UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DOUGLAS MERCER PELL, No. 23-55188

Plaintiff-Appellant, D.C. No. 2:22-cv-03732- v. MWF-RAO AMY NUÑEZ, Director of Admissions, State Bar of California, OPINION

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted February 15, 2024* Pasadena, California

Filed April 30, 2024

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

Opinion by Judge Ikuta * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 PELL V. NUÑEZ

SUMMARY**

Fourteenth Amendment/California State Bar

The panel affirmed in part and reversed in part the district court’s dismissal of a law student’s action against the California State Bar’s Director of Admissions alleging violations of the Fourteenth Amendment and California’s Unruh Act, and remanded. The State Bar summarily denied plaintiff’s petition 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. Rather than petitioning the California Supreme Court to review the State Bar’s decision, plaintiff filed a complaint in federal court. The panel agreed with the district court that the State Bar’s action did not cause plaintiff to suffer a cognizable deprivation under federal law. Because the California Supreme Court has exclusive original jurisdiction over matters of admission, and because the FYLSX is part of the admissions process, challenges regarding the FYLSX or its authorizing statute must be brought by original petition to the California Supreme Court. The State Bar’s denial of plaintiff’s petition for a hearing and a waiver of his credit forfeiture was taken in the Bar’s advisory role and did not result in a cognizable deprivation of a protected right or property interest. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PELL V. NUÑEZ 3

The panel held that because the federal claims arose under the Fourteenth Amendment to the Constitution, the district court erred by dismissing the case for lack of subject matter jurisdiction. However, because plaintiff did not adequately allege a deprivation of rights, the panel concluded that his federal claims must be dismissed for failure to state a claim and affirmed the district court on that basis. Because the district court erroneously ruled that it lacked original jurisdiction, however, it dismissed plaintiff’s state law Unruh Act claim without exercising its supplemental jurisdiction discretion pursuant to 28 U.S.C. § 1367(a). The panel reversed the dismissal of plaintiff’s Unruh Act claim, and remanded to the district court so that it could exercise its discretion over whether to retain supplemental jurisdiction or dismiss the claim without prejudice so that it may be pursued in state court.

COUNSEL 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 th