John Doe v. Regents of the Univ. of Cal.

• Decision Date: 06 June 2018
• Docket Number: No. 17-56110,17-56110
• Citation: 891 F.3d 1147
• Parties: John DOE, Plaintiff–Appellee, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA; Suzanne Perkin, in her official capacity, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

891 F.3d 1147

John DOE, Plaintiff–Appellee,

v.REGENTS OF THE UNIVERSITY OF CALIFORNIA; Suzanne Perkin, in her official capacity, Defendants–Appellants.

No. 17-56110

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2018, Pasadena, California

Filed June 6, 2018

Bradley S. Phillips (argued) and Hailyn J. Chen, Munger Tolles & Olson LLP, Los Angeles, California; Jonathan D. Miller and Alison M. Bernal, Nye Peabody Stirling Hale & Miller LLP, Santa Barbara, California; for Defendants–Appellants.

Scott Michael McLeod (argued) and Christopher J. Mead, Cooper White & Cooper LLP, San Francisco, California; Kimberly C. Lau (argued), Warshaw Burstein LLP, New York, New York; for Plaintiff–Appellee.

Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit Judges, and Michael H. Simon,^* District Judge.

ORDER AND OPINION

The request of Defendants–Appellants for publication is granted. The Memorandum filed March 27, 2018, 2018 WL 1476666, is withdrawn and replaced by the Opinion filed concurrently with this order.

Plaintiff–Appellee’s petition for panel rehearing and rehearing en banc is denied as moot. Further petitions for rehearing may be filed with respect to the Opinion within the time permitted by the Rules.

OPINION

TASHIMA, Circuit 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 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.

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 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 "non-exhaustive 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 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 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, 91 S.Ct. 746, 27 L.Ed.2d 669 (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 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, 28 S.Ct. 441, 52 L.Ed. 714 (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 collateral order doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (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, 104 S.Ct. 900, 79 L.Ed.2d 67 (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, 105 S.Ct. 3142, 87 L.Ed.2d 171 (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’...