Vinson

Brian Vinson (“Vinson”) filed suit against Alice Thomas (“Thomas”) and the State of Hawaii Department of Labor and Industrial Relations (“DLIR”) (collectively “the defendants”) claiming they denied him vocational rehabilitation services in violation of his rights under Title II of the ADA and section 504 of the Rehabilitation Act. The district court granted summary judgment in favor of the defendants. Vinson appeals.

Consistent with our recent decision in Douglas v. California Department of Youth Authority, 271 F.3d 812 , as amended, 271 F.3d 910 (9th Cir.2001), we hold that by its acceptance of federal Rehabilitation Act funds, the State waived its Eleventh Amendment immunity as to Vinson’s claim under section 504 of the Rehabilitation Act. We also conclude that genuine issues of material fact exist which preclude summary judgment on that claim. Thus, we reverse the district court’s summary judgment in favor of the DLIR on Vinson’s Rehabilitation Act claim.

Vinson’s claims against the individual defendant, Thomas, were asserted under 42 U.S.C. § 1983 . The only § 1983 claim preserved in this appeal is the claim that, acting in her individual capacity, Thomas violated Vinson’s…

dissenting:

I respectfully dissent from Part III of the majority’s determination that Brian Vinson’s claim of disability discrimination against Hawai’i should survive summary judgment. Indeed, if I were writing on a clean slate, I would not even reach the merits of his claim because I believe Ha- *1157 wai’i enjoys a constitutionally protected right of sovereign immunity from these suits that was neither waived nor validly abrogated by Congress.

I

For over a century, the Supreme Court has taught us that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Hans v. Louisiana, 134 U.S. 1, 15 , 10 S.Ct. 504 , 33 L.Ed. 842 (1890). Indeed, the Eleventh Amendment’s “ultimate guarantee” is “that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 , 121 S.Ct. 955 , 148 L.Ed.2d 866 (2001). We have seen the Supreme Court strike down statutes passed pursuant to Congress’s Article I power that purported to abrogate state sovereign immunity, Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 72-73…