Matthew Kiman, Plaintiff, Appellant, Andunited States, Intervenor, v. New Hampshire Department of Corrections, et al., Defendants, Appellees, 310 F.3d 785 (1st Cir. 2002)

Order of the En Banc Court

The petition for rehearing en banc is granted. The panel opinion of this court of August 20, 2002 is withdrawn and the judgment of this court of August 20, 2002 is vacated. Both sides and the intervenor United States are directed to file simultaneous supplementary briefs not to exceed 30 pages per side, which should assume the familiarity of the en banc court with the briefs already filed on this appeal and need not repeat arguments addressed therein. The supplemental briefing should address the Eleventh Amendment issues, with particular focus on the following:

1. Whether the state's invocation of a sovereign immunity defense under the Eleventh Amendment may or should be analyzed as a facial challenge to the entire statute at issue rather than as applied to the facts at issue in the case at bar.

2. Whether the Eleventh Amendment constrains Congress, in addition to any relief it may provide under other statutes such as 42 U.S.C. § 1983, from acting under Title II of the ADA to: (a) provide a separate cause of action; (b) provide remedies, including damages, for such conduct, and; (c) define the standards of proof and defenses.

Ten copies of each brief should be filed by both sides within 30 days of the date of this order. Oral argument is scheduled for 9:00 a.m. on January 6, 2003 in the en banc courtroom in the John Joseph Moakley U.S. Courthouse. The attention of counsel is drawn to the requirement of Loc. R. 32 as to the filing of briefs in disk form.

The court welcomes motions to file amicus briefs concerning any of the issues in this appeal.