Doe

Opinion by Judge CHOY; Dissent by Judge CANBY.

Appellant, Dr. John Doe, Ph.D. (“Doe”), on behalf of himself and all others similarly situated, appeals the district court’s dismissal of his breach of contract claim against the Regents of the University of California (“University”) and his § 1983 claim against John Nuckolls (“Nuckolls”), director of the Lawrence Livermore National Laboratory (“Laboratory”) which is owned by the United States Department of Energy (“Department”) and is operated by the University.

Doe is a mathematical physicist who signed an employment contract with the Laboratory. Doe contends that the Laboratory wrongfully refused to perform the contract of employment by peremptorily determining that Doe could not obtain a security clearance from the Department. The district court dismissed Doe’s breach of' contract claim against the Laboratory and the University because it held that the Laboratory and the University, as arms of the state, were immune from suit in federal court under the Eleventh Amendment. Doe appeals the district court’s decision to grant Eleventh Amendment immunity to the University, as manager of the Laboratory.

Doe also appeals the district…

dissenting:

With all respect to the majority, I disagree with its conclusion that the Eleventh Amendment does not bar this action against the University and its officers acting in their official capacities.

As the majority opinion recognizes, we have previously held that the University of California is an arm of the California State Government entitled to Eleventh Amendment immunity from suit in federal court. E.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir.1989) (“It has long been established that UC is an instrumentality of the state for purposes of the Eleventh Amendment”); BV Engineering v. Univ. of Calif., Los Angeles, 858 F.2d 1394, 1395 (9th Cir.1988), cert. denied, 489 U.S. 1090 , 109 S.Ct. 1557 , 103 L.Ed.2d 859 (1989). In my view, these cases are controlling, and there is no call to reassess the status of the University in the absence of a change in its structure. If the University is the defendant, and judgment is sought against the University, the case may not be brought in federal court unless the immunity has been waived. BV Engineering, 858 F.2d at 1396 .

The majority, however, does decide anew the question of the University’s immunity. *777…