                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JOHN DOE,                                         No. 17-56110
                       Plaintiff-Appellee,
                                                     D.C. No.
                     v.                            2:15-cv-2478
                                                    SVW-JEM
 REGENTS OF THE UNIVERSITY OF
 CALIFORNIA; SUZANNE PERKIN, in
 her official capacity,                           ORDER AND
                Defendants-Appellants.             OPINION


        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

                          Filed June 6, 2018

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

                            Order;
                   Opinion by Judge Tashima


    *
      The Honorable Michael H. Simon, United States District Judge for
the District of Oregon, sitting by designation.
2                      DOE V. U.C. REGENTS

                            SUMMARY**


                             Civil Rights

   The panel reversed the district court’s denial of a motion
to dismiss a second amended complaint on Eleventh
Amendment immunity, judicial exhaustion, and abstention
grounds, and in a concurrently filed order, the panel granted
appellants’ request for publication.

    Plaintiff, a male University of California student, sued
The Regents of the University of California and the assistant
dean of students at University of California, Santa Barbara,
after he was disciplined for the sexual assault of a female
student during a trip to Lake Tahoe. Plaintiff denied the
assault and instead asserted that the sexual encounter was
consensual. He filed an action against The Regents bringing
claims under Title IX, 42 U.S.C. § 1983 and state law, and
also sought, in his second amended complaint, a writ of
administrative mandamus under California Code of Civil
Procedure § 1094.5, alleging that the University held an
unfair hearing and that its disciplinary hearing was not
supported by the evidence.

    The panel first rejected plaintiff’s assertion that The
Regents waived their argument that Eleventh Amendment
immunity barred the § 1094.5 petition. The panel then held
that Eleventh Amendment principles required dismissal of
plaintiff’s § 1094.5 writ petition because the petition involved
a state law claim and the prospective injunctive relief

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    DOE V. U.C. REGENTS                         3

exception to the Eleventh Amendment bar, as set forth in Ex
parte Young, 209 U.S. 123 (1908), does not apply when a suit
seeks relief under state law.

    The panel exercised pendent appellate jurisdiction over
The Regents’ appeal from the order denying dismissal of
plaintiff’s § 1983 claims and Title IX claims for failure to
exhaust judicial remedies. The panel held that plaintiff’s
§ 1983 and Title IX claims were precluded because he failed
to exhaust judicial remedies by filing a § 1094.5 writ petition
in state court. The panel noted that although a plaintiff is not
required by statute to file a § 1094.5 petition in state court, in
this case the Eleventh Amendment barred plaintiff from filing
his writ petition in federal court. Therefore, plaintiff had not
exhausted his judicial remedies.

    The panel reversed the judgment and remanded to the
district court with instructions to dismiss plaintiff’s § 1094.5
writ claim with prejudice, but without prejudice to refiling in
state court, and his § 1983, Title IX, and declaratory relief
claims without prejudice.


                          COUNSEL

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.
4                  DOE V. U.C. REGENTS

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.


                          ORDER

   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.
                     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 “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


    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.
