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, 

(10th Cir. 2005) (Guttman II); Guttman v. Khalsa, 

(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.” 

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.” 

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.,

(2005). Guttman 

, vacated and remanded, 

(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, 

(2004), and United States v. Georgia, 

(2006), whether Title II of the ADA validly abrogated sovereign immunity in

the area relevant to this controversy. Guttman 

, 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., 

(1923), and District of Columbia Court
of Appeals v. Feldman, 

(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., 

, 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. 

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. 

      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.” 

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.” 

Title II authorizes suits

by private citizens for money damages against public entities that violate § 12132.

See 

(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., 

, 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, 

, 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, 

, 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., 

, 365–66 (N.M. 2010)

(quoting Shovelin v. Cent. N.M. Elec. Coop., Inc., 

, 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, 

, 488–89 (W.D. Mich. 1995), aff’d

(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 

, 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 

v.

University of Md. Med. Sys. Corp., 

, 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, 

, 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, 

, 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, 

, 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, 

, 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, 

, 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. 

–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.” 

; see also City of

Boerne v. Flores, 

, 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, 

, 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 

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 

(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, 

(2006); Tennessee v. Lane, 

(2004); Board of Trs. of Univ.

of Ala. v. Garrett, 

(2001). Most relevant here, in Tennessee v. 

–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.” 

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, 

–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 

. 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.” 

.

      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 

, 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.” 

. 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, 

, 862 (10th Cir. 1995) (quotations omitted). In light

of Stidham v. Peace Officer Standards & Training, 

, 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, 

, 1220 (10th Cir.

2006) (citing Mathews v. Eldridge, 

, 335 (1976)). “[D]ue process is

flexible and calls for such procedural protections as the particular situation

demands.” Morrissey v. Brewer, 

, 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, 

,

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.” 

      “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.” 

(citing North American Cold

Storage Co. v. City of Chicago, 

, 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, 

, 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, 

, 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, 

,

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 

, 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. 

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, 

, 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, 

,

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, 

, 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., 

, 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, 

, 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.” 

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 

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.” 

.

                            *            *             *

      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 

. 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, 

, 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 

(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. 

. 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 

–36; see also 

, 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.” 

(considering the specific history of discrimination

in the area of access to the courts); see also 

(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.” 

. Accordingly, in Lane, see 

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 

, 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., 

, 896 (8th Cir.

2006); Constantine v. Rectors & Visitors of George Mason Univ., 

,

487 (4th Cir. 2005); Ass’n for Disabled Ams., Inc. v. Florida Int’l Univ., 

, 958 (11th Cir. 2005); McCarthy ex rel. Travis. v. Hawkins, 

,

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,

, 35 (1st Cir. 2006).

      This approach is consistent with 

, 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. 

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.” 

. 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

–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. 

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, 

, 291–92 (1999); see also

Collins v. Texas, 

(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, 

, 320 (1993)); City of 

(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 

.

With respect to Title II generally, Lane settles the issue. In 

, 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.”

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 

(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, 

, 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. 

(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, 

, 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].” 

. 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

. The plaintiffs in Lane could not enter a courthouse

because the state did not accommodate their physical disabilities. 

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

(“[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 

, 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 

                                         -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 

.

      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. 

–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. 

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.” 

. 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 

, 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. 

Kimel v. Florida Board of Regents, 

, 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.” 

And in Board of Trustees of the

University of Alabama v. 

, 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.

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.” 

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. 

, 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. 

      The Court applied the same logic in Tennessee v. 

–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.” 

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.” 

      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.” 

. “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.” 

(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, 

,

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., 

, 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, 

, 135 (E.D.N.Y. 2005); 

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, 

, 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 

, 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., 

–40;

; Assoc. for Disabled Ams., 

. 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 

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 

, 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 

(quotation omitted); see

also Florida 

(using the same language); 

(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 

, which the Court held fell

“far short of even suggesting the pattern of unconstitutional discrimination on

which § 5 legislation must be based,” 

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 . . . .” 

. 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, 

, 122 (1889); see

also Amanatullah v. Colo. Bd. of Med. Exam’rs, 

, 1164 (10th Cir.

1999) (“[T]here is no question that the licensing and discipline of physicians

involves important state interests.”); Brinkley v. Hassig, 

, 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 

.

      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, 

, 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,

, 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, 

(1976)). When these

two elements are present, the government may have “violate[d] a liberty interest

that triggers a procedural due process protection.” 

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., 

, 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.” 

(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, 

, 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. 

; see also Darr v. Town of Telluride, 

, 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.

n.1 (relying on 

). Shortly after

Renaud was decided, the Supreme Court confirmed our interpretation in Siegert v.

Gilley, 

, 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. 

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, 

(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, 

, 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.” 

State Sch. &

Hosp. v. Halderman, 

, 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., 

, 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, 

, 1233 (10th Cir. 2001). In 

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, 

, 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, 

(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, 

(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. 

v. Zavaras, 

, 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.” 

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, 

, 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.” 

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. 

        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 

. Guttman 

, vacated and remanded, 

(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, 

(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 . . . .” 

          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 

.

          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.” 

      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 

. 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.” 

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 

. 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-