Appeal from the United States District Courtfor the Northern District of CaliforniaClaudia Wilken, District Judge, PresidingArgued and SubmittedJune 9, 1997--San Francisco, CaliforniaFiled August 27, 1997Before: Alfred T. Goodwin, Dorothy W. Nelson, andStephen S. Trott, Circuit Judges.Opinion by Judge Goodwin
_____________________________SUMMARY
______________________COUNSEL James M. Humes, Deputy Attorney General, San Francisco,California, for the defendants-appellants.Eve H. Shapiro, Howard, Rice Nemerovski, Canady, Falk &Rabkin, San Francisco, California; Donald Specter, PrisonLaw Office, San Quentin, California, for the plaintiffs-appellees.Seth M. Galanter, United States Department of Justice, Wash-ington, D.C., for intervenor/amicus curiae United States ofAmerica.
_____________________________OPINION GOODWIN, Circuit Judge:California state officials appeal an injunction entered in aclass action brought by California state prison inmates andparolees with disabilities, who sought relief for violations ofthe Americans with Disabilities Act ("ADA"), 42 U.S.C.S 12131-34, and the Rehabilitation Act of 1973 ("RA"), 29U.S.C. S 794. The district court denied the defendants' motionfor summary judgment based on the Eleventh Amendment,found that the defendants had violated both statutes, andentered a remedial order and injunction directing them todevelop a plan for compliance with the statutes. The defen-dants appeal, and we affirm.I. FACTS AND PROCEDURAL HISTORY A certified class of all present and future California stateprison inmates and parolees with disabilities sued Californiastate officials in their official capacities, seeking injunctiverelief for violations of the RA and the ADA in state prisons.The parties stipulated that some prison facilities lack adequateemergency evacuation plans for prisoners with disabilities,that the range of vocational programs for disabled inmates ismore limited than the range provided for non-disabled prison-ers, and that some disabled inmates have been improperlyclassified for work and educational purposes so as to denythem the sentence reduction credits afforded to other inmates.The defendants do not challenge the content of the injunc-tion or the district court's finding that they violated the stat-utes. They argue only that the ADA and RA do not apply tostate prisons and that the Eleventh Amendment bars this suitin federal court.II. JURISDICTIONWe address first the plaintiffs' contentions that we lackjurisdiction to consider the appeal of the injunction. SeeBender v. Williamsport Area Sch. Dist.,
475 U.S. 534
, 541(1986) ("[E]very federal appellate court has a special obliga-tion to satisfy itself . . . of its own jurisdiction. . . .") (internalquotations omitted). Although we previously denied thedefendants' petition to proceed with the appeal under 28U.S.C. S 1292(b), which permits immediate appeal of anorder if it "involves a controlling question of law as to whichthere is substantial ground for difference of opinion and . . .an immediate appeal . . . may materially advance the ultimatetermination of the litigation," 28 U.S.C. S 1292(b), the defen-dants brought the current appeal under 28 U.S.C.S 1292(a)(1). That provision establishes jurisdiction for appeals from"[i]nterlocutory orders of the district courts . . . granting, con-tinuing, modifying, refusing or dissolving injunctions." 28U.S.C. S 1292(a)(1).[1] The plaintiffs assert that our previous discretionarydenial of permission to appeal under 28 U.S.C. S 1292(b)resolved that the defendants may not present in any interlocu-tory appeal their claims regarding the application of the stat-utes to prisons. However, interlocutory appeals underS 1292(a) are "by right," while those under S 1292(b) are "bypermission." See Edwards v. Director, Office of Workers'Comp. Progs., 932 F.2d 1325, 1328 (9th Cir. 1991). We haveheld that a denial of permission to appeal underS 1292(b)does not foreclose appeal under S 1292(a), where a litigantcan meet the requirements of S 1292(a). See Transworld Air-lines, Inc. v. American Coupon Exch., Inc., 913 F.2d 676, 680(9th Cir. 1990); see also City of Fort Madison v. EmeraldLady, 990 F.2d 1086, 1088-90 (8th Cir. 1993) (reaching ques-tion of jurisdiction under S 1292(a) after denial of permissiveappeal under S 1292(b)); Cobb v. Lewis, 488 F.2d 41, 45-46(5th Cir. 1974) (finding jurisdiction under S 1292(a) after pre-vious denial of permission to appeal under S 1292(b)).The plaintiffs also argue that the remedial order and injunc-tion are not appealable because the judgment in which theyare contained merely requires the defendants to submitdetailed plans for complying with the ADA and RA and isthus not an "injunction" within the meaning ofS 1292(a)(1).That the district court titled its order an "injunction," and thatthe parties might have understood it as such, does not end ourinquiry. "In determining the appealability of an interlocutoryorder under 28 U.S.C. S 1292(a)(1), we look to its substantialeffect rather than its terminology." Tagupa v. East-West Ctr.,Inc., 642 F.2d 1127, 1129 (9th Cir. 1981) (internal quotationsomitted). We thus must decide whether the district court'sorder has the substantial effect of an injunction.[2] Although we have never ruled on this question, a num-ber of other circuits have held that an order requiring submis-sion of a remedial plan is generally not an injunction that isreviewable interlocutorily under S 1292(a)(1). See, e.g.,Sherpell v. Humnoke Sch. Dist. No. 5, 814 F.2d 538, 539-540(8th Cir. 1987) (order to develop plans to end race discrimina-tion in schools); Groseclose v. Dutton, 788 F.2d 356, 359-61(6th Cir. 1986) (order to submit plans to remedy unconstitu-tional conditions on death row); Spates v. Manson, 619 F.2d204, 209-11 (2d Cir. 1980) (order to submit plan to improveprison legal resources); Hoots v. Pennsylvania, 587 F.2d1340, 1348-51 (3d. Cir. 1978) (order to submit plan to deseg-regate schools). Such a rule is "consonant with the federalpolicy against piecemeal appeals" and "enable[s] the appellatetribunal to examine the case in the context of a specific reme-dial regime instead of in a mere abstract posture. " FrederickL. v. Thomas, 557 F.2d 373, 379-80 (3d Cir. 1977).[3] Our sister circuits have recognized two exceptions tothe rule that orders requiring merely the development of aremedial scheme are not appealable injunctions underS 1292(a)(1). The Second, Third, Fourth, and Eleventh Cir-cuits have held that a normally non-appealable order to sub-mit a plan may be appealable when the order sufficientlyspecifies the content of the plan to be submitted. See Grose-close, 788 F.2d at 360; Spates, 619 F.2d at 209; Hoots, 587F.2d at 1349 ("controlling factor [is] whether the order speci-fie[s] the nature, requirements and extent of the relief to beafforded by the plan to be submitted"); see also United Statesv. Alabama, 828 F.2d 1532, 1536-38 (11th Cir. 1987) (deter-mining appealability under S 1291). An appellate court willlack jurisdiction under S 1292(a)(1) "when important issuesregarding the nature and extent of the relief . . . still remainto be resolved and are dependent on the particular circum-stances of the case as it would develop in the proceedingssubsequent to the entry of the order." Groseclose, 788 F.2d at360.[4] The Third Circuit has held that where delaying theappeal would not "clarify the questions on appeal " and wherethe exact specifications of the plan would not "alter in a mate-rial manner the issues that would be presented to the court ofappeals," an appeal of an order mandating the development ofa plan may proceed under S 1292(a)(1). Frederick L., 557F.2d at 380. Under this view, an appeal is not premature if theplan ultimately submitted will not change the "appellateperspective." Id. at 381.[5] This appeal meets both of these exceptions. First, thedistrict court prescribed the contents of the plan with somespecificity. It ordered that "as a component of the [plan], the[Department of Corrections] will cluster class members withcertain disabilities at designated institutions and parolefacilities." Armstrong v. Wilson, No. C-94-2307-CW, at 2-3(N.D. Cal. Sept. 20, 1996). The court further directed that theplan address specific substantive concerns of the disabledinmates such as disability grievance procedures, receptioncenter processing times, accommodations for emergency situ-ations, assistive aids, accessibility of new construction,criteria for medical disabilities, and school and job assign-ments for disabled prisoners. See id. [6] Although the precise contours of the final plan may beunknown, we conclude that the district court's order makesthe content and scope of the remedial scheme sufficientlyclear to enable appellate review. See Frederick L., 557 F.2dat 381 ("The precise ingredients of the plan . . . will have no. . . metamorphosizing effect on our understanding of thiscase.").[7] Second, the specific plan the defendants ultimately sub-mit will in no way alter our "appellate perspective" on the sin-gle issue the defendants raise in this appeal of the remedialorder: whether the ADA and RA apply to state prisoninmates. See id. We can answer this purely legal questionwhether or not a detailed remedial scheme has been formu-lated.[8] In light of the content of the district court's order andthe scope of the defendants' appeal, we conclude that we havejurisdiction under 28 U.S.C. S 1292(a)(1) to entertain thisappeal and thus proceed to discuss the merits of the defen-dants' claim that the ADA and RA do not apply to state prisoninmates.III. APPLICATION OF THE STATUTES TO STATE PRISONS[9] We have previously applied both the ADA and RA inthe state prison context. In Duffy v. Riveland, 98 F.3d 447,453-56 (9th Cir. 1996), we held that a prison inmate may statea claim under both the RA and the ADA that he was improp-erly excluded from participation in, and denied the benefitsof, a prison service, program, or activity on the basis of hisphysical handicap. In Bonner v. Lewis, 857 F.2d 559, 562 (9thCir. 1988), we held that the RA applies to state prisons on thebasis of the statute's plain language and the Justice Depart-ment's implementing guidelines.1[10] The defendants urge us to depart from these prior pre-cedents because the correctional officials in those cases failedto raise the issues of federalism and comity that the defen-dants present here. We decline to institute en banc traffic toretreat from our previous position. Even in light of recognizedfederalism concerns, we conclude that the plain language ofthe ADA and RA, and our prior interpretations of that lan-guage, support application of the statutes to state prisons. Wethus join the Third and Seventh Circuits, each of whichrecently have held that both statutes apply to state correctionalfacilities. See Yeskey v. Pennsylvania Dep't of Corrections, _______F.3d _______, No. 96-7292, 1997 WL 378975 (3d Cir. July 10,1997); Crawford v. Indiana Dep't of Corrections, 115 F.3d481 (7th Cir. 1997).[11] The Rehabilitation Act provides, in pertinent part, that"[n]o otherwise qualified individual with a disability . . . shall,solely by reason of her or his disability, be excluded from theparticipation in, be denied the benefits of, or be subjected todiscrimination under any program or activity receiving Fed-eral financial assistance." 29 U.S.C. S 794(a). The statute fur-ther defines "[p]rogram or activity" to include "all of theoperations of . . . a department, agency, special purpose dis-trict, or other instrumentality of a State or of a localgovernment." 29 U.S.C. S 794(b). This language suggests thatthe act applies broadly to all aspects of state and local gover-nance. Moreover, we have interpreted this precise language asevincing Congress's intent to apply the RA to " any programor activity receiving Federal financial assistance, " includingstate prisons. See Bonner, 857 F.2d at 562 (internal quotationsomitted). We also held in Bonner that prison disciplinaryhearings are "programs" with the meaning of the RA. See id.at 563; Duffy, 98 F.3d at 455.[12] The plain language of Title VII of the ADA is simi-larly expansive. It provides, in pertinent part, that "no quali-fied individual with a disability shall, by reason of suchdisability, be excluded from participation in or be denied thebenefits of the services, programs, or activities of a publicentity, or be subjected to discrimination by any such entity."42 U.S.C. S 12132. The act defines "public entity" as "anyState or local government [and] any department, agency, spe-cial purpose district, or other instrumentality of a State orStates or local government." 42 U.S.C. S 12131(1). This lan-guage encompasses all facets of state government includingprison administration. We agree with the Seventh Circuit'sconclusion that although "[i]ncarceration itself is hardly a`program' or `activity' to which a disabled person might wishaccess, . . . there is no doubt that an educational program isa program, and when it is provided by and in a state prisonit is a program of a public entity." Crawford, 115 F.3d at 483(internal citation omitted). In addition, since Congress hasdirected that the ADA and RA be construed consistently, see42 U.S.C. S 12134(b), the term "program " in the ADA canalso be read, in light of our prior cases concerning the RA, toencompass prison activities. See also Collings v. LongviewFibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995) (cases involv-ing the RA are "instructive" for claims under the ADA); cert.denied, 116 S. Ct. 711 (1996).[13] Nothing in the legislative history of the RA or ADAreflects an intent by Congress to exclude prisons or prisonersfrom the reach of the statutes. When it modeled the ADA onthe RA, Congress was presumably aware of numerous courtdecisions, including Bonner, that had held that the RA appliesto prisons. Nevertheless, Congress did not attempt, by altering the language that it was borrowing from the old stat- ute as the template for the new one, to prevent the new one from being interpreted the same way the old one had been interpreted; nor did it amend the [RA] to extinguish the old interpretation.Crawford, 115 F.3d at 484.[14] Relying on Torcasio v. Murray, 57 F.3d 1340 (4th Cir.1995), cert. denied, 116 S. Ct. 772 (1996), in which theFourth Circuit held that prison officials were entitled to quali-fied immunity because it was not "clearly established" at thetime of the alleged discrimination that the ADA and the RAapplied to prisons, the defendants contend that the texts of thestatutes do not naturally apply to the prison context. First,they assert that a prisoner cannot be a "qualified" individualunder the acts because most prison services and programs arecompulsory. See id. at 1347 ("The terms`eligible' and `partic-ipate' imply voluntariness on the part of an applicant whoseeks a benefit from the state; they do not bring to mind pris-oners who are being held against their will."). We have previ-ously held, however, that inmates may be considered"qualified individuals" for purposes of these acts. See Duffy,98 F.3d at 454; Bonner, 857 F.2d at 563. Moreover, inmatesdo "qualify" for particular programs and services provided bythe prison system in the sense that they must meet certain eli-gibility criteria for participation. For example, to qualify formental health treatment, inmates must be mentally ill, notpose a threat to themselves or others, and not have a historyof violence. The defendants' interpretation would immunizefrom the reach of these statutes any compulsory service pro-vided by the state, such as public education or jury service.[15] The defendants also argue that because prisons servethe state's penological interests, the "services, programs, andactivities" they provide are not "benefits " within the meaningof these statutes or as that term is ordinarily understood. SeeTorcasio, 57 F.3d at 1347. Some services and programs thatprisons provide, such as educational and vocational trainingand medical attention, can be seen as benefits to the inmates,however. More significantly, the ADA and the RA do notmerely protect disabled individuals from denial of benefits.They also prevent disabled individuals from being "excludedfrom participation in" or "subjected to discrimination under"any state program or activity and they prohibit "discrimina-tion by" any public entity. See 29 U.S.C. 794(a); 42 U.S.C.S 12132. Thus, whether the inmates "benefit " from prisonprograms is irrelevant to the issue of whether state prisonsmay exclude disabled inmates from programs they provide toothers or discriminate against disabled inmates in the variousaspects of prison life.The defendants urge us to apply the plain statement rule,which holds that where Congress intends to alter the federal-state balance, or invade an essential state function, it must doso in unmistakable terms. See Gregory v. Ashcroft, 501 U.S.452, 460-61 (1991). In Gregory, the Court refused to applythe Age Discrimination in Employment Act (ADEA) to statejudges in the absence of an expression of clear congressionalintent because it found that "it is at least ambiguous whetherCongress intended that appointed judges . . . be included." Id.at 470. In contrast to the ADEA, which expressly excludesmost high-ranking public officials from its reach, see 29U.S.C. S 630(f), the ADA and RA apply to "any" and "all"state entities and operations without exclusions. We agreewith the Seventh Circuit's statement that Congress couldhardly have spoken "much more clearly than it did when itmade the [ADA] expressly applicable to all public entities anddefined the term `public entity' to include every possibleagency of state or local government." Crawford, 115 F.3d at485; see also Yeskey, _______ F.3d _______, 1997 WL 378975, at *5.[16] Although the defendants' federalism arguments havesome force in the context of prisons, which traditionally areareas of state concern, we have held that other functions tradi-tionally reserved to the states are subject to the ADA and RA.For example, in Crowder v. Kitagawa, 81 F.3d 1480, 1485(9th Cir. 1996), we held that the ADA applies to a quarantinelaw enacted by the state to protect public health under itspolice powers. Although "mindful of the general principlethat courts will not second-guess the public health and safetydecisions of state legislatures acting within their traditionalpolice powers," we concluded that "when Congress haspassed antidiscrimination laws such as the ADA . . ., it isincumbent upon the courts to ensure that the mandate of fed-eral law is achieved." Id. In passing the ADA and RA, Con-gress has articulated its judgment that discrimination againstindividuals with disabilities will not be tolerated and it delib-erately drafted the statutes to include language reaching intothe state sphere. That prison administration may be a corestate function does not give us license to disregard clear con-gressional intent. See Yeskey, _______ F.3d_______, 1997 WL 378975,at *5.While the Tenth Circuit has refused to apply the ADA andthe RA to prison employment, see White v. Colorado, 82 F.3d364, 367 (10th Cir. 1996), and we have declined to apply theFair Labor Standards Act to most prison jobs, see Hale v. Ari-zona, 993 F.2d 1387, 1392-98 (9th Cir. 1993), the plaintiffsin this case seek a qualitatively different form of relief thanthe prisoners in those cases sought. These plaintiffs seek basicaccess to facilities, inclusion in safety plans, and non-discriminatory treatment in residential placements and prisonprograms. "Rights against discrimination are among the fewrights that prisoners do not park at the prison gates."Crawford, 115 F.3d at 486 (citing Turner v. Safley, 482 U.S.78, 84 (1987)). In enacting the RA and ADA, Congressintended to eliminate discrimination against individuals withdisabilities, just as it had earlier passed legislation mandatingequal treatment of African-Americans. "If a prison may notexclude blacks from the prison dining hall and force them toeat in their cells, and if Congress thinks that discriminatingagainst a blind person is like discriminating against a blackperson," the prison may not exclude the blind person from thedining hall unless allowing him access would unduly burdenprison administration. Id. [17] We thus hold, based on the plain meaning of the stat-utes, that the ADA and RA apply to inmates and parolees inthe state correctional system and affirm the district court'sapplication of these statutes in entering the injunction.IV. ELEVENTH AMENDMENT IMMUNITY We next address the defendants' contention that sovereignimmunity bars this suit in federal court. We hold that theexception to Eleventh Amendment immunity set forth in Exparte Young,
209 U.S. 123
(1908), squarely applies to allowthis action against named individuals in their official capacity.2[18] Under the doctrine of Ex parte Young, the EleventhAmendment is no bar to "federal jurisdiction over a suitagainst a state official when that suit seeks only prospectiveinjunctive relief in order to `end a continuing violation of fed-eral law.' " Seminole Tribe v. Florida, 116 S. Ct. 1114, 1132(1996) (quoting Green v. Mansour
474 U.S. 64, 68
(1985))."The Young doctrine rests on the premise that a suit againsta state official to enjoin an ongoing violation of federal lawis not a suit against the State." Idaho v. Coeur d'Alene Tribe,117 S. Ct. 2028, 2047 (1997) (plurality opinion). Even wherethe relief sought may have a "substantial ancillary effect onthe state treasury," a suit against state officials may proceedso long as the relief "serves directly to bring an end to a pres-ent violation of federal law." Papasan v. Allain,
478 U.S. 265
,278 (1986); see also Milliken v. Bradley,
433 U.S. 267
, 289-90 (1977).[19] The defendants do not contest that this suit againststate officials seeks only prospective injunctive relief to endcontinuing violations of the ADA and RA. They neverthelessargue that because the plaintiffs seek wide-ranging, wholesaleinstitutional reforms of California's prison system, the suit isagainst the state and thus falls outside the bounds of Ex parteYoung. No court, however, has carved out an exception to Exparte Young on the basis of the complexity and scope of theprospective injunctive relief sought. To the contrary, manycourts have permitted suits to proceed under Young whereplaintiffs sought comprehensive relief similar to the reformsthe plaintiffs seek here. See, e.g., Committee to SaveMokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305,307, 309-10 (9th Cir. 1993) (rejecting Eleventh Amendmentimmunity claim where defendants were required to devise aremedial plan to remove contaminants); Parents for QualityEduc. with Integration, Inc., v. Indiana, 977 F.2d 1207, 1209-11 (7th Cir. 1992) (allowing suit seeking widespread educa-tional reforms against state officials), modified on othergrounds, 986 F.2d 206 (7th Cir. 1993). We, too, see no basisfor creating such an exception.[20] The defendants also maintain that Ex parte Young islimited to violations of federal constitutional law and does notpermit suits to remedy statutory violations. This argument iswithout merit. We have held squarely that Young applies tosuits alleging violations of federal statutes. See NaturalResources Defense Council v. California Dep't of Transp., 96F.3d 420, 422-23 (9th Cir. 1996) (stating that Young "appliesto violations of federal statutory law" and permitting suitunder Young for violations of the Clean Water Act); AlmondHill Sch. v. United States Dep't of Agric., 768 F.2d 1030,1034 (9th Cir. 1985) ("The underlying purpose of Ex parteYoung seems to require its application to claims against stateofficials for violations of federal statutes.").[21] Sovereign immunity presents no bar to this suit againststate officials seeking prospective injunctive relief againstongoing violations of the ADA and RA in the state penal sys-tem. The district court thus correctly denied the defendants'motion for summary judgment.V. CONCLUSIONBecause we conclude that the ADA and RA apply toinmates and parolees in the state penal system and that thissuit may proceed in federal court under the doctrine of Exparte Young, we affirm the judgment of the district court.AFFIRMED. the end
___________________________FOOTNOTES 1 The application of the RA to state prisons was also implicated in Gatesv. Rowland, 39 F.3d 1439, 1445 (9th Cir. 1994). Because the parties inthat case stipulated that the statute applied, however, we had no occasionto reach the question.2 For a related case by prisoners against the State of California squarelypresenting the Eleventh Amendment defense, see our opinion filed thisday in Clark v. California, No. 96-16952 (9th Cir. _______ 1997).