John Doe v. Regents of the University of California, et al.

In this interlocutory appeal, The Regents of the University

of California (“The Regents”) and Suzanne Perkin (“Perkin”),

the assistant dean of students at the University of California

at Santa Barbara (“UCSB”), appeal the district court’s denial

of their motion to dismiss John Doe’s (“Doe”) second

amended complaint (“SAC”) on Eleventh Amendment

immunity, judicial exhaustion, and Younger abstention

grounds. We reverse.

DOE V. U.C. REGENTS 5

I. BACKGROUND

The merits of Doe’s lawsuit are not before us, so we recite

only in brief the factual basis of his claims.1 The procedural

history of the case is more germane to the issues on appeal.

A. Doe’s Suspension

Doe, a male UCSB student, sued The Regents and Perkin

after he was disciplined for the sexual assault of a female

UCSB student, Jane Doe (“Jane”) during a trip to Lake

Tahoe. Doe denies that he assaulted Jane and instead

contends that the sexual encounter, which occurred in June

2014, was consensual.

On November 6, 2014, UCSB notified Doe that he had

been charged with sexual assault in violation of the

university’s code of conduct. A week later, Doe had a

meeting with Perkin, at which she read Doe a statement that

Jane had written. On November 25, UCSB informed Doe

that on December 11, an adjudicatory committee would hold

a hearing on the assault charges. Two days before the

hearing, Perkin provided Doe with an investigative report that

she produced based on interviews with Doe, Jane, and other

witnesses. The committee later held a second hearing, on

December 19, before which Perkin completed a second

investigative report. Shortly after the second hearing, the

committee found Doe responsible for Jane’s sexual assault

and recommended the university suspend him for two

quarters. In January 2015, Vice Chancellor for Student

Affairs Michael Young upheld the decision and, on

1 The factual allegations in the SAC are presumed true. Knievel v.

ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

6 DOE V. U.C. REGENTS

February 16, 2015, UCSB Chancellor Henry Yang denied

Doe’s appeal.

B. Complaint and First Motion to Dismiss

In April 2015, Doe filed this action against The Regents,

alleging that the committee had “no basis” for its decision.2

Doe brought a Title IX claim,3 a claim under 42 U.S.C.

§ 1983 for violation of his procedural due process rights, and

numerous state law claims. Doe alleged that UCSB

discriminated against him because of his male sex via a “nonexhaustive

list” of wrongful actions, including preventing him

from presenting character evidence and disciplining him on

the basis of investigative reports that “present[ed] a skewed

rendition of the facts[.]” Doe also alleged, inter alia, that

UCSB lacked jurisdiction over the Lake Tahoe trip, and that

UCSB intentionally scheduled the December 19 hearing on

a day when Doe’s attorney was unavailable.

The Regents moved to dismiss, arguing that Doe’s lawsuit

was barred in its entirety because he had not petitioned for a

writ of administrative mandamus under California Code of

Civil Procedure § 1094.5 (“§ 1094.5 petition” or “writ

petition”) and had therefore not exhausted his judicial

remedies. After supplemental briefing, the district court

granted the motion, concluding that Doe’s state law claims

were barred because he had not yet filed a § 1094.5 writ

petition. The court rejected The Regents’ argument that

Doe’s § 1983 claim was also barred for failure to exhaust

2 The initial complaint did not name Perkin as a defendant.

3 Title IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681–1688.

DOE V. U.C. REGENTS 7

judicial remedies. Still, the court dismissed the § 1983 claim

on Eleventh Amendment grounds and the Title IX claim for

failure to state a claim.

C. First Amended Complaint and Second Motion to

Dismiss

Doe filed a first amended complaint (“FAC”), which

included a § 1094.5 writ petition. Doe alleged that UCSB

held an unfair hearing and that its disciplinary decision was

not supported by the evidence. Doe asserted Title IX and

declaratory relief claims against The Regents and substituted

Perkin as the sole defendant on his § 1983 due process claim.4

Doe also added new factual allegations. For example, he

alleged that UCSB exhibited gender bias against Doe as a

result of “mounting pressure” from the U.S. Department of

Education, Office of Civil Rights, a campus roundtable on

sexual assault, campus organizations, and a University of

California system-wide task force on sexual assault.

The Regents moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6). The court dismissed with prejudice

the Title IX claim for failure to state a claim, and without

prejudice the § 1983 claim as barred by the Eleventh

Amendment. The court then declined to exercise

supplemental jurisdiction over the § 1094.5 writ claim.

D. Second Amended Complaint and Third Motion to

Dismiss

Doe then filed the SAC, in which he clarified that the

§ 1983 claim was alleged against Perkin in her official

4 Doe did not re-allege the other state law claims.

8 DOE V. U.C. REGENTS

capacity. Doe also re-alleged the § 1094.5 writ petition. The

Regents again moved to dismiss, arguing that the § 1983

claim was barred by the Eleventh Amendment and the

§ 1094.5 writ claim was barred for failure to exhaust judicial

remedies. Before the district court ruled on The Regents’

motion, Doe moved the court to reconsider its dismissal of his

Title IX claim. The court granted the motion. The Regents

then moved to dismiss the reinstated Title IX claim, also

contending that Doe’s § 1094.5 writ petition against The

Regents was barred by the Eleventh Amendment. Thus, the

district court had before it two motions to dismiss.

The court denied both motions. First, the court ruled that

the § 1983 claim against Perkin in her official capacity did

not run afoul of the Eleventh Amendment, nor was Perkin

entitled to qualified or quasi-judicial immunity. Second, the

court rejected The Regents’ contention that the § 1094.5

petition was precluded. The court reasoned that because the

SAC included the § 1094.5 writ petition, Doe had exhausted

his judicial remedies. Third, the court concluded that

abstention under Younger v. Harris, 401 U.S. 37 (1971), was

not warranted because there were no ongoing state

proceedings.

The Regents moved for reconsideration, contending that

the Eleventh Amendment bars a plaintiff from bringing a

state law claim, including a § 1094.5 writ petition, against

The Regents in federal court. The court denied the motion.

First, the court concluded that a § 1094.5 petition is a

procedural mechanism that “functions as a vehicle for federal

injunctive relief for Eleventh Amendment immunity

purposes”; thus, the Eleventh Amendment did not bar it.

Second, the court “interpret[ed]” the § 1094.5 petition against

The Regents as a claim “against the University officials who

DOE V. U.C. REGENTS 9

have the power to effectuate any prospective injunctive relief

ordered by the court[,]” and therefore concluded that it was

permitted under the Ex parte Young, 209 U.S. 123 (1908),

exception to Eleventh Amendment immunity. The Regents

took an interlocutory appeal, and a motions panel of our court

stayed district court proceedings.5

II. STANDARD OF REVIEW

A state instrumentality’s Eleventh Amendment sovereign

immunity and whether a plaintiff exhausted judicial remedies

are both questions of law reviewed de novo. Micomonaco v.

Washington, 45 F.3d 316, 319 (9th Cir. 1995) (sovereign

immunity); Miller v. County of Santa Cruz, 39 F.3d 1030,

1032 (9th Cir. 1994) (exhaustion).

III. DISCUSSION

On appeal, The Regents contend that the district court

should have dismissed Doe’s entire complaint because the

Eleventh Amendment bars the § 1094.5 writ claim and,

because Doe has thus not filed a valid § 1094.5 petition, his

failure to exhaust judicial remedies bars the § 1983 and Title

IX claims. Alternatively, The Regents contend that the

district court should at least have abstained under Younger.

We consider The Regents’ arguments seriatim.

A. Eleventh Amendment Immunity

We have jurisdiction over an interlocutory appeal from

the denial of Eleventh Amendment immunity under the

5 A different motions panel denied The Regents’ related petition for

a writ of mandamus.

10 DOE V. U.C. REGENTS

collateral order doctrine. P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).

Doe, however, contends that The Regents waived the

argument that Eleventh Amendment immunity bars the

§ 1094.5 petition. We disagree. A state’s waiver of Eleventh

Amendment immunity and consent to suit must be

“unequivocally expressed.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 99 (1984); accord Actmedia, Inc. v.

Stroh, 830 F.2d 957, 963 (9th Cir. 1986) (“The test for

finding waiver by a state of its eleventh-amendment

immunity is ‘stringent.’”) (quoting Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 241 (1985)), disapproved of on other

grounds by Retail Digital Network, LLC v. Prieto, 861 F.3d

839, 841–42 (9th Cir. 2017) (en banc). For evidence of

waiver, Doe points only to The Regents’ acknowledgement

in a hearing on the first motion to dismiss that they had “yet

to assert” Eleventh Amendment immunity. Instead, The

Regents first argued that Doe’s entire complaint should be

dismissed for failure to exhaust judicial remedies. That was

not an unequivocal waiver. We therefore consider The

Regents’ argument.

The Eleventh Amendment protects states and state

instrumentalities, such as The Regents, from suit in federal

court. Pennhurst, 465 U.S. at 100; see also BV Eng’g v.

Univ. of Cal., LA, 858 F.2d 1394, 1395 (9th Cir. 1988)

(affirming that the University of California is a state

instrumentality protected by sovereign immunity). Under the

Ex parte Young exception to that Eleventh Amendment bar,

a party may seek prospective injunctive relief against an

individual state officer in her official capacity. Agua Caliente

Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045

(9th Cir. 2000). However, the Young exception does not

DOE V. U.C. REGENTS 11

apply when a suit seeks relief under state law, even if the

plaintiff names an individual state official rather than a state

instrumentality as the defendant. Pennhurst, 465 U.S. at 117.

Those Eleventh Amendment principles require dismissal

of Doe’s § 1094.5 writ petition, which is a state law claim.

The district court erred when it determined that Doe’s

§ 1094.5 petition was not a state law claim, but rather a

“state-law procedural mechanism” and “vehicle” for Doe’s

federal claims. On the contrary, a § 1094.5 petition raises

substantive state law claims. Kay v. City of Rancho Palos

Verdes, 504 F.3d 803, 809 (9th Cir. 2007) (“Writs of mandate

are used under California law ‘for the purpose of inquiring

into the validity of any final administrative order . . . .’”)

(quoting Cal. Civ. Proc. Code § 1094.5(a)).

For example, the § 1094.5 writ petition permits a

substantive inquiry into whether an administrative body

“proceeded without, or in excess of, jurisdiction; whether

there was a fair trial; and whether there was any prejudicial

abuse of discretion.” Cal. Civ. Proc. Code § 1094.5(b). Doe

raises those same substantive § 1094.5 claims in the SAC,

alleging that his suspension is invalid because UCSB did not

grant him a fair hearing, exceeded its jurisdiction, and

“committed a prejudicial abuse of discretion,” among other

allegations. California state courts have also developed a

body of substantive case law around § 1094.5. See, e.g., Doe

v. Regents of the Univ. of Cal., 210 Cal. Rptr. 3d 479,

499–500 (Ct. App. 2016); Doe v. Univ. of S. Cal., 200 Cal.

Rptr. 3d 851, 866–77 (Ct. App. 2016); Am. Tower Corp. v.

City of San Diego, 763 F.3d 1035, 1057 (9th Cir. 2014).

In further support of this conclusion, we note that Doe

requests fees pursuant to California Government Code

12 DOE V. U.C. REGENTS

§ 800(a), which permits a plaintiff to recover attorney’s fees

when the court finds that a public entity acted arbitrarily and

capriciously “under this code or under any other provision of

state law.” (emphasis added). The only state law claim in the

SAC is the § 1094.5 petition. Ultimately, if Doe’s § 1094.5

claims were to succeed on their merits, a federal court would

have to grant injunctive relief against a state instrumentality

“on the basis of state law” in violation of the Eleventh

Amendment. Pennhurst, 465 U.S. at 106. That Doe needed

to bring the § 1094.5 petition to exhaust judicial remedies, as

discussed in the next section, does not render it a mere

procedural mechanism.

The Eleventh Amendment therefore bars Doe’s § 1094.5

petition against The Regents and the district court should

have dismissed it with prejudice.6

B. Judicial Exhaustion

The Regents contend that because Doe’s § 1094.5 petition

was barred from federal court, the district court also should

have dismissed Doe’s § 1983 and Title IX claims for failure

to exhaust judicial remedies. Recognizing that we have not

held that the denial of a motion to dismiss on judicial

6 The district court also erred in “interpret[ing]” the writ claim, which

names only The Regents as defendant, to name Perkin. The Ex parte

Young exception applies only when the plaintiff names an individual state

official. See S. Pac. Transp. Co. v. City of L.A., 922 F.2d 498, 508 (9th

Cir. 1990). We have permitted plaintiffs leave to amend to conform their

pleading with Young, see Ariz. Students’ Ass’n v. Ariz. Bd. of Regents,

824 F.3d 858, 865–66 (9th Cir. 2016), but our conclusion that the § 1094.5

petition is a state law claim bars Doe from bringing the writ petition in

federal court against either The Regents or Perkin and means such an

amendment would be futile.

DOE V. U.C. REGENTS 13

exhaustion grounds is independently appealable, The Regents

ask us to exercise pendent appellate jurisdiction over that

portion of the district court’s order. Although Doe does not

contest jurisdiction, we have an independent obligation to

consider our own appellate jurisdiction. Couch v. Telescope

Inc., 611 F.3d 629, 632 (9th Cir. 2010).

Under the doctrine of pendent appellate jurisdiction, we

may review an otherwise non-appealable ruling when it is

“‘inextricably intertwined’ with or ‘necessary to ensure

meaningful review of’ the order properly before us.”

Meredith v. Oregon, 321 F.3d 807, 812–13 (9th Cir. 2003)

(quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51

(1995)). The first prong – on which The Regents rely – is

“narrowly construed.” Id. at 813. “[T]he legal theories . . .

must either (a) be so intertwined that we must decide the

pendent issue in order to review the claims properly raised on

interlocutory appeal, or (b) resolution of the issue properly

raised on interlocutory appeal necessarily resolves the

pendent issue.” Cunningham v. Gates, 229 F.3d 1271, 1285

(9th Cir. 2000) (citation omitted).

In this case, our conclusion that The Regents are entitled

to Eleventh Amendment immunity – the issue properly raised

on appeal – also necessarily resolves whether Doe has

exhausted his judicial remedies (and means that he has not).

We therefore exercise pendent appellate jurisdiction over The

Regents’ appeal from the district court’s order denying

dismissal on judicial exhaustion grounds.

We also agree with The Regents that Doe’s § 1983 and

Title IX claims are precluded because he has failed to exhaust

judicial remedies by filing a § 1094.5 writ petition in state

14 DOE V. U.C. REGENTS

court.7 Under federal common law, federal courts accord

preclusive effect to state administrative proceedings that meet

the fairness requirements of United States v. Utah

Construction & Mining Co., 384 U.S. 394 (1966). See Miller

v. Cty. of Santa Cruz, 39 F.3d at 1032–33. We evaluate the

fairness of a state administrative proceeding by resort to both

the underlying administrative proceeding and the available

judicial review procedure. See Olson v. Morris, 188 F.3d

1083, 1086–87 (9th Cir. 1999). A § 1094.5 petition for a writ

of administrative mandamus provides “an adequate

opportunity for de novo judicial review.” Miller, 39 F.3d at

1033 (citing Eilrich v. Remas, 829 F.2d 630, 632 (9th Cir.

1988)); see also Kenneally v. Lungren, 967 F.2d 329, 333

(9th Cir. 1992) (holding that the § 1094.5 procedure provided

the plaintiff a “meaningful opportunity” to raise constitutional

claims).

Because California has adopted the Utah Construction

standard, we give preclusive effect to a state administrative

decision if the California courts would do so. Miller, 39 F.3d

at 1032–33. In California, “[e]xhaustion of judicial remedies

. . . is necessary to avoid giving binding ‘effect to [an]

administrative agency’s decision[.]’” Johnson v. City of

Loma Linda, 5 P.3d 874, 879 (Cal. 2000) (emphasis omitted)

(quoting Briggs v. City of Rolling Hills Estates, 47 Cal. Rptr.

2d 29, 33 (Ct. App. 1995)). A party must exhaust judicial

remedies by filing a § 1094.5 petition, the exclusive and

“established process for judicial review” of an agency

decision. Id. at 880 (citing Westlake Cmty. Hosp. v. Superior

7 Doe’s contention that The Regents forfeited the exhaustion

argument by not raising it in the district court, lacks merit. The Regents

raised § 1094.5 judicial exhaustion in both their motion to dismiss the

SAC, and their motion for reconsideration.

DOE V. U.C. REGENTS 15

Court, 551 P.2d 410, 421 (Cal. 1976) (in bank)). UCSB’s

suspension of Doe is the sort of “adjudicatory, quasi-judicial

decision” that is subject to the judicial exhaustion

requirement. Y.K.A. Indus., Inc. v. Redev. Agency of San

Jose, 94 Cal. Rptr. 3d 424, 444 (Ct. App. 2009).

It is undisputed that Doe has not filed a § 1094.5 petition

in state court. Although a plaintiff is not required by statute

to file a § 1094.5 petition in state court, in this case the

Eleventh Amendment bars Doe from filing his writ petition

in federal court. Therefore, Doe has not exhausted his

judicial remedies. Because the California courts would thus

accord preclusive effect to UCSB’s administrative decision,

we must do the same. The district court should have

dismissed without prejudice8 Doe’s § 1983 and Title IX

claims.9

• ! •

The judgment of the district court is reversed and the case

remanded to the district court with instructions to dismiss

Doe’s § 1094.5 writ claim with prejudice, but without

8 The Regents represent that the statute of limitations on Doe’s

§ 1094.5 writ claim has not yet run. See Lasko v. Valley Presbyterian

Hosp., 225 Cal. Rptr. 603, 606 (Ct. App. 1986) (holding that four-year

statute of limitations applies to § 1094.5 writ claims).

9 Because we hold that the district court should have dismissed Doe’s

SAC in its entirety, we do not reach The Regents’ argument that the

district court should have abstained pursuant to Younger. We therefore

also need not reach the threshold question of whether we would have

pendant appellate jurisdiction over The Regents’ appeal of that order. See

Confederated Salish v. Simonich, 29 F.3d 1398, 1401–03 (9th Cir. 1994)

(holding that an order denying dismissal on Younger grounds is not

immediately appealable on its own).

16 DOE V. U.C. REGENTS

prejudice to refiling in state court, and his § 1983, Title IX,

and declaratory relief claims without prejudice.

REVERSED and REMANDED with directions.