Benjamin Kohn v. State Bar of California, et al.

In Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 391 (1998), this Court noted it hasn’t yet decided whether sovereign immunity implicates subject matter jurisdiction. Consequently, the circuits are split on whether sovereign immunity is properly reviewed under Rule 12(b)(1) or 12(b)(6). Among circuits applying 12(b)(1), nested splits manifest from further disagreements over what circumstances permit factual challenges to jurisdiction. Moreover, several circuits hold Rule 12(b)(1) dismissals must be without prejudice to avoid disclaiming jurisdiction and then exercising it, which rule the decision below splits from to affirm dismissal with prejudice of Kohn’s Rehabilitation Act claims under Rule 12(b)(1) based on Respondents’ assertions that they didn’t directly receive federal funding and thus purportedly hadn’t waived sovereign immunity. This petition presents the following questions: Whether sovereign immunity implicates subject-matter jurisdiction such that it may be resolved through factual challenges under Federal Rule of Civil Procedure 12(b)(1), and if so, may such jurisdictional dismissals be made with prejudice? Whether this Court should revisit Hans v. Louisiana, 134 U.S. 1 (1890), to clarify whether state sovereign immunity in federal court applies solely to claims based on diversity jurisdiction?