FILED

NOT FOR PUBLICATION

MAR 27 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE, No. 17-56110

Plaintiff-Appellee, DC No. CV 15-2478 SVW

v.

REGENTS OF THE UNIVERSITY OF MEMORANDUM*

CALIFORNIA; SUZANNE PERKIN, in her official capacity,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted March 9, 2018 Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and SIMON,** District Judge.

In this interlocutory appeal, The Regents of the University of California (the

“Regents”) and Suzanne Perkin (“Perkin”), the assistant dean of students at the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 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.

Doe sued after UCSB suspended him for two semesters on sexual assault

charges. Doe’s SAC includes a 42 U.S.C. § 1983 claim against Perkin, a Title IX

claim against the Regents, and a petition for a writ of administrative mandamus

under California Code of Civil Procedure § 1094.5 (henceforth, “§ 1094.5

petition”) against the Regents. We reverse the district court’s denial of the

Regents’ motion to dismiss.

1. The Regents first contend that the Eleventh Amendment bars Doe’s §

1094.5 petition. We have jurisdiction over an interlocutory appeal from the denial

of Eleventh Amendment immunity under the collateral order doctrine. P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). Doe’s

argument that the Regents waived their Eleventh Amendment challenge is without

merit; the Regents did not at any point “unequivocally express[]” their intent to

waive said immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

99 (1984).

2 The Eleventh Amendment protects states and state instrumentalities, such as

the Regents, from suit in federal court. Id. at 100; see also BV Eng’g v. Univ. of

Cal., LA, 858 F.2d 1394, 1395 (9th Cir. 1988). Under the Ex parte Young1

exception to the Eleventh Amendment, a party may seek federal 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 apply to such a suit seeking relief under state law,

whether against a state or state official. Pennhurst, 465 U.S. at 117.

Doe’s § 1094.5 petition is a state law claim. The district court denied

Eleventh Amendment immunity because, it concluded, 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. That was error. A § 1094.5 petition is not a

procedural mechanism; it requires a substantive inquiry into whether the university

“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); see Doe v. Univ. of S. Cal., 200 Cal. Rptr. 3d 851, 866–67 (Ct. App.

2016) (discussing the substantive standards of § 1094.5). Doe’s SAC asserts that

1 Ex parte Young, 209 U.S. 123 (1908). 3 his suspension is invalid because it does not meet the § 1094.5 standards. The

Eleventh Amendment therefore bars Doe’s § 1094.5 petition against the Regents.2

2. The Regents next contend that the district court should have dismissed

Doe’s § 1983 and Title IX claims as precluded because Doe failed to exhaust

judicial remedies. Although we do not independently have appellate jurisdiction

over this issue, resolution of the district court’s judicial exhaustion decision is so

“inextricably intertwined” with its Eleventh Amendment decision that we may

exercise pendent appellate jurisdiction. Meredith v. Oregon, 321 F.3d 807, 814

(9th Cir. 2003).

Under federal common law, federal courts accord preclusive effect to state

administrative proceedings that meet the fairness requirements of United States v.

Utah Constr. & Mining Co., 384 U.S. 394 (1966). Miller v. County of Santa Cruz,

39 F.3d 1030, 1032–33 (9th Cir. 1994). 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

2 The district court also erred in “interpret[ing]” the writ petition, which names the Regents as defendant, to in effect name Perkin. Regardless, our conclusion that the § 1094.5 writ is a state law claim bars Doe from bringing it in federal court against either the Regents or Perkin. Pennhurst, 465 U.S. at 117. 4 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 courts have also 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 Court, 551

P.2d 410, 421 (Cal. 1976) (in bank)).

Accordingly, because Doe has not yet filed a valid § 1094.5 petition, Doe

has not exhausted his judicial remedies. Claim preclusion therefore bars Doe’s §

5 1983 claim against Perkin and Title IX claim against the Regents. The district

court erred in not dismissing the claims.3

• ! •

The judgment of the district court is reversed and the case remanded to the

district court with instructions to dismiss Doe’s SAC with prejudice.

REVERSED and REMANDED with directions.

3 Because we hold that the district court should have dismissed Doe’s SAC in its entirety, we do not reach the Regents’ alternative argument that the district court should have abstained pursuant to Younger v. Harris, 401 U.S. 37 (1971). We 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). 6