Pell v. Nuñez

99 F.4th 1128

Douglas Mercer PELL, Plaintiff-Appellant, v. Amy NUÑEZ, Director of Admissions, State Bar of California, Defendant-Appellee.

No. 23-55188

United States Court of Appeals, Ninth Circuit

Submitted February 15, 2024^* Pasadena, California

Filed April 30, 2024

Appeal from the United States District Court for the Central District of California, Michael W. Fitzgerald, District Judge, Presiding, D.C. No. 2:22-cv-03732-MWF-RAO

Susan Barilich, Susan Barilich PC, Glendale, California, for Plaintiff-Appellant.

Jean R. Krasilnikoff, Assistant General Counsel; Robert G. Retana, Deputy General Counsel; Office of the General Counsel, The State Bar of California, San Francisco, California; Kirsten R. Galler, Assistant General Counsel; Ellin Davtyan, General Counsel; Office of the General Counsel, The State Bar of California, Los Angeles, California; for Defendant-Appellee.

Before: Richard C. Tallman, Sandra S. Ikuta, and John B. Owens, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

In this case, a law student petitioned the State Bar of California for a hearing to excuse his delay in taking the First Year Law Students Exam (FYLSX), a prerequisite to bar admission for students attending an unaccredited law school, and to waive the resulting forfeiture of credit for law school courses he had completed. When the State Bar denied the petition, the student brought this action against its Director of Admissions, alleging that the denial violated the student's Fourteenth Amendment rights. Because the California Supreme Court has exclusive original jurisdiction over matters of admission, the State Bar's actions did not result in a cognizable deprivation of rights. Therefore, the federal law claims must be dismissed for failure to state a claim.

I

Douglas Pell is an 81-year-old law student enrolled at the American Institute of Law, an unaccredited law school. He is an applicant to be licensed as an attorney in the State of California.

"To be certified to the [California] Supreme Court for admission and a license to practice law" in the state, students who attend an unaccredited law school must pass the FYLSX after their first year of law study. Cal. Bus. & Prof. Code § 6060(h)(1), (h)(2)(A).¹ Students who pass the examination within its first three administrations after they become eligible to take the exam "receive credit for all law studies completed to the time the examination is passed." § 6060(h)(1). Students who do not pass the FYLSX within the first three administrations but subsequently pass the exam "shall receive credit for one year of legal study only." Id.

Pell did not attempt the FYLSX until his sixth opportunity to do so, in November 2020. According to Pell's complaint, exigent circumstances made it impossible for him to take the exam during one of the prior opportunities after he completed his first year of law school. Specifically, after his wife had a liver transplant, Pell's caregiver role and responsibilities, combined with his age, prevented him from taking those exams. Once his wife's condition stabilized, Pell immediately turned his attention to taking the FYLSX. Pell passed the exam in his first attempt. But because he did not pass the exam within the first three opportunities to do so, under the State Bar's interpretation of section 6060(h)(1), he forfeited 39 credit hours for courses he successfully completed after his first year of law school.

After Pell became aware of this problem, he contacted the State Bar. According to Pell's complaint, the State Bar's representatives did not provide any assistance. Pell then petitioned the Director of Admissions for the State Bar of California, Amy Nuñez. His written petition asked for a hearing to request an exception to the denial of credit hours for courses taken during his second year in law school, and included a declaration under penalty of perjury describing the exigent circumstances that prevented him from taking the FYLSX before the November 2020 exam. The State Bar summarily denied his petition without explanation. Pell did not petition the California Supreme Court to review the State Bar's decision.

Pell filed a complaint against Nuñez in federal court. His first amended complaint sought declaratory and injunctive relief, alleging that Nuñez, in her official capacity, violated Pell's Fourteenth Amendment rights to equal protection, substantive due process, and procedural due process.² It also sought damages from Nuñez individually for an alleged violation of California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 52.

Nuñez moved to dismiss the first amended complaint for lack of subject matter jurisdiction and for failure to state a claim. The district court determined that because Pell failed to petition the California Supreme Court to review the State Bar's application of a rule relating to admissions, he did not suffer any cognizable deprivation under federal law. Relying on Giannini v. Committee of Bar Examiners of the State Bar of California, 847 F.2d 1434, 1435 (9th Cir. 1988) (per curiam), the district court concluded that it lacked subject matter jurisdiction and granted Nuñez's motion to dismiss on that ground. It did not reach Nuñez's argument that Pell failed to state a claim for which relief could be granted. Although the district court granted Pell leave to amend to bring a facial challenge to the constitutionality of section 6060(h)(1), Pell failed to file a second amended complaint and the district court entered judgment for Nuñez. Pell timely appealed.

II

We agree with the district court that the State Bar's actions did not cause Pell to suffer a cognizable deprivation under federal law.

The California Supreme Court has "exclusive 'original jurisdiction over the . . . process' " of admission to the practice of law in California. Kohn v. State Bar of Cal., 87 F.4th 1021, 1034 (9th Cir. 2023) (en banc) (quoting Smith v. Cal. State Bar, 212 Cal. App. 3d 971, 978, 261 Cal.Rptr. 24 (1989)). The California State Bar, on the other hand, "is the 'administrative arm' of the California Supreme Court 'for the purpose of assisting in matters of admission and discipline of attorneys.' " Id. at 1024 (quoting In re Rose, 22 Cal. 4th 430, 438, 93 Cal.Rptr.2d 298, 993 P.2d 956 (2000)). "As part of its role . . . the State Bar examines candidates' qualifications, administers the bar exam, and certifies candidates to the California Supreme Court" as having met the admission requirements. Id. (citing Cal. R. Ct. 9.3; Cal. Bus. & Prof. Code §§ 6046, 6060(g)). Although some State Bar functions are executed "pursuant to powers directly granted by the [California] Legislature," Saleeby v. State Bar, 39 Cal. 3d 547, 559, 216 Cal.Rptr. 367, 702 P.2d 525 (1985), "[n]either the State Bar of California nor its Board of Governors nor its Committee of Bar [E]xaminers has any power to grant or to deny admission to the bar. That power is vested in the California Supreme Court alone," Chaney v. State Bar of Cal., 386 F.2d 962, 966 (9th Cir. 1967). Because of this, the State Bar's certification of a candidate for admission, or its refusal to so certify the candidate, "is legally simply a recommendation to the [California Supreme] Court." Id.

Because the State Bar's role "is advisory only," id., when the California Supreme Court reviews a State Bar action, it does not "exercise [a] restricted appellate function" over a decision having the force of law, but rather exercises its "original jurisdictional power" in the first instance, id. (citing Konigsberg v. State Bar of Cal., 353 U.S. 252, 254, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957)). Thus, "[t]he court has exclusive authority to admit an applicant regardless of the [State Bar's] refusal to certify him or her." Margulis v. State Bar of Cal., 845 F.2d 215, 216 (9th Cir. 1988) (per curiam). On this basis, we have held that the State Bar's "refusal to certify an applicant does not deprive an applicant of any rights until the supreme court 'expressly or impliedly approves the [State Bar's] refusal . . . so as to . . . have the effect of a denial of admission.' " Id. (quoting Chaney, 386 F.2d at 966). "Petitioning the supreme court for review, therefore, 'is not a matter of exhausting state remedies in respect to an alleged federal right but of there being no basis for any alleged federal right to exist as to the [State Bar's] actions until the California Supreme Court in the exercise of its original power over admissions has allowed these actions to serve as a deprivation.' " Id. (quoting Chaney, 386 F.2d at 966).

The California Supreme Court's inherent authority over admission to practice extends to direct review of "[d]eterminations and recommendations of the [State Bar] in matters of . . . admission" generally. Saleeby, 39 Cal. 3d at 557, 216 Cal.Rptr. 367, 702 P.2d 525; cf. id. at 558-59, 216 Cal.Rptr. 367, 702 P.2d 525. For instance, the California Supreme Court has authority to consider a challenge to the administration of admission fees. Smith, 212 Cal. App. 3d at 978, 261 Cal.Rptr. 24. In Smith, the plaintiff argued that his claim against the State Bar for refusing to transfer or refund his admission fee should have been heard in the trial court instead of being dismissed for failure to seek relief in the California Supreme Court. Smith rejected this argument, holding that because the "[a]dministration of admissions fees obviously is part of the admissions process" it was a matter of the California Supreme Court's inherent power. Id. The suit therefore fell within the California Supreme Court's "original jurisdiction over the admissions process" and could be brought only "by original petition to the [California] Supreme Court." Id. Because the California Supreme Court's authority over the admissions process is plenary, Smith held that it did not matter whether administration of admission fees was "preliminary to rather than part of the admissions process." Id. Similarly, the fact that admission fees were also authorized...