                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL H. VARTANIAN,                           No.    18-16084

                Plaintiff-Appellant,            D.C. No. 5:18-cv-00826-EJD

 v.
                                                MEMORANDUM*
STATE BAR OF CALIFORNIA;
NORTHWESTERN CALIFORNIA
UNIVERSITY SCHOOL OF LAW,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward J. Davila, District Judge, Presiding

                          Submitted December 5, 2019**
                            San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH,*** District
Judge.

      Plaintiff-Appellant Michael Vartanian challenges the district court’s


      *
             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).
      ***
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
dismissal without leave to amend, pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), of his claims that Defendant-Appellees State Bar of

California and Northwestern California University School of Law (Law School)

collaborated to summarily dismiss him as a student of the Law School. Vartanian

also challenges the district court’s denial of his motion for reconsideration.

Reviewing the district court’s dismissal of Vartanian’s claims de novo, Big Bear

Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1101 (9th Cir. 1999); Jachetta

v. United States, 653 F.3d 898, 903 (9th Cir. 2011), and denial of his motion for

reconsideration for abuse of discretion, Micha v. Sun Life Assurance of Canada,

Inc., 874 F.3d 1052, 1056 (9th Cir. 2017), we affirm.1

      1.     The State Bar possesses sovereign immunity under the Eleventh

Amendment. Hirsch v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th

Cir. 1995). Whether it has sovereign immunity from Vartanian’s retaliation claim

under the Americans with Disabilities Act (ADA) turns on the alleged predicate

violation of the ADA that Vartanian opposed, resulting in the Bar’s purported

retaliation. See Demshki v. Monteith, 255 F.3d 986, 988–89 (9th Cir. 2001)

(holding that sovereign immunity bars suit where Title V retaliation claim was

predicated on Title I violation because Congress has not validly abrogated the


1
  We grant Vartanian’s motion to take judicial notice (Dkt. No. 21), and his motion
to strike portions of Defendant-Appellee Law School’s briefing and excerpts of
record (Dkt. No. 45).

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Eleventh Amendment with respect to Title I of the ADA). Here, Vartanian

opposed conduct that allegedly violated Title II of the ADA. Congress has validly

abrogated state sovereign immunity with respect to Title II of the ADA “as it

applies to the class of cases implicating the fundamental right of access to the

courts.” Tennessee v. Lane, 541 U.S. 509, 533–34 (2004). Vartanian’s opposition

to a proposed rule of professional conduct, which would have regulated

interactions between private parties and permitted lawyers to take certain

protective actions on behalf of clients with diminished capacity, does not rise near

to the level of implicating any “fundamental right of access to the courts.” Id.

Because the proposed rule of professional conduct did not substantially restrict or

impair access to the courts, the State Bar is protected from that claim by sovereign

immunity.

      The State Bar also has sovereign immunity against Vartanian’s due process

claim. Congress has not abrogated sovereign immunity for 42 U.S.C. § 1983

claims. Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985). And as currently

pleaded, the Complaint names the State Bar, not any of its acting officials, as the

Defendant, thus barring an action for prospective relief under the principles of Ex

parte Young, 209 U.S. 123 (1908).

      2.     Further, Vartanian did not plausibly state a claim for relief under the

ADA against both the Law School and the State Bar. A prima facie case for


                                          3
retaliation under the ADA requires a showing of “(1) involvement in a protected

activity, (2) an adverse [] action, and (3) a causal link between the two.” Brown v.

City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (quoting Brooks v. City of San

Mateo, 229 F.3d 917, 928 (9th Cir. 2000)). Vartanian’s letters to the California

Supreme Court and State Legislature criticizing a proposed rule of professional

conduct that had been submitted by the State Bar do not constitute protected

activity because Vartanian could not reasonably have believed that a proposed

rule, which involved routine regulation of attorney-client relations and permitted

protective actions to be taken on behalf of disabled clients, constituted a violation

of the ADA’s requirement that public entities not discriminate against disabled

persons in its public services, programs, and activities. 42 U.S.C. § 12132. Also,

Vartanian has not alleged enough facts to make plausible his causation claim that

the Law School dismissed him from school at the direction of the State Bar, in

retaliation for his letters opposing the proposed rule. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). For these reasons, Vartanian did not state a

claim under the ADA.

      3.     Vartanian also did not state a claim for a due process violation.

Vartanian has no cognizable liberty or property interest either “in practicing the

profession of his choice,” Giannini v. Real, 911 F.2d 354, 357 (9th Cir. 1990), or

in attending a private law school. Nor has Vartanian plausibly alleged government


                                          4
action in the form of the State Bar directing the Law School to summarily dismiss

him.

       4.     The district court acted within its discretion by denying leave to

amend. We conclude that there is no set of facts that could establish that

Vartanian’s belief in the proposed rule’s illegality was reasonable or that his letters

“initiated” a self-evaluation process by the Bar, which is already automatic under

28 C.F.R. § 35.105(a). His letters show mere disagreement with the State Bar’s

policy, but “Title II does not require States to employ any and all means to make

judicial services accessible to persons with disabilities.” Lane, 541 U.S. at 531–32.

His complaint is not just factually insufficient but also legally insufficient to show

that he engaged in protected activity under the ADA, so granting leave to amend

the pleadings would be futile. Chappel v. Laboratory Corp. of America, 232 F.3d

719, 725–26 (9th Cir. 2000); Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

Cir. 1988).

       Similarly, because Vartanian can allege no cognizable liberty or property

interest in attending a private law school, amendment of his due process claim

would also be futile. And to the extent Vartanian raises for the first time on appeal

a retaliation claim under the First and Fourteenth Amendments, he has waived that

argument, and we decline to consider it. Slaven v. American Trading Transp. Co.,

146 F.3d 1066, 1069 (9th Cir. 1998). Because amendment would be futile, we


                                           5
affirm the district court’s dismissal without leave to amend.

      5.     Finally, the district court did not abuse its broad discretion to deny

Vartanian’s motion for reconsideration under Federal Rule of Civil Procedure

59(e). See Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

2000). The California Supreme Court’s decision to reject without explanation the

challenged proposed rule was not “newly discovered evidence” because that

decision was publicly available weeks before the motion to dismiss hearing in this

case. Id. And the decision not to adopt a new rule does not constitute “an

intervening change in the controlling law.” Id. (emphasis added). No basis for the

“extraordinary remedy” of granting a motion for reconsideration applies. Id.

      AFFIRMED.




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