Ronald Arnett; Harold Bailey; Jim Bean; Marguerette Howard; Joycelyn Keller; Wayne E. Lord; Diane S. Militano, Plaintiffs-appellants,andanthony Ryan Plaintiff, v. California Public Employees Retirement System (pers); Harry Bubb; Robert Carlson; Richard "bud" Carpenter; Thomas Clark; Kathleen Connell; Jerry Cremins; William Crist; Michael Flaherman; Matt Fong; William "bill" Rosenberg; Kurato Shimada; Charles Valdes, Strictly in Their Official Capacity As Members of the Board of Administration of Pers; State of California, As Administrator of the Pers and by and Through Each of Its Agencies; California Youth Authority; California Department of Corrections; City of West Covina; Department of Motor Vehicles; City of Orange; Riverside County; City of Fremont, Defendants-appellees, 207 F.3d 565 (9th Cir. 2000)

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U.S. Court of Appeals for the Ninth Circuit - 207 F.3d 565 (2000)

March 16, 2000Amended April 25, 200Amended May 12, 2000


Ellen Lake, Oakland, California, for the plaintiffs-appellants.

Irene K. Tamura, Deputy Attorney General, Sacramento, California, for the state defendants-appellees.

Henry S. Hewitt, Erickson, Beasley, Hewitt & Wilson, Oakland, California, for the city and county defendants-appellees.

Laurie A. McCann, Washington, D.C., for amicus curiae American Association of Retired Persons.

Jennifer S. Goldstein, Washington, D.C., for amicus curiae Equal Employment Opportunity Commission.

On Remand from the United States Supreme Court D.C. No. CV-95-03022-CRB

Before: Ferdinand F. Fernandez and M. Margaret McKeown, Circuit Judges, and Charles R. Weiner, Senior District Judge.1

Appellants challenged the district court's grant of motions to dismiss for failure to state a claim and for judgment on the pleadings. We reversed the district court. See Arnett v. California PERS, 179 F.3d 690 (9th Cir. 1999). The State of California, California Public Employees' Retirement System, and several other governmental entities (collectively "the State of California") sought certiorari relief from the United States Supreme Court and, without further specification, the Supreme Court granted certiorari and vacated and remanded the case to the Ninth Circuit for further consideration in light of its holding in Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000).2 Kimel dealt with whether the Age Discrimination in Employment Act (ADEA) abrogates the State's Eleventh Amendment immunity. The Supreme Court held "that the ADEA does contain a clear statement of Congress' intent to abrogate the States' immunity, but that the abrogation exceeded Congress' authority under S 5 of the Fourteenth Amendment." Id. at 637. The State of California did not raise the Eleventh Amendment immunity issue in its briefs to this court, nor was the issue argued to this court. Theonly reference to the Eleventh Amendment issue was in a Rule 28(j) letter in which the Kimel case was cited. In light of this procedural posture, we remand this case to the district court for further consideration consistent with Kimel.

The panel has voted unanimously to deny the petition for rehearing. The petition for rehearing is DENIED. The motion to permit filing of further excerpts of record is also DENIED.

REMANDED.

1

The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

2

See California Public Employees' Retirement System v. Arnett, 120 S. Ct. 930 (2000).