Matthew Flinders v. State Bar of California

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 2, 2024
• Docket: 22-17014
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MATTHEW FLINDERS, No. 22-17014

Plaintiff-Appellant, D.C. No. 5:22-cv-04072-VKD

v. MEMORANDUM* STATE BAR OF CALIFORNIA,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Virginia K. DeMarchi, Magistrate Judge, Presiding

Submitted February 2, 2024** San Francisco, California

Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.

Matthew Flinders appeals the dismissal without prejudice of his suit under

the Age Discrimination and Employment Act (“ADEA”) and the California Fair

Employment and Housing Act (“FEHA”) against the California State Bar (“State

Bar”). The district court dismissed without prejudice, concluding that jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). was lacking because Flinders had failed to petition the California Supreme Court

for review of his denial of admission to the bar. We may affirm on any ground

supported in the record. Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp.,

159 F.3d 412, 418 (9th Cir. 1998). We affirm on the ground that the State Bar has

sovereign immunity from this suit.

We recently reaffirmed en banc in Kohn v. State Bar of California, 87 F.4th

1021 (9th Cir. 2023), that the State Bar is entitled to sovereign immunity. Id. at

1023. After we issued our decision in Kohn, the parties filed supplemental briefs

addressing that decision’s impact on this case. In his brief, Flinders argues for the

first time that even if the State Bar is generally entitled to sovereign immunity,

sovereign immunity has been abrogated as to his discrimination claim under the

ADEA.

Even if this argument were not forfeited, it would fail because sovereign

immunity is only even potentially abrogated by the ADEA for claims that also

constitute constitutional violations. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62,

67 (2000) (holding that the ADEA does not validly abrogate sovereign immunity);

United States v. Georgia, 546 U.S. 151, 158–59 (2006) (holding that Title II of the

Americans with Disabilities Act validly abrogates sovereign immunity for claims

that also constitute constitutional violations).

Flinders’s complaint does not state a constitutional claim. Flinders’s

2 allegations could potentially state an ADEA claim under a disparate impact theory,

but none of his allegations describe intentional discrimination, which would be

required to state a constitutional claim under the Equal Protection Clause. See

Washington v. Davis, 426 U.S. 229, 242 (1976); Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977).

Flinders also cites Granholm v. Heald, 544 U.S. 460 (2005), to argue that his

claims constitute violations of the Due Process and Privileges and Immunities

Clauses. But Granholm concerned discrimination against interstate commerce

under the dormant Commerce Clause, id. at 466, 472–76, and Flinders does not

make any allegations of discrimination against interstate commerce, only

discrimination based on age. Nor does he allege that the State Bar treats people

differently depending on whether they are from California, so he has not stated a

claim under the Privileges and Immunities Clause. See Sup. Ct. of N.H. v. Piper,

470 U.S. 274, 279–81 (1985).

Flinders also argues that his claims amount to violations of a due process

right to contract, but the right to contract is not absolute, and the state may restrict

freedom of contract to protect the public interest. See W. Coast Hotel Co. v.

Parrish, 300 U.S. 379, 392–93 (1937). Flinders has not provided any basis to

conclude that the State Bar’s scoring system is arbitrary or irrational. He has

provided statistics showing that older test-takers are much less likely to pass than

3 younger ones, but he has not alleged that the different age groups of test-takers are

similarly situated. See Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 966 (9th

Cir. 2017). Absent such allegations, Flinders has not stated a claim under the Due

Process Clause. See W. Coast Hotel Co., 300 U.S. at 391–92.

For the foregoing reasons, we AFFIRM.