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JOHN ARMSTRONG; JOHN AMAURIC;
RICHARD PONCIANO; JACK SWENSEN;
BILLY BECK; JUDY FENDT; WALTER
FRATUS; ROY ZATTIERO,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
No. 96-16870
Intervenor,

D.C. No.
v.
CV-94-02307-CW
PETE WILSON; JOSEPH SANDOVAL;
OPINION
JAMES GOMEZ, Director,
Department of Correction; KYLE S.
MCKINSEY; KEVIN CARRUTH; DAVID
TRISTAN; MARISELA MONTES,
Deputy Director of the Parole and
Community Services Division,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted
June 9, 1997--San Francisco, California

Filed August 27, 1997

Before: Alfred T. Goodwin, Dorothy W. Nelson, and
Stephen 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, Prison
Law 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 of
America.

_________________________________________________________________
OPINION

GOODWIN, Circuit Judge:

California state officials appeal an injunction entered in a
class action brought by California state prison inmates and
parolees with disabilities, who sought relief for violations of
the Americans with Disabilities Act ("ADA"), 42 U.S.C.
S 12131-34, and the Rehabilitation Act of 1973 ("RA"), 29
U.S.C. S 794. The district court denied the defendants' motion
for summary judgment based on the Eleventh Amendment,
found that the defendants had violated both statutes, and
entered a remedial order and injunction directing them to
develop 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 state
prison inmates and parolees with disabilities sued California
state officials in their official capacities, seeking injunctive
relief for violations of the RA and the ADA in state prisons.
The parties stipulated that some prison facilities lack adequate
emergency evacuation plans for prisoners with disabilities,
that the range of vocational programs for disabled inmates is
more limited than the range provided for non-disabled prison-
ers, and that some disabled inmates have been improperly
classified for work and educational purposes so as to deny
them 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 to
state prisons and that the Eleventh Amendment bars this suit
in federal court.

II. JURISDICTION

We address first the plaintiffs' contentions that we lack
jurisdiction to consider the appeal of the injunction. See
Bender 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. . . .") (internal
quotations omitted). Although we previously denied the
defendants' petition to proceed with the appeal under 28
U.S.C. S 1292(b), which permits immediate appeal of an
order if it "involves a controlling question of law as to which
there is substantial ground for difference of opinion and . . .
an immediate appeal . . . may materially advance the ultimate
termination 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." 28
U.S.C. S 1292(a)(1).

[1] The plaintiffs assert that our previous discretionary
denial 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 under
S 1292(a) are "by right," while those under S 1292(b) are "by
permission." See Edwards v. Director, Office of Workers'
Comp. Progs., 932 F.2d 1325, 1328 (9th Cir. 1991). We have
held that a denial of permission to appeal underS 1292(b)
does not foreclose appeal under S 1292(a), where a litigant
can 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. Emerald
Lady, 990 F.2d 1086, 1088-90 (8th Cir. 1993) (reaching ques-
tion of jurisdiction under S 1292(a) after denial of permissive
appeal 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 they
are contained merely requires the defendants to submit
detailed plans for complying with the ADA and RA and is
thus not an "injunction" within the meaning ofS 1292(a)(1).
That the district court titled its order an "injunction," and that
the parties might have understood it as such, does not end our
inquiry. "In determining the appealability of an interlocutory
order under 28 U.S.C. S 1292(a)(1), we look to its substantial
effect rather than its terminology." Tagupa v. East-West Ctr.,
Inc., 642 F.2d 1127, 1129 (9th Cir. 1981) (internal quotations
omitted). We thus must decide whether the district court's
order 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 is
reviewable 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.2d
204, 209-11 (2d Cir. 1980) (order to submit plan to improve
prison legal resources); Hoots v. Pennsylvania, 587 F.2d
1340, 1348-51 (3d. Cir. 1978) (order to submit plan to deseg-
regate schools). Such a rule is "consonant with the federal
policy against piecemeal appeals" and "enable[s] the appellate
tribunal to examine the case in the context of a specific reme-
dial regime instead of in a mere abstract posture. " Frederick
L. v. Thomas, 557 F.2d 373, 379-80 (3d Cir. 1977).

[3] Our sister circuits have recognized two exceptions to
the rule that orders requiring merely the development of a
remedial scheme are not appealable injunctions under
S 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 sufficiently
specifies the content of the plan to be submitted. See Grose-
close, 788 F.2d at 360; Spates, 619 F.2d at 209; Hoots, 587
F.2d at 1349 ("controlling factor [is] whether the order speci-
fie[s] the nature, requirements and extent of the relief to be
afforded by the plan to be submitted"); see also United States
v. Alabama, 828 F.2d 1532, 1536-38 (11th Cir. 1987) (deter-
mining appealability under S 1291). An appellate court will
lack jurisdiction under S 1292(a)(1) "when important issues
regarding the nature and extent of the relief . . . still remain
to be resolved and are dependent on the particular circum-
stances of the case as it would develop in the proceedings
subsequent to the entry of the order." Groseclose, 788 F.2d at
360.

[4] The Third Circuit has held that where delaying the
appeal would not "clarify the questions on appeal " and where
the exact specifications of the plan would not "alter in a mate-
rial manner the issues that would be presented to the court of
appeals," an appeal of an order mandating the development of
a plan may proceed under S 1292(a)(1). Frederick L., 557
F.2d at 380. Under this view, an appeal is not premature if the
plan ultimately submitted will not change the "appellate
perspective." Id. at 381.

[5] This appeal meets both of these exceptions. First, the
district court prescribed the contents of the plan with some
specificity. It ordered that "as a component of the [plan], the
[Department of Corrections] will cluster class members with
certain disabilities at designated institutions and parole
facilities." Armstrong v. Wilson, No. C-94-2307-CW, at 2-3
(N.D. Cal. Sept. 20, 1996). The court further directed that the
plan address specific substantive concerns of the disabled
inmates such as disability grievance procedures, reception
center 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 be
unknown, we conclude that the district court's order makes
the content and scope of the remedial scheme sufficiently
clear to enable appellate review. See Frederick L., 557 F.2d
at 381 ("The precise ingredients of the plan . . . will have no
. . . metamorphosizing effect on our understanding of this
case.").

[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 remedial
order: whether the ADA and RA apply to state prison
inmates. See id. We can answer this purely legal question
whether or not a detailed remedial scheme has been formu-
lated.

[8] In light of the content of the district court's order and
the scope of the defendants' appeal, we conclude that we have
jurisdiction under 28 U.S.C. S 1292(a)(1) to entertain this
appeal and thus proceed to discuss the merits of the defen-
dants' claim that the ADA and RA do not apply to state prison
inmates.

III. APPLICATION OF THE STATUTES TO
       STATE PRISONS

[9] We have previously applied both the ADA and RA in
the state prison context. In Duffy v. Riveland, 98 F.3d 447,
453-56 (9th Cir. 1996), we held that a prison inmate may state
a claim under both the RA and the ADA that he was improp-
erly excluded from participation in, and denied the benefits
of, a prison service, program, or activity on the basis of his
physical handicap. In Bonner v. Lewis, 857 F.2d 559, 562 (9th
Cir. 1988), we held that the RA applies to state prisons on the
basis 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 failed
to raise the issues of federalism and comity that the defen-
dants present here. We decline to institute en banc traffic to
retreat from our previous position. Even in light of recognized
federalism concerns, we conclude that the plain language of
the ADA and RA, and our prior interpretations of that lan-
guage, support application of the statutes to state prisons. We
thus join the Third and Seventh Circuits, each of which
recently have held that both statutes apply to state correctional
facilities. 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.3d
481 (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 the
participation in, be denied the benefits of, or be subjected to
discrimination 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 the
operations of . . . a department, agency, special purpose dis-
trict, or other instrumentality of a State or of a local
government." 29 U.S.C. S 794(b). This language suggests that
the act applies broadly to all aspects of state and local gover-
nance. Moreover, we have interpreted this precise language as
evincing Congress's intent to apply the RA to " any program
or activity receiving Federal financial assistance, " including
state prisons. See Bonner, 857 F.2d at 562 (internal quotations
omitted). We also held in Bonner that prison disciplinary
hearings 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 such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity."
42 U.S.C. S 12132. The act defines "public entity" as "any
State or local government [and] any department, agency, spe-
cial purpose district, or other instrumentality of a State or
States or local government." 42 U.S.C. S 12131(1). This lan-
guage encompasses all facets of state government including
prison administration. We agree with the Seventh Circuit's
conclusion that although "[i]ncarceration itself is hardly a
`program' or `activity' to which a disabled person might wish
access, . . . there is no doubt that an educational program is
a program, and when it is provided by and in a state prison
it is a program of a public entity." Crawford, 115 F.3d at 483
(internal citation omitted). In addition, since Congress has
directed that the ADA and RA be construed consistently, see
42 U.S.C. S 12134(b), the term "program " in the ADA can
also be read, in light of our prior cases concerning the RA, to
encompass prison activities. See also Collings v. Longview
Fibre 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 ADA
reflects an intent by Congress to exclude prisons or prisoners
from the reach of the statutes. When it modeled the ADA on
the RA, Congress was presumably aware of numerous court
decisions, including Bonner, that had held that the RA applies
to 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 the
Fourth Circuit held that prison officials were entitled to quali-
fied immunity because it was not "clearly established" at the
time of the alleged discrimination that the ADA and the RA
applied to prisons, the defendants contend that the texts of the
statutes do not naturally apply to the prison context. First,
they assert that a prisoner cannot be a "qualified" individual
under the acts because most prison services and programs are
compulsory. See id. at 1347 ("The terms`eligible' and `partic-
ipate' imply voluntariness on the part of an applicant who
seeks 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, inmates
do "qualify" for particular programs and services provided by
the prison system in the sense that they must meet certain eli-
gibility criteria for participation. For example, to qualify for
mental health treatment, inmates must be mentally ill, not
pose a threat to themselves or others, and not have a history
of violence. The defendants' interpretation would immunize
from 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 serve
the state's penological interests, the "services, programs, and
activities" they provide are not "benefits " within the meaning
of these statutes or as that term is ordinarily understood. See
Torcasio, 57 F.3d at 1347. Some services and programs that
prisons provide, such as educational and vocational training
and medical attention, can be seen as benefits to the inmates,
however. More significantly, the ADA and the RA do not
merely protect disabled individuals from denial of benefits.
They also prevent disabled individuals from being "excluded
from 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 prison
programs is irrelevant to the issue of whether state prisons
may exclude disabled inmates from programs they provide to
others or discriminate against disabled inmates in the various
aspects 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 do
so in unmistakable terms. See Gregory v. Ashcroft, 501 U.S.
452, 460-61 (1991). In Gregory, the Court refused to apply
the Age Discrimination in Employment Act (ADEA) to state
judges in the absence of an expression of clear congressional
intent because it found that "it is at least ambiguous whether
Congress intended that appointed judges . . . be included." Id.
at 470. In contrast to the ADEA, which expressly excludes
most high-ranking public officials from its reach, see 29
U.S.C. S 630(f), the ADA and RA apply to "any" and "all"
state entities and operations without exclusions. We agree
with the Seventh Circuit's statement that Congress could
hardly have spoken "much more clearly than it did when it
made the [ADA] expressly applicable to all public entities and
defined the term `public entity' to include every possible
agency of state or local government." Crawford, 115 F.3d at
485; see also Yeskey, _______ F.3d _______, 1997 WL 378975, at *5.

[16] Although the defendants' federalism arguments have
some force in the context of prisons, which traditionally are
areas 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 quarantine
law enacted by the state to protect public health under its
police powers. Although "mindful of the general principle
that courts will not second-guess the public health and safety
decisions of state legislatures acting within their traditional
police powers," we concluded that "when Congress has
passed antidiscrimination laws such as the ADA . . ., it is
incumbent 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 against
individuals with disabilities will not be tolerated and it delib-
erately drafted the statutes to include language reaching into
the state sphere. That prison administration may be a core
state 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 and
the RA to prison employment, see White v. Colorado, 82 F.3d
364, 367 (10th Cir. 1996), and we have declined to apply the
Fair Labor Standards Act to most prison jobs, see Hale v. Ari-
zona, 993 F.2d 1387, 1392-98 (9th Cir. 1993), the plaintiffs
in this case seek a qualitatively different form of relief than
the prisoners in those cases sought. These plaintiffs seek basic
access to facilities, inclusion in safety plans, and non-
discriminatory treatment in residential placements and prison
programs. "Rights against discrimination are among the few
rights 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, Congress
intended to eliminate discrimination against individuals with
disabilities, just as it had earlier passed legislation mandating
equal treatment of African-Americans. "If a prison may not
exclude blacks from the prison dining hall and force them to
eat in their cells, and if Congress thinks that discriminating
against a blind person is like discriminating against a black
person," the prison may not exclude the blind person from the
dining hall unless allowing him access would unduly burden
prison 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 in
the state correctional system and affirm the district court's
application of these statutes in entering the injunction.

IV. ELEVENTH AMENDMENT IMMUNITY 

We next address the defendants' contention that sovereign
immunity bars this suit in federal court. We hold that the
exception to Eleventh Amendment immunity set forth in Ex
parte Young, 
209 U.S. 123
 (1908), squarely applies to allow
this action against named individuals in their official capacity.2

[18] Under the doctrine of Ex parte Young, the Eleventh
Amendment is no bar to "federal jurisdiction over a suit
against a state official when that suit seeks only prospective
injunctive 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 against
a state official to enjoin an ongoing violation of federal law
is not a suit against the State." Idaho v. Coeur d'Alene Tribe,
117 S. Ct. 2028, 2047 (1997) (plurality opinion). Even where
the relief sought may have a "substantial ancillary effect on
the state treasury," a suit against state officials may proceed
so 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 against
state officials seeks only prospective injunctive relief to end
continuing violations of the ADA and RA. They nevertheless
argue that because the plaintiffs seek wide-ranging, wholesale
institutional reforms of California's prison system, the suit is
against the state and thus falls outside the bounds of Ex parte
Young. No court, however, has carved out an exception to Ex
parte Young on the basis of the complexity and scope of the
prospective injunctive relief sought. To the contrary, many
courts have permitted suits to proceed under Young where
plaintiffs sought comprehensive relief similar to the reforms
the plaintiffs seek here. See, e.g., Committee to Save
Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305,
307, 309-10 (9th Cir. 1993) (rejecting Eleventh Amendment
immunity claim where defendants were required to devise a
remedial plan to remove contaminants); Parents for Quality
Educ. 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 other
grounds, 986 F.2d 206 (7th Cir. 1993). We, too, see no basis
for creating such an exception.

[20] The defendants also maintain that Ex parte Young is
limited to violations of federal constitutional law and does not
permit suits to remedy statutory violations. This argument is
without merit. We have held squarely that Young applies to
suits alleging violations of federal statutes. See Natural
Resources Defense Council v. California Dep't of Transp., 96
F.3d 420, 422-23 (9th Cir. 1996) (stating that Young "applies
to violations of federal statutory law" and permitting suit
under Young for violations of the Clean Water Act); Almond
Hill Sch. v. United States Dep't of Agric., 768 F.2d 1030,
1034 (9th Cir. 1985) ("The underlying purpose of Ex parte
Young seems to require its application to claims against state
officials for violations of federal statutes.").

[21] Sovereign immunity presents no bar to this suit against
state officials seeking prospective injunctive relief against
ongoing 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. CONCLUSION

Because we conclude that the ADA and RA apply to
inmates and parolees in the state penal system and that this
suit may proceed in federal court under the doctrine of Ex
parte 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 Gates
v. Rowland, 39 F.3d 1439, 1445 (9th Cir. 1994). Because the parties in
that case stipulated that the statute applied, however, we had no occasion
to reach the question.
2 For a related case by prisoners against the State of California squarely
presenting the Eleventh Amendment defense, see our opinion filed this
day in Clark v. California, No. 96-16952 (9th Cir. _______ 1997).