Persistence

The United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part and remanded claims brought by a bar applicant against the Director of Admissions of the California State Bar 

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.

The applicant

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.

The test

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.

He petitioned the State Bar for relief

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.

And then sued in federal court, which resulted in dismissal.

We…conclude that the district court erred in holding it lacked subject matter jurisdiction. But that “the district court incorrectly indicated that it lacked jurisdiction. . . does not compel a reversal.”

…Because we conclude that Pell’s federal law claims must be dismissed for failure to state a claim, we affirm the district court’s dismissal of those claims.

But

In addition to his claims under federal law, Pell sued Nuñez in her individual capacity for violations of California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51–52. Because the district court had original jurisdiction over Pell’s federal law claims, it had supplemental jurisdiction to decide this related state law claim. 28 U.S.C. § 1367(a). When a district court “has dismissed all claims over which it has original jurisdiction,” it “may decline to exercise supplemental jurisdiction” over remaining state law claims. § 1367(c)(3).

Here, because the district court ruled that it lacked original jurisdiction, it dismissed all of Pell’s claims without having exercised the discretion afforded by § 1367(c)(3). We may not affirm the district court’s dismissal of Pell’s Unruh Act claim because “[t]he decision to exercise supplemental jurisdiction is within the discretion of the district court and that court must be given an opportunity to make that decision.” Fang v. United States, 140 F.3d 1238, 1244 (9th Cir. 1998) (remanding case to district court to “determine whether it should retain jurisdiction over the state law claims”). We therefore reverse the dismissal of Pell’s Unruh Act claim and “remand to the district court so that it can exercise its discretion over whether to retain jurisdiction . . . or whether to dismiss [the state law claim] without prejudice so that [it] may be pursued in state court.” Koepping v. Tri-Cnty. Metro. Transp. Dist. of Or., 120 F.3d 998, 1006 (9th Cir. 1997). 

(Mike Frisch)