this court that the entire judicial power
granted by the Constitution does not embrace authority to entertain a suit brought
by private parties against a State without consent given.” Ex parte New York, 256
U.S. 490, 497 (1921).
Nonetheless, “Congress may . . . abrogate [state sovereign] immunity in
federal court if it makes its intention to abrogate unmistakably clear in the
language of the statute and acts pursuant to a valid exercise of its power under § 5
of the Fourteenth Amendment.” Nevada Dep’t of Human Resources v. Hibbs, 538
U.S. 721, 726 (2003). As it bears on the issues in this case, the Fourteenth
Amendment provides:
Section 1 . . . . No State shall . . . deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
* * *
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
U.S. Const. amend. XIV. The enforcement prerogative granted by § 5 gives
Congress broad authority, such that it may enact “prophylactic legislation that
proscribes facially constitutional conduct, in order to prevent and deter
unconstitutional conduct,” so long as these measures do not work a substantive
-15-
change in the governing law. Hibbs, 538 U.S. at 727–28. The ADA is one such
piece of prophylactic legislation.
The Supreme Court closely scrutinizes prophylactic legislation under § 5 to
ensure Congress does not overreach into core state governmental functions. For
“private individuals to recover money damages against the States, there must be a
pattern of discrimination by the States which violates the Fourteenth Amendment,
and the remedy imposed by Congress [such as the ADA] must be congruent and
proportional to the targeted violation.” Garrett, 531 U.S. at 374; see also City of
Boerne v. Flores, 521 U.S. 507, 520 (1997). The Court has not arrived at a
concrete definition of congruence and proportionality, but it is clear that Congress
enjoys greater power under § 5 when it responds to a clearly discernible pattern of
state encroachment on fundamental or other important constitutional rights. See
Tennessee v. Lane, 541 U.S. 522, 529 (2004) (where a right is implicated that is
subject to a heightened standard of judicial scrutiny, “it [is] easier for Congress to
show a pattern of state constitutional violations than in [cases that] concern[]
legislation that target[s] classifications subject to rational-basis review”).
Congressional regulation is less likely to be congruent and proportional if the
rights at issue are not subject to heightened judicial scrutiny. See id.
This case centers on the ADA’s relationship to the Eleventh Amendment.
Passed in 1990, the ADA seeks to vindicate the rights of the disabled. Title II of
the statute forbids discrimination against the disabled in public services,
-16-
programs, and activities. 2 Title II specifies 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 subject to discrimination by any such entity.” 42 U.S.C. § 12132. Title II
authorizes suits by private citizens for money damages against public entities that
violate § 12132. See id. § 12133 (incorporating by reference 29 U.S.C. § 794a).
The Supreme Court has already addressed several Eleventh Amendment
challenges to the ADA, with varying results. See United States v. Georgia, 546
U.S. 151 (2006); Tennessee v. Lane, 541 U.S. 509 (2004); Board of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356 (2001). Most relevant here, in Tennessee v. Lane,
541 U.S. at 533–34, the Court held that “Title II, as it applies to the class of cases
implicating the fundamental right of access to the courts, constitutes a valid
exercise of Congress’ § 5 authority to enforce the guarantees of the Fourteenth
Amendment.” The Court, however, specifically declined to address the question
“whether Title II’s duty to accommodate exceeds what the Constitution requires
in the class of cases that implicate only [the] prohibition on irrational
discrimination.” Id. at 532 n.20. Therefore, by its own terms, Lane does not
resolve the specific question here: whether the accommodation requirement of
2
As the Supreme Court explained in Lane, 541 U.S. 522–23, Title II “also
seeks to enforce a variety of other basic constitutional guarantees, infringements
of which are subject to more searching judicial review,” including the
fundamental right of access to the courts, which was at issue in Lane.
-17-
Title II is a valid exercise of the § 5 authority, as it applies to cases involving
professional licensing.
To resolve this question, we apply the Court’s three-step analysis from
United States v. Georgia. That analysis requires us to
determine in the first instance, on a claim-by-claim basis,
(1) which aspects of the State’s alleged conduct violated Title II;
(2) to what extent such misconduct also violated the Fourteenth
Amendment; and (3) insofar as such misconduct violated Title II
but did not violate the Fourteenth Amendment, whether
Congress’s purported abrogation of sovereign immunity as to that
class of conduct is nevertheless valid.
546 U.S. at 159. Because we reach the third step of this analysis, we must also
ask “whether Congress unequivocally expressed its intent to abrogate that
immunity” and, “if it did, whether Congress acted pursuant to a valid grant of
constitutional authority.” Lane, 541 U.S. at 517.
Given this legal framework, we apply the test from Georgia to the Title II
claims in this case.
1. Step One: The Alleged Title II Violation
The first step from Georgia, 546 U.S. at 159, requires us to identify the
state’s conduct that allegedly violated Title II’s prohibition against disability
discrimination in the provision of state services or programs. This assessment is
easy here: the alleged Title II violation is the Board’s decision to suspend and
later revoke Guttman’s medical license. The parties have stipulated that Guttman
stated a claim under Title II.
-18-
2. Step Two: Fourteenth Amendment Claims
The second step requires us to assess the asserted Fourteenth Amendment
claims. Guttman alleges both procedural due process and equal protection
violations. If these claims allege actual constitutional violations, then New
Mexico cannot raise a sovereign immunity defense because “insofar as Title II
creates a private cause of action for damages against the States for conduct that
actually violates the Fourteenth Amendment, Title II validly abrogates state
sovereign immunity.” Georgia, 546 U.S. at 159. If, however, the Board’s actions
did not violate the Fourteenth Amendment, then Guttman merely alleges
violations of Title II’s prohibitions against disability discrimination, and we then
must proceed to the final Georgia step to determine if Congress validly abrogated
New Mexico’s sovereign immunity.
Guttman raises three possible claims grounded in the Fourteenth
Amendment: (1) a procedural due process claim based on the state’s failure to
provide a predeprivation hearing; (2) a procedural due process claim based on
procedural defects under New Mexico law; and (3) an equal protection claim
based on the state’s decision to treat Guttman differently than other licensed
professionals.
-19-
a. Procedural Due Process: Lack of a Deprivation Hearing
Guttman’s first Fourteenth Amendment claim is that the Board violated his
due process rights by not providing him a hearing before suspending his medical
license.
“To assess whether an individual was denied procedural due process, courts
must engage in a two-step inquiry: (1) did the individual possess a protected
interest such that the due process protections were applicable; and, if so, then (2)
was the individual afforded an appropriate level of process.” Hatfield v. Bd. of
Cnty. Comm’rs, 52 F.3d 858, 862 (10th Cir. 1995) (quotations omitted). In light
of Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1150 (10th
Cir. 2007), New Mexico does not contest the district court’s finding that Guttman
had a protected property interest in his medical license. The parties disagree,
however, whether Guttman received an appropriate level of process.
Ordinarily, “one who has a protected property interest is entitled to some
sort of hearing before the government acts to impair that interest, although the
hearing need not necessarily provide all, or even most, of the protections afforded
by a trial.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1220 (10th Cir.
2006) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). “[D]ue process is
flexible and calls for such procedural protections as the particular situation
demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The Supreme Court
has repeatedly held, “where a State must act quickly, or where it would be
-20-
impractical to provide predeprivation process, postdeprivation process satisfies
the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924,
930 (1997). Furthermore, “[a]n important government interest, accompanied by a
substantial assurance that the deprivation is not baseless or unwarranted, may in
limited cases demanding prompt action justify postponing the opportunity to be
heard until after the initial deprivation.” Id. at 930–31.
“In matters of public health and safety, the Supreme Court has long
recognized that the government must act quickly. Quick action may turn out to be
wrongful action, but due process requires only a postdeprivation opportunity to
establish the error.” Camuglia, 448 F.3d at 1220 (citing North American Cold
Storage Co. v. City of Chicago, 211 U.S. 306, 315 (1908)).
The discovery that a physician constitutes an imminent danger to public
safety is precisely the kind of circumstance where the government must act
quickly. Here, the Board suspended Guttman’s license after finding “clear and
convincing evidence that [his] continuation in practice would constitute an
imminent danger to public safety.” R. at 303. A few months later, the Board
conducted a three-day administrative hearing, in which Guttman participated via
counsel.
Because (1) the deprivation was supported by the important government
interest of protecting the public, (2) clear and convincing evidence provided
substantial assurance that the deprivation was not unwarranted, and (3) Guttman
-21-
was provided with adequate postdeprivation process, the Board’s failure to
provide Guttman a predeprivation hearing did not violate the Due Process Clause.
As a result, New Mexico is not prevented from raising a sovereign immunity
defense on this basis.
b. Procedural Due Process: Defects Under State Law
Guttman next contends the Board lacked jurisdiction over his license
because it failed to follow procedural requirements under state law, thereby
voiding its decision. He identifies the following deficiencies that allegedly
violated state law or governing procedural guidelines: (1) the medical license of
one IPC member had expired; (2) the IPC held a second meeting outside of the
two-week period from the time its members were appointed; (3) the IPC asked
questions of the Board and the Board responded; (4) Parsons served as a hearing
officer, despite having personal knowledge of Guttman and material facts; and (5)
the IPC and Board relied on information dating back more than two years.
Guttman relies on Lopez v. New Mexico Board of Medical Examiners, 754 P.2d
522, 524 (N.M. 1988), wherein the New Mexico Supreme Court held that
violations of the 90-day time limit in rendering a decision under the Uniform
Licensing Act, NMSA 1978, § 61-1-13— statute not at issue in this case—was
jurisdictional.
There are two major flaws with Guttman’s argument. First, as the district
court recognized, “although the contours of a constitutional right can be defined
-22-
by state law, the question of whether a state has afforded sufficient process to
protect a constitutional right is not a question of state law.” R. at 359 (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540–41 (1985)). Therefore,
alleged state law deficiencies, even if we accept them as true, do not signify an
unconstitutional denial of process. See Hicks v. City of Watonga, 942 F.2d 737,
746 n.4 (10th Cir. 1991) (“A failure to comply with state or local procedural
requirements does not necessarily constitute a denial of [federal] due process; the
alleged violation must result in a procedure which itself falls short of standards
derived from the Due Process Clause.” (citation omitted)).
Second, not every purported procedural defect forecloses jurisdiction under
New Mexico law. In Lopez, 754 P.2d at 524, the particular defect was the failure
to comply with a state law requiring the Board to render its decision within 90
days of its hearing. That type of deficiency is not at issue in this case.
Furthermore, the Board in Lopez delayed nearly one and one-half years in
rendering a decision—circumstances suggesting a more severe violation of state
process than what Guttman alleges. Id. Guttman fails to identify any New
Mexico case law finding procedural defects of the kind alleged here to be
jurisdictional.
More importantly, when examined solely from the perspective of federal
law, the alleged deficiencies do not rise to level of a denial of process. Guttman’s
only potentially meritorious claim is that, as an adjudicatory officer, Parsons was
-23-
biased through his personal knowledge of Guttman. But we have held that “a
substantial showing of personal bias is required to disqualify a hearing officer or
tribunal . . . .” Corstvet v. Boger, 757 F.2d 223, 229 (10th Cir. 1985).
Furthermore, a person claiming bias “must overcome a presumption of honesty
and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35,
47 (1975).
Guttman has not met this burden. Parsons’s prior knowledge of Guttman’s
disability—gained through Guttman’s quarterly visits before the Board between
1993 and 1995, when he practiced under a stipulated license—does not violate
federal due process. “Mere familiarity with the facts of a case gained by an
agency in the performance of its statutory role does not . . . disqualify a
decisionmaker” or demonstrate actual bias. Hortonville Joint Sch. Dist. No. 1 v.
Hortonville Educ. Ass’n, 426 U.S. 482, 493 (1976). Guttman does not allege any
other facts that make a substantial showing of personal bias.
In summary, the alleged violations of New Mexico law, standing alone, do
not indicate a denial of procedural due process.
c. Equal Protection Claims
Finally, Guttman alleges the Board violated his equal protection rights by
treating him differently because of his disability. He claims the Board handled
the complaints against him differently than similarly situated physicians who
came before the Board for disciplinary purposes.
-24-
The district court dismissed Guttman’s equal protection claim after
concluding “a legitimate public safety concern—the protection of patients from a
mentally unstable physician—is an abundantly rational basis for treating Plaintiff
differently from other similarly situated physicians.” R. at 352–53. Although
Guttman references his equal protection rights at several points in his brief, he
fails to substantively challenge the district court’s holding that the Board did not
violate the Equal Protection Clause. Accordingly, Guttman “waived this issue
through [his] failure to adequately address it in [his] opening brief.” See Native
Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1292 n.1 (10th Cir.
2008).
In any event, we agree with the district court that the state had a rational
basis for treating Guttman differently from other physicians. “The Equal
Protection Clause of the Fourteenth Amendment commands that no State shall
‘deny to any person within its jurisdiction the equal protection of the laws,’ which
is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).
“The general rule is that legislation is presumed to be valid and will be sustained
if the classification drawn by the statute is rationally related to a legitimate state
interest.” Id. Although certain classifications—such as race or national
origin—are “subject to strict scrutiny and will be sustained only if they are
suitably tailored to serve a compelling state interest,” see id., the “States are not
-25-
required by the Fourteenth Amendment to make special accommodations for the
disabled, so long as their actions towards such individuals are rational.” Garrett,
531 U.S. at 367.
* * *
Because we find the Board did not commit an actual violation of the
Fourteenth Amendment, Guttman’s claims against New Mexico must rest solely
on alleged Title II violations. In his ADA claims, Guttman contends New Mexico
revoked his medical license on the basis of his mental disability without
complying with Title II’s prophylactic protections. Thus, we must proceed to the
final Georgia step to determine whether the purported abrogation of sovereign
immunity is valid.
3. Step Three: Sovereign Immunity Analysis
Under the Fourteenth Amendment, a state may be subject to a statutory suit
under Title II of the ADA, even if there is no allegation of an actual Fourteenth
Amendment violation. See Lane, 541 U.S. at 523. This is because, as the
Supreme Court has explained, the scope of Congress’s power to enact remedial
legislation under § 5 of the Fourteenth Amendment is broad. “Congress’ power
‘to enforce’ the [Fourteenth] Amendment includes the authority both to remedy
and to deter violation of rights guaranteed thereunder by prohibiting a somewhat
broader swath of conduct” than that which the Amendment itself proscribes.
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 (2000). More importantly,
-26-
“[l]egislation which deters or remedies constitutional violations can fall within
the sweep of Congress’ enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional and intrudes into legislative spheres
of autonomy previously reserved to the States.” City of Boerne, 521 U.S. at 518
(quotation omitted).
In line with these principles, the Supreme Court has held Congress may
abrogate state sovereign immunity if Congress (1) unequivocally indicates its
intent to abrogate state sovereign immunity, and (2) acts pursuant to a valid grant
of constitutional authority under § 5. Garrett, 531 U.S. at 363. Here, there is no
question Congress intended Title II to abrogate state sovereign immunity. The
ADA specifically provides: “A state shall not be immune under the eleventh
amendment to the Constitution of the United States from an action in Federal or
State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C.
§ 12202.
Thus, the remaining question is whether Congress’s intent to abrogate state
sovereign immunity is a valid exercise of its enforcement power under § 5. To
arrive at an answer, City of Boerne requires us to consider (1) the nature of the
constitutional right at issue; (2) the extent to which Congress’s remedial statute
was passed in response to a documented history of relevant constitutional
violations; and (3) whether the congressional statute is “congruent and
proportional” to the specific class of violations at issue, given the nature of the
-27-
relevant constitutional right and the identified history of violations. 521 U.S. at
529–36; see also Lane, 541 U.S. at 522, 529–30.
Before proceeding, we emphasize that this is an as-applied challenge. The
Supreme Court has instructed us to assess Eleventh Amendment abrogation on a
case-by-case basis—“[w]ith respect to the particular [governmental] services at
issue in [the] case.” Id. at 527 (considering the specific history of discrimination
in the area of access to the courts); see also Garrett, 531 U.S. at 365 (the “as
applied” test requires “identify[ing] with some precision the scope of the
constitutional right at issue”). This case-by-case approach is especially important
in the Title II context, because Title II “reaches a wide array of official conduct in
an effort to enforce an equally wide array of constitutional guarantees.” Lane,
541 U.S. at 530. Accordingly, in Lane, see id. at 527, the Court did not consider
Title II, “with its wide variety of applications, as an undifferentiated whole”;
rather, it considered the Title II remedy as it applied specifically to discrimination
involving the fundamental right of access to the courts. The Court underscored
the as-applied focus in Georgia, 546 U.S. at 159, where it directed lower courts to
consider each state sovereign immunity case on a “claim-by-claim basis.”
Given this framework, we approach each of the three prongs of the
abrogation inquiry with respect to the specific right and class of violations at
issue. Although some appellate courts read Lane to conclusively establish that
Title II, taken generally, survives the first two prongs of the inquiry (which
-28-
address the scope of the right and the historical record) in all cases, see, e.g.,
Klingler v. Director, Dep’t of Revenue, State of Mo., 455 F.3d 888, 896 (8th Cir.
2006); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
487 (4th Cir. 2005); Ass’n for Disabled Ams., Inc. v. Florida Int’l Univ., 405 F.3d
954, 958 (11th Cir. 2005); McCarthy ex rel. Travis. v. Hawkins, 381 F.3d 407,
423 (5th Cir. 2004), we agree with the First Circuit that the correct approach, as
dictated by the Court’s approach in Lane, is to analyze all three prongs with
regard to the particular right and class of state action at issue, Toledo v. Sanchez,
454 F.3d 24, 35 (1st Cir. 2006).
This approach is consistent with Lane, 541 U.S. at 527, where the Court,
for each of the three prongs of the City of Boerne inquiry, expressly grounded its
analysis in the specific right of access to the courts. For example, in analyzing
the first prong, the Court highlighted its precedents establishing the right of
access to the courts as a fundamental right. Id. at 522–23. And in analyzing the
second prong, the Court reviewed Congress’s findings of unconstitutional
discrimination “[w]ith respect to the particular services at issue in [the] case.” Id.
at 527. Because we must undertake the same analysis, we find that Lane does not
conclusively settle the first two prongs of the City of Boerne test for all classes of
services. Indeed, there is no doubt the particular services at issue here are
categorically different from the particular services at issue in Lane. With this in
mind, we apply the three-part analysis.
-29-
a. Scope of the Constitutional Right
Under the first element of the City of Boerne analysis, we determine the
nature of the constitutional right at issue and the related class of state action. In
Lane, 541 U.S. at 522–23, the Supreme Court concluded Congress enacted Title II
to “enforce the Fourteenth Amendment’s prohibition on irrational disability
discrimination,” and also to “enforce a variety of other basic constitutional
guarantees, . . . infringements of which are subject to more searching judicial
review.” The Court specifically identified the right at issue as the fundamental
right of access to the courts. Id. This right can be infringed only if state action
survives heightened judicial scrutiny.
Here, the right at issue is a disabled individual’s right to practice in his
chosen profession; this right, unlike the one at issue in Lane, does not invoke
heightened scrutiny. Indeed, although “the liberty component of the Fourteenth
Amendment’s Due Process Clause includes some generalized due process right to
choose one’s field of private employment,” this right is “subject to reasonable
government regulation.” Conn v. Gabbert, 526 U.S. 286, 291–92 (1999); see also
Collins v. Texas, 223 U.S. 288 (1912) (the right to practice medicine is not a
fundamental right). The same is true with disability discrimination: a state’s
decision to treat the disabled differently than others “cannot run afoul of the
Equal Protection Clause if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose.” Garrett, 531 U.S. at
-30-
366–67 (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)); City of Cleburne, 473
U.S. at 442 (persons with disabilities are not a suspect class).
b. Historical Record of Constitutional Violations
We next consider the extent to which Title II was “responsive to, or
designed to prevent, unconstitutional behavior.” City of Boerne, 521 U.S. at 532.
With respect to Title II generally, Lane settles the issue. In Lane, 541 U.S. at
524, the Court found that Congress “enacted Title II against a backdrop of
pervasive unequal treatment in the administration of state services and programs,”
and that it specifically considered evidence of discrimination in areas such as
education, access to the courts, transportation, communications, health care, and
other public services. The Court noted the “sheer volume of evidence
demonstrating the nature and extent of unconstitutional discrimination against
persons with disabilities in the provision of public services,” and concluded that it
is “clear beyond peradventure that inadequate provision of public services and
access to public facilities was an appropriate subject for prophylactic legislation.”
Id. at 528, 529. In light of this holding, we recognize that Title II may validly
abrogate state sovereign immunity in some instances.
Because this is an as-applied challenge, however, we also must follow the
Court’s lead in Lane and consider the congressional record speaking to the history
of unconstitutional discrimination against the disabled with regard to their right to
practice in their chosen profession. 541 U.S. at 527 (considering Congress’s
-31-
historical findings “[w]ith respect to the particular services at issue in [the]
case”). The problem for Guttman is that Congress did not identify a history of
irrational discrimination in professional licensing when enacting Title II. See,
e.g., 42 U.S.C. § 12101; S. Rep. No. 101-116 (1989); H.R. Rep. No. 101-485 pts.
1, 2, 3 & 4 (1990), reprinted in 1990 U.S.C.C.A.N. 267; H.R. Conf. Rep. 101-558
(1990); H.R. Conf. Rep. No. 101-596 (1990), reprinted in 1990 U.S.C.C.A.N.
565; see also Roe v. Johnson, 334 F. Supp. 2d 415, 422 (S.D.N.Y. 2004).
Based on our survey of the record, Congress has never specified a
longstanding pattern of disability discrimination in professional licensing, much
less any irrational discrimination that rose to the level of a constitutional
violation. Cf. Garrett, 531 U.S. at 370 (with respect to Title I of the ADA,
finding there were insufficient congressional findings to demonstrate a pattern of
state discrimination in the employment of persons with disabilities). Guttman and
the United States do point to isolated examples of discrimination in licensing
teachers, see, e.g., H.R. Rep. No. 485, Pt. 1, 101st Cong., 2d Sess. 29 (1990); 2
Staff of the House Comm. on Educ. & Labor, 101st Cong., 2d Sess., Legislative
History of Pub. L. No. 101-336: The Americans with Disabilities Act 1040, 1611
n.9 (Comm. Print 1990), but Appellants do not identify anywhere that Congress
addressed unconstitutional professional licensing directly, or at any length.
For these reasons, Guttman’s case is categorically different than Lane.
Whereas in Lane, Congress documented a lengthy history of discrimination in the
-32-
access to judicial services and facilities, here there is no such specific history.
The historical testimony supporting abrogation is far removed from the
discrimination in the administration of public programs and services—namely, the
repeated infringement of fundamental rights and denial of access to public
facilities—that Lane found in Title II’s congressional record.
Therefore, we find the history of unconstitutional discrimination against the
disabled regarding their right to practice in their chosen profession, as reflected in
the congressional record, is minimal. This alone suggests Title II likely does not
validly abrogate sovereign immunity in the area of professional licensing. See
Florida Prepaid Postsecondary Education Expense Board v. College Savings
Bank, 527 U.S. 627, 646 (1999) (explaining that although “lack of support in the
legislative record is not determinative,” the “expansive” remedial measure at
issue did not validly abrogate state sovereign immunity because the record “at
best offer[ed] scant support for Congress’ conclusion that [states were violating
the constitution].”).
c. Congruence and Proportionality
In any event, even “were it possible to squeeze out of [Appellants’]
examples a pattern of unconstitutional discrimination by the States, the rights and
remedies created by [Title II] against the States would raise . . . congruence and
proportionality [concerns].” Garrett, 531 U.S. at 372. In this third prong, the
question is whether Title II is congruent and proportional to the specific class of
-33-
violations at issue, given the nature of the relevant constitutional right and the
identified history of violations.
The congruence and proportionality inquiry is a targeted one. We have
already identified the scope of the constitutional right at issue: the right of the
disabled to practice in their chosen profession. We also must identify the relevant
class of state action at issue in this case. The parties disagree on this point. New
Mexico contends, and the district court agreed, that Congress’s enforcement
power should be considered only in relation to Congress’s authority to remedy
discrimination in the area of “professional licensing.” In contrast, Guttman and
the United States contend we should address Title II as it applies to the expansive
category of “public licensing,” which implicates a broader array of state action,
including the issuance of fishing and driving licenses.
We agree with New Mexico that, because the right at issue is the right to
practice in a chosen profession, “professional licensing” is the correct category of
state action in this case. This narrower focus comports with the approach in
Lane, 541 U.S. at 522. The plaintiffs in Lane could not enter a courthouse
because the state did not accommodate their physical disabilities. Id. In
determining whether Title II validly abrogated sovereign immunity, the Lane
Court did not consider all disability discrimination or even all state-owned
buildings; instead, it zeroed in on buildings that contain judicial functions. See
id. at 530–31 (“[T]he question presented in this case is not whether Congress can
-34-
validly subject the States . . . [to] money damages for failing to provide
reasonable access to hockey rinks, or even to voting booths, but whether Congress
had the power under § 5 to enforce the constitutional right of access to the
courts.”). Thus, Lane identified a narrow category of state action that focused the
analysis on a specific individual right—the right of access to the courts.
The logic behind Lane suggests we focus on professional licensing as the
proper category of state action. By tethering our analysis to state professional
licensing decisions and an individual’s right to practice in a given profession, we
may focus our analysis on a limited set of governmental rights, interests, and
historical violations. If we were to instead focus on the general category of
public licensing, we would need to address a heterogeneous set of state
action—everything from regulating the fundamental right of marriage to the
decidedly non-fundamental rights to fish or cut hair—so as to distract the inquiry
from Congress’s § 5 enforcement authority, which is proportional to the
importance of the right asserted. 3 Recognizing this, the district court correctly
3
The United States contends the range of governmental conduct implicit in
public licensing is narrower than the range considered in Lane, but it does not
explain how. In support of adopting this category, the government cites Toledo,
454 F.3d at 24, in which the First Circuit focused its analysis on “government
conduct at all levels of public education,” as opposed to only higher education.
But even this category is far narrower than public licensing; university and high
school teachers share much more in common than licensed brides and licensed
doctors. Furthermore, as noted below, the category chosen in Toledo is supported
by a well-identified history of disability discrimination that is common to all
levels of public education. See id. at 36–39.
-35-
concluded: “Lumping these licensing categories together eliminates the case-
specific balancing that is necessary to resolve the question before the Court.” R.
at 365–66.
Thus, we ask only whether Title II is congruent and proportional in the
context of the class of cases implicating disability discrimination in professional
licensing. See Lane, 541 U.S. at 530.
Our survey of Supreme Court cases fails to reveal precisely what it means
for legislation to be congruent and proportional. In its first set of cases assessing
congruence and proportionality, the Supreme Court struck down four separate
pieces of § 5 enforcement legislation. First, in City of Boerne v. Flores, 521 U.S.
at 535–36, the Court deemed the Religious Freedom Restoration Act (RFRA)
unconstitutional. The Court held that RFRA—which prohibits the Government
from substantially burdening a person’s exercise of religion even if the burden
results from a rule of general applicability—was not a proper means to remedy
the substantive constitutional violations it aimed to correct. Id. at 519; 42 U.S.C.
§ 2000bb-1. The Court held, “Legislation which alters the meaning of the Free
Exercise Clause cannot be said to be enforcing the Clause. Congress does not
enforce a constitutional right by changing what the right is.” Boerne, 521 U.S. at
508. In short, Congress impermissibly altered a substantive constitutional right,
whereas § 5 grants Congress only the limited power to craft remedies for existing
guarantees.
-36-
Then, in Florida Prepaid, 527 U.S. at 647, the Court found that the Patent
and Plant Variety Protection Remedy Clarification Act did not validly abrogate
state sovereign immunity. In support of its holding, the Court pointed to the
insufficient historical record of constitutional violations in the realm of state
patent infringement and the overly broad sweep of the challenged legislation. Id.
Similarly, in Kimel v. Florida Board of Regents, 528 U.S. 62, 81 (2000), the
Court held that the Age Discrimination in Employment Act, as applied to states,
exceeded Congress’s authority under § 5. The Court reasoned Congress had
exceeded its enforcement power by failing to identify “any pattern of age
discrimination by the States, much less any discrimination whatsoever that rose to
the level of constitutional violation.” Id. at 89. And in Board of Trustees of the
University of Alabama v. Garrett, 531 U.S. at 374, the Court found the provision
of Title I of the ADA that permitted individuals to sue states for money damages
exceeded Congress’s § 5 remedial authority. The Court was persuaded by the
striking contrast between the sparse legislative record supporting Title I and
Congress’s substantial historical findings with regard to the Voting Rights Act.
Id. at 369. The Court found the “half-dozen examples” of state-sponsored
disability discrimination fell “far short of even suggesting the pattern of
unconstitutional discrimination on which § 5 legislation must be based.” Id. at
369, 370.
Then, in two more-recent cases, the Court found Congress validly
-37-
abrogated state sovereign immunity. First, in Nevada Department of Human
Resources v. Hibbs, 538 U.S. at 724, the Court upheld the constitutionality of the
family-care provision of the Family and Medical Leave Act (FMLA) as applied to
the states. The Court did so, in large part, because, with the FMLA—unlike with
the statutes at issue in Florida Prepaid, Kimel, and Garrett—Congress sought to
prevent discrimination against a protected class of citizens. Id. at 730.
The Court applied the same logic in Tennessee v. Lane, 541 U.S. at 533–34,
where it upheld Title II of the ADA as applied to claims by the disabled alleging
they had been denied access to the courts on account of their disability. In Lane,
the Court addressed the right of access to the courts—a fundamental right that
may not be encroached upon unless the infringing provision survives strict
scrutiny. The Court noted that the “unequal treatment of disabled persons in the
administration of judicial services has a long history, and has persisted despite
several legislative efforts to remedy the problem of disability discrimination.” Id.
at 531. Because both Hibbs and Lane involved rights implicating heightened
scrutiny, “it was easier for Congress to show a pattern of state constitutional
violations than in Garrett or Kimel, both of which concerned legislation that
targeted classifications subject to rational-basis review.” Id. at 529.
Unfortunately, these cases shed limited light on what it means for a
statutory remedy to be congruent and proportional to a class of constitutional
violations. Nowhere has the Court set forth an easily administrable test for
-38-
determining proportionality or identified the factors that a court should consider
in assessing congruence. Nevertheless, there is a lesson we can glean from the
Court’s precedents. Whether a remedial provision is an appropriate response (i.e.,
congruent and proportional) to a purported class of constitutional violations
depends on how well-tailored the congressional remedy is to the nature of the
right and the history of violations.
In undertaking this analysis, it is plain we must give Congress a wider berth
where, as in Hibbs and Lane, the right it seeks to vindicate through a statutory
remedy is subject to heightened scrutiny. When fundamental rights (like access
to the courts) or suspect classes (such as racial or ethnic minorities) are
implicated, Congress’s historical findings need not be as exhaustive, and the
congruence and proportionality of the remedial measure need not be as precise.
Conversely, when the relevant rights are less constitutionally significant,
Congress has substantially less authority. As the Supreme Court has instructed,
“[w]hile § 5 authorizes Congress to enact reasonably prophylactic remedial
legislation, the appropriateness of the remedy depends on the gravity of the harm
it seeks to prevent.” Lane, 541 U.S. at 523. “Difficult and intractable problems,”
the Court explained, “often require powerful remedies,” but “[s]trong measures
appropriate to address one harm may be an unwarranted response to another,
lesser one.” Id. at 524 (quotations omitted). Therefore, to remedy infringement
of non-fundamental rights, Congress must craft a comprehensive legislative
-39-
record and draft focused statutes. These principles are reflected in Garrett and
Kimel, where the Supreme Court struck down federal provisions where the alleged
state violations—which involved the rights to be free from disability and age
discrimination in employment—were subject only to rational basis review.
In line with these principles, there is a trend of courts holding that, absent
the need to vindicate a fundamental right or protect a suspect class, Congress may
not abrogate state sovereign immunity. Buchanan v. Maine, 377 F. Supp. 2d 276,
283 (D. Me. 2005) (“Absent a fundamental right, based on the law as it has been
developed to date, Title II is not a proportional or congruent response to the
recognized history of disability discrimination for mental health services.”); see
also Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 793 (9th Cir. 2004)
(O’Scannlain, J., concurring) (“It is therefore open to question whether Title II
validly abrogates state sovereign immunity where no . . . fundamental right is at
issue.”); see also Press v. State Univ. of N.Y. at Stony Brook, 388 F. Supp. 2d
127, 135 (E.D.N.Y. 2005); Roe, 334 F. Supp. 2d at 421 n.9 (“Given the Supreme
Court’s decision in Lane, it would appear that there is no longer any basis to find
the existence of a cause of action under Title II where no other fundamental right
is implicated and the sole justification is the defendant’s level of scienter.”
(citation omitted)); Johnson v. S. Conn. State Univ., No. 02-Civ-2065, 2004 WL
2377225, at *4 (D. Conn. Sept. 30, 2004) (“[I]n the wake of Lane, it appears that
a private suit for money damages under Title II of the ADA may be maintained
-40-
against a state only if the plaintiff can establish that the Title II violation involved
a fundamental right.”). The bent of these cases has led at least one commentator
to conclude that, when “the plaintiff is not alleging a constitutional violation and
the case does not involve a type of discrimination or a right receiving heightened
scrutiny, the state can be sued only if Congress found pervasive unconstitutional
state conduct.” Erwin Chemerinsky, Federal Jurisdiction 477 (5th ed.). 4
In addition to these general principles, the Supreme Court has suggested the
congruence and proportionality of a remedial statute depends, to some degree, on
how costly it is for a state to comply with the statute. For example, in Garrett,
531 U.S. at 372, the Court concluded, under the rational basis test, that “it would
be entirely rational (and therefore constitutional) for a state employer to conserve
scarce financial resources by hiring employees who are able to use existing
facilities.” Similarly, in City of Boerne, the Court found that “[t]he substantial
4
We pause to note one exception to this trend: discrimination against
students in public education. Several circuit courts have found Title II validly
abrogates state sovereign immunity in this context, even though education does
not involve a fundamental right. See, e.g., Toledo, 454 F.3d at 39–40;
Constantine, 411 F.3d at 490; Assoc. for Disabled Ams., Inc., 405 F.3d at 959. In
reaching this conclusion, these courts have been persuaded by (1) the persistent
pattern of exclusion and irrational treatment of disabled students in public
education, (2) the gravity of the harm worked by such discrimination, and (3) the
limited nature of the compliance costs imposed on states. See Toledo, 454 at
39–40. While the Supreme Court has yet to test the logic of these cases, the cases
suggest the exceptionally well-documented history of irrational discrimination in
schools is sufficient to compensate for the right’s limited value in the
constitutional scheme. See id. at 36–39. Discrimination against students in
public education is an exception that proves the rule.
-41-
costs RFRA exacts, both in practical terms of imposing a heavy litigation burden
on the states and in terms of curtailing their traditional regulatory power, far
exceed any pattern or practice of unconstitutional conduct under the Free Exercise
Clause.” And in Lane, 541 U.S. at 533, the Court was cognizant of the state’s
cost considerations but nevertheless held, given the fundamental right at issue,
“ordinary considerations of cost and convenience alone cannot justify a State’s
failure to provide individuals with a meaningful right of access to the courts.”
Costs are especially relevant when the state’s actions are subject only to rational
basis review, given that conserving scarce resources may be a rational basis for
state action. When no heightened scrutiny is implicated, a statute that forbids a
state from implementing reasonable, cost-effective processes is unlikely to be
congruent and proportional.
Here, the area of professional licensing does not implicate a traditional
category of fundamental rights. As the district court correctly noted, professional
licensing decisions are subject only to rational basis review, and persons with
disabilities do not compose a suspect class. Accordingly, the Constitution affords
New Mexico significant discretion in the realm of professional licensing. The
state’s licensing practices and regulations—which, in this case, were designed to
prevent harm to patients of medical professionals—need only be rationally related
-42-
to a legitimate interest of the State. Thus, the nature of the right leans against
abrogation.
The lack of a historical record demonstrating discrimination in the area of
professional licensing leans against abrogation as well. In City of Boerne, the
Supreme Court explained that § 5 legislation “must be judged with reference to
the historical experience . . . it reflects.” 521 U.S. at 525 (quotation omitted); see
also Florida Prepaid, 527 U.S. at 640 (using the same language); Lane, 541 U.S.
at 531 (considering Congress’s historical findings in connection with the
congruence-and-proportionality prong of the City of Boerne test). At best, the
Appellants’ isolated examples of discrimination in this area are no more
substantial than the “half-dozen examples” of state-sponsored disability
discrimination identified in Garrett, 531 U.S. at 369, which the Court held fell
“far short of even suggesting the pattern of unconstitutional discrimination on
which § 5 legislation must be based,” id. at 370. Simply put, nothing in the
congressional record suggests Title II was a response to pervasive discrimination
in the area of professional licensing.
Moreover, we find the Title II remedy, as applied to professional licensing,
“far exceeds what is constitutionally required in that it makes unlawful a range of
alternate responses [to discrimination] that would be reasonable . . . .” Garrett,
531 U.S. at 372. Although Title II permits some flexibility by requiring only
reasonable efforts at accommodation, the statute’s sweep is exceptionally broad.
-43-
The abrogation of sovereign immunity here would require states to justify a
significant range of rational, everyday licensing decisions that would otherwise be
constitutional. For example, despite the fact that Title II does not require a state
to license a professional who poses “a significant risk to the health or safety of
others that cannot be eliminated by a modification of policies, practices, or
procedures, or by the provision of auxiliary aids or services,” 42 U.S.C.
§ 12182(b)(3), it nevertheless places a substantial burden on the state to
demonstrate the risk posed by a professional whose disability cannot be
eliminated or mitigated.
Finally, we emphasize the state’s strong interest in crafting reasonable,
cost-effective medical licensing procedures. In contrast to many other public
services, states have strong, historical interests in medical licensing, which
touches on the core governmental function of promoting and protecting the
general public welfare. See Dent v. West Virginia, 129 U.S. 114, 122 (1889); see
also Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1164 (10th Cir.
1999) (“[T]here is no question that the licensing and discipline of physicians
involves important state interests.”); Brinkley v. Hassig, 83 F.2d 351, 354 (10th
Cir. 1936) (“The power of the state to protect its citizens against imposition by
those purporting to practice the learned professions has been sustained without
dissent for many generations.”).
-44-
Ultimately, we are presented with a right that is not fundamental, very little
evidence of a widespread pattern of irrational state discrimination in professional
licensing, and a wide-reaching statute that inhibits a state’s ability to safely and
efficiently make professional licensing decisions. Title II prohibits a significant
range of state action in this realm that would easily survive rational basis review.
Accordingly, in this instance, Title II is “so out of proportion to a supposed
remedial or preventive object that it cannot be understood as responsive to, or
designed to prevent, unconstitutional behavior.” City of Boerne, 521 U.S. at 532.
We conclude Title II does not validly abrogate New Mexico’s sovereign
immunity in the context of professional licensing. Therefore, the district court
properly dismissed Guttman’s Title II claims against New Mexico.
III. Claims Against the Individual Defendants
We now turn to Guttman’s claims against Khalsa and Parsons. No doubt
due to this case’s tangled procedural history, the parties disagree whether any
claims remain. Guttman first contends the district court erred in dismissing his
stigma-plus claim on the basis of qualified immunity. But as we explain, at the
time New Mexico revoked Guttman’s medical license, it was not clearly
established that an employment-related stigma-plus claim could be brought
outside the context of a termination decision.
Guttman also asserts that, because prior decisions have addressed only his
claims for money damages, he still has live claims for prospective injunctive
-45-
relief. While the district court believed this claim had been resolved at an earlier
stage in the litigation, we cannot conclude from our review of the record that the
claim was in fact disposed of below. Consequently, we remand to the district
court for further consideration of this claim.
A. Stigma-Plus Claim
Guttman alleges Khalsa and Parsons knowingly published false and
stigmatizing information about him in the National Practitioner Data Bank,
foreclosing his ability to practice medicine. After finding the individual
defendants are protected by qualified immunity, the district court dismissed this
claim. We agree.
“[G]overnment officials performing discretionary functions[] generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established [federal] statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). When a defendant asserts qualified immunity, the burden shifts to the
plaintiff, who must demonstrate on the facts alleged that (1) the defendant
violated his constitutional or statutory rights, and (2) the right was clearly
established at the time of the allegedly unlawful activity. Pearson v. Callahan,
555 U.S. 223, 231 (2009).
There are two elements of a stigma-plus claim: (1) governmental
defamation and (2) an alteration in legal status. Brown v. Montoya, 662 F.3d
-46-
1152, 1167 (10th Cir.) (citing Paul v. Davis, 424 U.S. 693 (1976)). When these
two elements are present, the government may have “violate[d] a liberty interest
that triggers a procedural due process protection.” Id. The stigma-plus
authorities emphasize that “defamation, standing alone, [is] not sufficient to
establish a claim for deprivation of a liberty interest.” Renaud v. Wyoming Dep’t
of Family Servs., 203 F.3d 723, 726 (10th Cir. 2000). There must be a change of
legal status as well.
Therefore, in the employment context, “the defamation had to occur in the
course of the termination of employment.” Paul, 424 U.S. at 710 (emphasis
added). An employee has a “liberty interest in his good name and reputation as it
affects his protected property interest in continued employment.” Workman v.
Jordan, 32 F.3d 475, 480 (10th Cir. 1994). But this liberty interest is only
infringed by defamatory statements if a four-factor test is satisfied: (1) the
statements must impugn the employee’s good name, reputation, honor, or
integrity; (2) the statements must be false; (3) the statements must occur in the
course of terminating the employee or must foreclose other employment
opportunities; and (4) the statements must be published. Workman, 32 F.3d at
481; see also Darr v. Town of Telluride, 495 F.3d 1243, 1255 (10th Cir. 2007).
Guttman contends New Mexico’s allegedly defamatory report injured his
professional reputation, foreclosing employment opportunities in the field of
medicine. This claim fails, however, because at the time the allegedly defamatory
-47-
report was published, we had interpreted the stigma-plus doctrine, as applied in
the area of employment, to be limited to claims of defamation occurring in the
course of employment termination:
At first blush, it appears that [the third factor] can be met either
by statements made in the course of terminating an employee or,
in the alternative, by any other statements that might foreclose
other employment opportunities. Workman, [32 F.3d at 475,]
which was decided on other grounds, did not examine this
question. . . . While the language of Workman may be
susceptible to another reading, we conclude that the Workman
court did not intend to create a test under which a liberty interest
might be infringed by any defamatory statement that might
foreclose future employment opportunities.
Renaud, 203 F.3d at 728 n.1 (relying on Paul, 424 U.S. at 710). Shortly after
Renaud was decided, the Supreme Court confirmed our interpretation in Siegert v.
Gilley, 500 U.S. 226, 234 (1991), finding the former employee of a government
hospital could not bring a stigma-plus claim against an ex-supervisor. The Court
held that, because “[t]he alleged defamation was not uttered incident to the
termination of [his] employment by the hospital,” the plaintiff had failed to state a
claim for the denial of a constitutional right. Id.
These cases preclude Guttman’s claim here. Since the individual
defendants in this case did not employ Guttman in the first place, much less
defame him in the context of terminating his employment, their conduct did not
violate a clearly established right.
-48-
In short, the district court did not err in dismissing the stigma-plus claim
against Khalsa and Parsons.
B. Guttman’s Claim for Injunctive Relief
One final claim remains to be resolved: Guttman’s demand for injunctive
relief under Ex parte Young. To determine whether Guttman can proceed on his
Ex parte Young claim requires us to review again both the nature of the asserted
claim and the procedural history of this case.
1. Ex parte Young Doctrine
“In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court carved out an
exception to Eleventh Amendment immunity for suits against state officials
seeking to enjoin alleged ongoing violations of federal law.” Crowe & Dunlevy,
P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011). By proceeding on the
fiction that an action against a state official seeking only prospective injunctive
relief is not an action against the state itself, the Ex parte Young doctrine enables
“federal courts to vindicate federal rights and hold state officials responsible to
the supreme authority of the United States.” Id. (quoting Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 105 (1984)). To determine whether the Ex
Parte Young doctrine applies, “a court need only conduct a straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” Verizon Md. Inc. v. Pub.
-49-
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quotation marks omitted)
(alteration in the original).
An individual can bring an Ex parte Young claim against a state official in
federal court for an ADA or § 1983 violation. Roe No. 2 v. Ogden, 253 F.3d
1225, 1233 (10th Cir. 2001). In Garrett, 531 U.S. at 374 n.9, the Supreme Court
reaffirmed that an Ex parte Young ADA claim can proceed even if the state
defendants are protected by sovereign immunity. Although Garrett involved a
suit brought under Title I of the ADA, there is no relevant difference between
Title I and Title II as far as the availability of prospective injunctive relief is
concerned. See Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 913
(7th Cir. 2003).
In summary, neither a state official’s absolute immunity nor a state’s
sovereign immunity bars a plaintiff from bringing an Ex parte Young claim for a
violation of Title II of the ADA.
2. Guttman’s Ex parte Young Claim
Guttman initiated this action in 2003 by filing a pro se civil complaint
against New Mexico, Khalsa, and Parsons. The complaint contained two counts:
an ADA violation and a violation of procedural due process. The complaint did
not expressly request prospective relief or refer to the individual defendants in
their official capacities.
-50-
Shortly thereafter, the defendants filed a motion for dismissal or summary
judgment. Responding to this motion, Guttman stated he was “asking this Court,
under § 1983 and the ADA, to enjoin these Defendants in their individual and
official capacities from their prospective and ongoing violations of the ADA and
Dr. Guttman’s procedural due process rights.” Pl.’s Resp. to Defs.’ Mot. to
Dismiss or for Summ. J. at 16, Guttman I, 320 F. Supp. 2d 1164 (D.N.M. June 16,
2003) (No. Civ. 03-463 LCS) (Doc. No. 9). 5
When the defendants replied that the pro se complaint did not contain an Ex
parte Young claim, Guttman filed a surreply that argued “the contrary is true,”
because “seeking relief under the ADA includes prospective injunctive relief.”
Pl.’s Surreply to Defs.’ Reply to Defs.’ Mot. to Dismiss or For Sum. J. at 2,
Guttman I, 320 F. Supp. 2d 1164 (D.N.M. Aug. 8, 2003) (No. Civ. 03-463 LCS)
(Doc. No. 16). Guttman also noted that the district court must liberally construe
his complaint because it was filed pro se. Id. (citing Brown v. Zavaras, 63 F.3d
967, 972 (10th Cir. 1995)). As a result, Guttman argued, “[t]he factual
allegations stated by the Plaintiff in his Complaint are sufficient to raise a claim
under the ADA, seeking prospective injunctive relief under Ex parte Young.” Id.
5
We recognize some documents filed in the district court are not part of
the record on appeal. Nevertheless, we have authority to review them because we
may take judicial notice of public records, including district court filings. See
United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir. 2010) (taking judicial
notice of district court record that was not part of the record on appeal).
-51-
Although the district court granted defendants’ motion, Guttman I, 320 F.
Supp. 2d at 1164, the court also appeared to agree with Guttman’s construction of
his complaint, noting that “Plaintiff seeks prospective injunctive relief and
damages under the ADA.” Id. at 1168–69. Nonetheless, the district court granted
summary judgment to defendants on all Title II and § 1983 claims, based on two
alternative grounds: (1) the court lacked jurisdiction under Rooker-Feldman
doctrine, and (2) the defendants were protected by absolute immunity. Id. at
1171.
Guttman timely appealed. In addition to contesting the district court’s
Rooker-Feldman and immunity decisions, he argued that a claim for prospective
injunctive relief remained against individual state officials, as permitted by Ex
parte Young. We affirmed the district court’s application of Rooker-Feldman, but
the Supreme Court reversed and remanded our opinion in light of Exxon Mobil,
544 U.S. at 280. Guttman II, 401 F.3d at 1170, vacated and remanded, 546 U.S.
801 (2005).
With the case back before us on remand, we asked the parties to file
supplemental briefing. In his brief, Guttman argued, among other things, (1) his
complaint contained a claim for prospective injunctive relief, (2) Eleventh
Amendment immunity does not prohibit Ex parte Young claims, and (3) Garrett
recognized the Ex parte Young exception to sovereign immunity in the ADA
context. Aplt.’s Supplemental Br. Following Remand from the U.S. Supreme Ct.
-52-
at 16, Guttman III, 446 F.3d 1027 (10th Cir. Dec. 20, 2005) (No. 03-2244). The
brief’s conclusion reiterated that the defendants “possess no immunity against
[Guttman’s] claims for injunctive relief in their official capacity . . . .” Id. at 25.
Nonetheless, we decided Guttman III without mentioning or addressing
Guttman’s claim for prospective relief. Instead, our decision contained the
following conclusion and mandate:
We AFFIRM the district court’s determination that both
Parsons and Khalsa are protected by absolute immunity.
However, we REVERSE the district court’s determination that
New Mexico is protected against all suits under Title II of the
ADA by sovereign immunity and REMAND for hearings
consistent with this opinion.
Guttman III, 446 F.3d at 1036.
Back before the district court, Guttman filed an amended complaint, adding
the following claims: (1) an equal protection claim, (2) a First Amendment
retaliation claim, (3) a stigma-plus claim, and (4) a claim for injunctive relief
against the individual defendants in their official capacities.
Because Guttman III did not mention the Ex parte Young claim, but
nonetheless remanded the case to the district court “for hearings consistent with
this opinion,” the parties disagreed whether we affirmed the dismissal of that
claim. The defendants filed a motion to dismiss that argued Khalsa and Parsons
were immune from suit without specifically mentioning the claims for prospective
relief.
-53-
In response, Guttman “concede[d] that not only this Court, but the 10th
Circuit has determined that Khalsa and Parsons are immune from suit under Dr.
Guttman’s claims as reviewed.” Pl.’s Resp. to Defs.’ Mot. to Dismiss at 18,
Guttman v. Khalsa, No. Civ. 03-463-MCA-KBM (D.N.M. Aug. 14, 2006) (Doc.
No. 33). Nonetheless, he argued, “that in no way precludes Dr. Guttman’s claims
for prospective injunctive relief against the individuals in their official capacity.
The Ex parte Young exception . . . would apply to Dr. Guttman’s claims against
the individuals in their official capacity for injunctive relief under the ADA . . . .
The Eleventh Amendment does not bar such suits.” Id. at 18–19.
Granting in part defendants’ motion to dismiss, the district court rejected
Guttman’s Ex parte Young argument, holding that because both he and this court
had granted immunity to Khalsa and Parsons on the basis of absolute immunity,
they are not subject to suit under the ADA or § 1983.
Despite this ruling, Guttman continued to press his Ex parte Young claim.
At a motion hearing convened in response to his motion to reconsider, Guttman
argued that, “[as] established in U.S. Supreme Court precedent, although absolute
immunity and qualified immunity offer protection to officials from civil damages,
they do not preclude or protect against a claim for prospective injunctive relief
and the recovery of attorney’s fees for a successful plaintiff.” Pl.’s Resp. to Mot.
to Stay and Mem. in Supp. at 2, Guttman v. Khalsa, No. Civ. 03-463-MCA-KBM
(D.N.M. Mar. 14, 2007) (Doc. No. 63).
-54-
In June 2010, after separately considering Guttman’s ADA claim against
New Mexico, the district court turned to his claims against the individual
defendants. After reviewing the procedural history, the court made the following
finding:
In September 2003, the [District] Court issued a “final order,”
which stated that “[s]ummary judgment is hereby entered in favor
of Defendants G.T.S. Khalsa, Livingston Parsons and the State
of New Mexico on Plaintiff’s claims under 42 U.S.C. § 1983 . . .”
Guttman I, 320 F. Supp. 2d at 1171. The Tenth Circuit’s
Guttman III opinion affirmed the grant of immunity to the
Individual Defendants and did not address additional “official
capacity” liability for prospective relief—leaving this Court to
presume that the issue of prospective relief against Individual
Defendants was not raised before the Circuit.
R. at 382. [Mem. Op. & Order at 8, Guttman v. Khalsa, No. Civ. 03-463-MCA-
KBM (D.N.M. June 6, 2010) (Doc. No. 150) (emphasis added).] Based on the
silence of the appellate opinions on this issue, the court “conclude[d] that by
failing to appeal [the district court’s] repeated dismissal of the Individual
defendants, Plaintiff has waived any claim for prospective injunctive relief
against the Individual Defendants.” Id. at 9. This statement is belied by the fact
that Guttman did appeal the district court’s dismissal of the individual defendants,
both in their individual and official capacities.
In sum, our review of the procedural history leads to several conclusions.
First, it remains unclear whether the district court construed Guttman’s original
pro se complaint to include an Ex parte Young claim even though prospective
-55-
relief was not expressly requested. Second, despite the confusion, Guttman
appears to have advocated a claim for prospective injunctive relief throughout the
litigation. If that is the case, then the district court erred in Guttman I, 320 F.
Supp. 2d at 1171, when it held that the individual defendants’ absolute immunity
barred the Ex parte Young claim. See Verizon, 535 U.S. at 645. Finally, although
Guttman raised Ex parte Young claims on appeal, our opinion in Guttman III does
not address the claim, and the claims may have remained part of the case on
remand.
Given this procedural history, on this record we remain unclear as to the
status of Guttman’s Ex parte Young claim. The claim appears to have been part
of the initial district court proceedings, and it was specifically raised in
Guttman’s first appeal to this court. But the issue does not appear to have been
resolved one way or another in the many opinions addressing the claims in this
case. With this uncertainty, we conclude the better approach is to remand to the
district court to resolve whether the claim has been properly preserved. We
express no view on the procedural or substantive merits of the remand.
CONCLUSION
We REVERSE the district court’s dismissal of Guttman’s Ex parte Young
claim against the individual defendants on the basis of the alleged ADA violation,
AFFIRM the dismissal of all other claims against the State of New Mexico and
-56-
the individual defendants, and REMAND for proceedings consistent with this
decision.
-57-