Arnett v. California Public Employees' Retirement System (PERS)

ORDER

Appellants challenged the district court’s grant of motions to dismiss for failure to state a claim and for judgment on the pleadings. We reversed the district court. See Arnett v. California PERS, 179 F.3d 690 (9th Cir. 1999). The State of California, California Public Employees’ Retirement System, and several other governmental entities (collectively “the State of California”) sought certiorari relief from the United States Supreme Court and, without further specification, the Supreme Court granted certiorari and vacated and remanded the case to the Ninth Circuit for further consideration in light of its holding in Kimel v. Florida Board of Regents, — U.S.-, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).2 Kimel dealt with whether the Age Discrimination in Employment Act (ADEA) abrogates the State’s Eleventh Amendment immunity. The Supreme Court held “that the ADEA does contain a clear statement of Congress’ intent to abrogate the States’ immunity, but that the abrogation exceeded Congress’ authority under § 5 of the Fourteenth Amendment.” Id. at-■, 120 S.Ct. at 637. The State of California did not raise the Eleventh Amendment immunity issue before the district court or in its briefs to this court, nor was the issue argued to this court. The *566only reference to the Eleventh Amendment issue in this court was in a Rule 28(j) letter in which the Kimel case was cited. In light of this procedural posture, we remand this case to the district court for further consideration consistent with Ki-mel.

The panel has voted unanimously to deny the petition for rehearing. The petition for rehearing is DENIED. The motion to permit filing of further excerpts of record is also DENIED.

REMANDED.