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 caution against adopting the D.C. Circuit’s appro