Ninth Circuit Nixes Octogenarian Law Student’s Course Credit Bid

An 81-year-old law student at an unaccredited California school, who petitioned for an exception to take a bar admissions test late because he was helping his wife through her liver transplant, failed to make a claim under federal law, the Ninth Circuit ruled Tuesday.

The California State Bar, because it serves only an advisory role, can’t deprive an applicant of rights until the California Supreme Court approves or rejects the state bar’s recommendations, Judge Sandra S. Ikuta of the US Court of Appeals for the Ninth Circuit wrote.

The case centers on Douglas Mercer Pell, a student at the unaccredited American Institute of Law. Pell in 2020 took the First Year Law Students Exam, which is a necessary first step toward bar admission for students at unaccredited schools.

Pell passed the exam on his first try, but because he didn’t take it within a strict administrative window, he effectively lost 39 credit hours of coursework he’d completed. The State Bar of California denied his attempt to get an exception for the denial of his credit hours; Pell took his claims to federal district court, alleging that the state bar violated his Fourteenth Amendment rights.

“While not entirely clear, Pell’s equal protection claim appears to be based on alleged age discrimination and discrimination against those who attend unaccredited law schools,” Ikuta wrote.

Pell can’t claim he was deprived of his federal rights because he never petitioned the California Supreme Court for review, the Ninth Circuit ruled, affirming the federal district court’s reasoning.

The district court was wrong to rule that it lacked jurisdiction, since Pell raised federal questions in his complaint, the Ninth Circuit said, even though he failed to state a cause of action for the federal questions.

Because federal claims are within the district court’s purview, that court has supplemental authority over Pell’s claims that State Bar Director Amy Nuñez violated California civil rights law, the Ninth Circuit wrote.

Those claims will go back to the district court, where a judge will decide whether to keep jurisdiction over the claims or send them to state court, the Ninth Circuit wrote.

Judges Richard C. Tallman and John B. Owens also sat on the panel.

Attorney Susan Barilich, of Glendale, Calif., represents Pell. The State Bar represented itself.

The case is Pell v. Nunez, 9th Cir. App., No. 23-55188, 4/30/24.