FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

BENJAMIN KOHN,                            No. 20-17316

             Plaintiff-Appellant,       D.C. No. 4:20-cv-
                                           04827-PJH
 v.

STATE BAR OF CALIFORNIA;                    OPINION
CALIFORNIA COMMITTEE OF
BAR EXAMINERS, and Their Agents
in Their Official Capacity,

             Defendants-Appellees.

      Appeal from the United States District Court
         for the Northern District of California
      Phyllis J. Hamilton, District Judge, Presiding

  Argued and Submitted En Banc September 20, 2023
              San Francisco, California

                Filed December 6, 2023

 Before: Mary H. Murguia, Chief Judge, and Johnnie B.
 Rawlinson, Sandra S. Ikuta, John B. Owens, Daniel A.
 Bress, Danielle J. Forrest, Patrick J. Bumatay, Jennifer
Sung, Gabriel P. Sanchez, Holly A. Thomas and Salvador
              Mendoza, Jr., Circuit Judges.
2                KOHN V. STATE BAR OF CALIFORNIA


                     Opinion by Judge Owens;
             Partial Concurrence by Judge Mendoza;
    Partial Concurrence and Partial Dissent by Judge Bumatay


                          SUMMARY *


               Eleventh Amendment Immunity

    The en banc court (1) affirmed in part the district court’s
dismissal of attorney Benjamin Kohn’s action against the
State Bar of California and the California Committee of Bar
Examiners under Title II of the Americans with Disabilities
Act, Section 504 of the Rehabilitation Act, and California
law; and (2) remanded to the original three-judge panel for
consideration of the remaining issues.
    In the State Bar’s role in the admission of attorneys, it
acts under the authority and at the direction of the California
Supreme Court. Kohn sought monetary damages and other
relief based on the State Bar’s refusal to provide him with
certain test-taking accommodations for the bar exam. The
district court dismissed the action on the basis of Eleventh
Amendment immunity.
    The en banc court reaffirmed that the California State
Bar enjoys Eleventh Amendment immunity from suit in
federal court. The en banc court held that Eleventh
Amendment immunity extends not only to suits in which a
state itself is a named party, but also to suits against an “arm


*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               KOHN V. STATE BAR OF CALIFORNIA                 3


of the state.” The Ninth Circuit’s version of the test for
determining whether an entity is an arm of the state applied
the so-called Mitchell factors. The en banc court concluded
that the Mitchell factors test should be reshaped in light of
developments in Supreme Court doctrine and the Ninth
Circuit’s      experience      applying       the     Mitchell
factors. Accordingly, the en banc court adopted the D.C.
Circuit’s three-factor test, which considers: (1) the state’s
intent as to the status of the entity, including the functions
performed by the entity; (2) the state’s control over the
entity; and (3) the entity’s overall effects on the state
treasury.
    Applying this updated three-factor test, the en banc court
held that the California State Bar is an arm of the state and
entitled to sovereign immunity. The en banc court
concluded that the first factor, California’s intent as to the
State Bar, strongly favored the conclusion that it is an arm of
the state, as did the second factor, the state’s control over the
State Bar. The en banc court concluded that the third factor,
the State Bar’s effects on the state treasury, presented a
closer call but was not dispositive.
   Concurring in part, Judge Mendoza agreed with the
majority that the Mitchell factors were out of step with the
Supreme Court’s jurisprudence and that the California State
Bar is an arm of the state for sovereign immunity
purposes. He wrote separately to