FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS MERCER PELL, 

Plaintiff-Appellant, 

 v. 

AMY NUÑEZ, Director of 

Admissions, State Bar of California, 

Defendant-Appellee.

No. 23-55188 

D.C. No. 

2:22-cv-03732-

MWF-RAO 

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Submitted February 15, 2024*

Pasadena, California

Filed April 30, 2024

Before: Richard C. Tallman, Sandra S. Ikuta, and John B. 

Owens, Circuit Judges.

Opinion by Judge Ikuta

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
2 PELL V. NUÑEZ

SUMMARY**

Fourteenth Amendment/California State Bar

The panel affirmed in part and reversed in part the 

district court’s dismissal of a law student’s action against the 

California State Bar’s Director of Admissions alleging 

violations of the Fourteenth Amendment and California’s 

Unruh Act, and remanded.

The State Bar summarily denied plaintiff’s petition 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. Rather than petitioning the California 

Supreme Court to review the State Bar’s decision, plaintiff 

filed a complaint in federal court.

The panel agreed with the district court that the State 

Bar’s action did not cause plaintiff to suffer a cognizable 

deprivation under federal law. Because the California 

Supreme Court has exclusive original jurisdiction over 

matters of admission, and because the FYLSX is part of the 

admissions process, challenges regarding the FYLSX or its 

authorizing statute must be brought by original petition to 

the California Supreme Court. The State Bar’s denial of 

plaintiff’s petition for a hearing and a waiver of his credit 

forfeiture was taken in the Bar’s advisory role and did not 

result in a cognizable deprivation of a protected right or 

property interest. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
PELL V. NUÑEZ 3

The panel held that because the federal claims arose 

under the Fourteenth Amendment to the Constitution, the 

district court erred by dismissing the case for lack of subject 

matter jurisdiction. However, because plaintiff did not 

adequately allege a deprivation of rights, the panel 

concluded that his federal claims must be dismissed for 

failure to state a claim and affirmed the district court on that 

basis. Because the district court erroneously ruled that it 

lacked original jurisdiction, however, it dismissed plaintiff’s 

state law Unruh Act claim without exercising its 

supplemental jurisdiction discretion pursuant to 28 U.S.C. 

§ 1367(a). The panel reversed the dismissal of plaintiff’s 

Unruh Act claim, and remanded to the district court so that 

it could exercise its discretion over whether to retain 

supplemental jurisdiction or dismiss the claim without 

prejudice so that it may be pursued in state court.

COUNSEL

Susan Barilich, Susan Barilich PC, Glendale, California, for 

Plaintiff-Appellant.

Jean R. Krasilnikoff, Assistant General Counsel; Robert G. 

Retana, Deputy General Counsel; Office of the General 

Counsel, The State Bar of California, San Francisco, 

California; Kirsten R. Galler, Assistant General Counsel; 

Ellin Davtyan, General Counsel; Office of the General 

Counsel, The State Bar of California, Los Angeles, 

California; for Defendant-Appellee.
4 PELL V. NUÑEZ

OPINION

IKUTA, Circuit Judge:

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.

I

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.

“To be certified to the [California] Supreme Court for 

admission and a license to practice law” in the state, students 

who attend an unaccredited law school must pass the 

FYLSX after their first year of law study. Cal. Bus. & Prof. 

Code § 6060(h)(1), (h)(2)(A).1 Students who pass the 

1 Cal. Bus & Prof. Code § 6060 provides:

To be certified to the Supreme Court for admission and 

a license to practice law, a person who has not been 

admitted to practice law [elsewhere] shall . . . . (h)(1) 
PELL V. NUÑEZ 5

examination within its first three administrations after they 

become eligible to take the exam “receive credit for all law 

studies completed to the time the examination is passed.” 

§ 6060(h)(1). Students who do not pass the FYLSX within 

the first three administrations but subsequently pass the 

exam “shall receive credit for one year of legal study only.” 

Id.

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 

Have passed a law students’ examination administered 

by the examining committee after completion of their 

first year of law study. Those who pass the 

examination within its first three administrations [or 

within the first four administrations if an exception 

inapplicable here applies], upon becoming eligible to 

take the examination, shall receive credit for all law 

studies completed to the time the examination is 

passed. Those who do not pass the examination within 

the number of administrations allowed by this 

subdivision, upon becoming eligible to take the 

examination, but who subsequently pass the 

examination, shall receive credit for one year of legal 

study only.

Section 6060(h)(2)(A) exempts students of accredited law schools from 

this requirement if they had “completed at least two years of college 

work prior to matriculating in the accredited law school.”
6 PELL V. NUÑEZ

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.

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.

Pell filed a complaint against Nuñez in federal court. His 

first amended complaint sought declaratory and injunctive 

relief, alleging that Nuñez, in her official capacity, violated 

Pell’s Fourteenth Amendment rights to equal protection, 

substantive due process, and procedural due process.2 It also 

sought damages from Nuñez individually for an alleged 

2 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. As to substantive due process, Pell 

alleges that Nuñez “arbitrarily deprived Plaintiff of property in the form 

of law school credits by misinterpreting and misapplying Cal. Bus. & 

Professions Code § 6060(h)(1) and thereby delaying significantly his 

ability to complete law school and take the California Bar Exam.” Pell’s 

procedural due process claim is based on the “constitutionally 

inadequate” “procedures for notice and a hearing before the deprivation 

of Plaintiff’s property interest in his earned law school credits.”
PELL V. NUÑEZ 7

violation of California’s Unruh Civil Rights Act, Cal. Civ. 

Code §§ 51, 52.

Nuñez moved to dismiss the first amended complaint for 

lack of subject matter jurisdiction and for failure to state a 

claim. The district court determined that because Pell failed 

to petition the California Supreme Court to review the State 

Bar’s application of a rule relating to admissions, he did not 

suffer any cognizable deprivation under federal law. 

Relying on Giannini v. Committee of Bar Examiners of the 

State Bar of California, 847 F.2d 1434, 1435 (9th Cir. 1988) 

(per curiam), the district court concluded that it lacked 

subject matter jurisdiction and granted Nuñez’s motion to 

dismiss on that ground. It did not reach Nuñez’s argument 

that Pell failed to state a claim for which relief could be 

granted. Although the district court granted Pell leave to 

amend to bring a facial challenge to the constitutionality of 

section 6060(h)(1), Pell failed to file a second amended 

complaint and the district court entered judgment for Nuñez. 

Pell timely appealed.

II

We agree with the district court that the State Bar’s 

actions did not cause Pell to suffer a cognizable deprivation 

under federal law. 

The California Supreme Court has “exclusive ‘original 

jurisdiction over the . . . process’” of admission to the 

practice of law in California. Kohn v. State Bar of Cal., 87 

F.4th 1021, 1034 (9th Cir. 2023) (en banc) (quoting Smith v. 

Cal. State Bar, 212 Cal. App. 3d 971, 978 (1989)). The 

California State Bar, on the other hand, “is the 

‘administrative arm’ of the California Supreme Court ‘for 

the purpose of assisting in matters of admission and 

discipline of attorneys.’” Id. at 1024 (quoting In re Rose, 22 
8 PELL V. NUÑEZ

Cal. 4th 430, 438 (2000)). “As part of its role . . . the State 

Bar examines candidates’ qualifications, administers the bar 

exam, and certifies candidates to the California Supreme 

Court” as having met the admission requirements. Id. (citing 

Cal. R. Ct. 9.3; Cal. Bus. & Prof. Code §§ 6046, 6060(g)). 

Although some State Bar functions are executed “pursuant 

to powers directly granted by the [California] Legislature,” 

Saleeby v. State Bar, 39 Cal. 3d 547, 559 (1985), “[n]either 

the State Bar of California nor its Board of Governors nor its 

Committee of Bar [E]xaminers has any power to grant or to 

deny admission to the bar. That power is vested in the 

California Supreme Court alone,” Chaney v. State Bar of 

Cal., 386 F.2d 962, 966 (9th Cir. 1967). Because of this, the 

State Bar’s certification of a candidate for admission, or its 

refusal to so certify the candidate, “is legally simply a 

recommendation to the [California Supreme] Court.” Id. 

Because the State Bar’s role “is advisory only,” id., when 

the California Supreme Court reviews a State Bar action, it 

does not “exercise [a] restricted appellate function” over a 

decision having the force of law, but rather exercises its 

“original jurisdictional power” in the first instance, id.

(citing Konigsberg v. State Bar of Cal., 353 U.S. 252, 254 

(1957)). Thus, “[t]he court has exclusive authority to admit 

an applicant regardless of the [State Bar’s] refusal to certify 

him or her.” Margulis v. State Bar of Cal., 845 F.2d 215, 

216 (9th Cir. 1988) (per curiam). On this basis, we have held 

that the State Bar’s “refusal to certify an applicant does not 

deprive an applicant of any rights until the supreme court 

‘expressly or impliedly approves the [State Bar’s] refusal . . . 

so as to . . . have the effect of a denial of admission.’” Id.

(quoting Chaney, 386 F.2d at 966). “Petitioning the supreme 

court for review, therefore, ‘is not a matter of exhausting 

state remedies in respect to an alleged federal right but of 
PELL V. NUÑEZ 9

there being no basis for any alleged federal right to exist as 

to the [State Bar’s] actions until the California Supreme 

Court in the exercise of its original power over admissions 

has allowed these actions to serve as a deprivation.’” Id. 

(quoting Chaney, 386 F.2d at 966).

The California Supreme Court’s inherent authority over 

admission to practice extends to direct review of 

“[d]eterminations and recommendations of the [State Bar] in 

matters of . . . admission” generally. Saleeby, 39 Cal. 3d at 

557; cf. id. at 558–59. For instance, the California Supreme 

Court has authority to consider a challenge to the 

administration of admission fees. Smith, 212 Cal. App. 3d 

at 978. In Smith, the plaintiff argued that his claim against 

the State Bar for refusing to transfer or refund his admission 

fee should have been heard in the trial court instead of being 

dismissed for failure to seek relief in the California Supreme 

Court. Smith rejected this argument, holding that because 

the “[a]dministration of admissions fees obviously is part of 

the admissions process” it was a matter of the California 

Supreme Court’s inherent power. Id. The suit therefore fell 

within the California Supreme Court’s “original jurisdiction 

over the admissions process” and could be brought only “by 

original petition to the [California] Supreme Court.” Id. 

Because the California Supreme Court’s authority over the 

admissions process is plenary, Smith held that it did not 

matter whether administration of admission fees was 

“preliminary to rather than part of the admissions process.” 

Id. Similarly, the fact that admission fees were also 

authorized by statute did not eliminate “the Supreme Court’s 

control of the fees as part of its inherent power over 

admissions.” Id. (citing Hersh v. State Bar, 7 Cal. 3d 241 

(1972) (direct review of annual bar membership fees)).
10 PELL V. NUÑEZ

Like admission fees, the FYLSX is a matter of 

admission. For students who attend unaccredited law 

schools, passing the FYLSX is one of the requirements “[t]o 

be certified to the [California] Supreme Court for admission 

and a license to practice law.” Cal. Bus. & Prof. Code. 

§ 6060. The same statute mandating passage of the FYLSX 

also sets out the admission requirements of good moral 

character, legal education, and passage of the bar exam. Id. 

As in Smith, it does not matter whether the FYLSX 

procedures are “preliminary to rather than part of the 

admissions process,” or that the procedures are authorized 

by statute. 212 Cal. App. 3d at 978. As Pell acknowledged 

in his complaint, the application of section 6060(h)(1) is part 

of the admissions process because it affects his ability to take 

the California Bar Exam and secure a California law license.

Because the FYLSX is part of the admissions process, it 

falls within the California Supreme Court’s “inherent power 

and original jurisdiction.” Id. Therefore, challenges 

regarding the FYLSX or its authorizing statute must be 

brought by original petition to the California Supreme Court. 

If a decision by the State Bar to deny a student full credit for 

his studies resulted in “a refusal of certification by the 

Committee [of Bar Examiners],” it would “legally [be] 

simply a recommendation” to the California Supreme Court. 

Chaney, 386 F.2d at 966. The State Bar’s action would “not 

deprive an applicant of any rights until the supreme court 

‘expressly or impliedly approves the [State Bar’s] refusal’” 

so as to deny the applicant of admission. Margulis, 845 F.2d 

at 216 (quoting id.). Therefore, the State Bar’s denial of 

Pell’s petition for a hearing and waiver of his forfeiture of 

39 credit hours did not deprive Pell of any rights or property 

interest.
PELL V. NUÑEZ 11

III

Because Pell’s claim does not adequately allege a 

deprivation of rights, it is not one for which relief can be 

granted. This conclusion is mandated by our decision in 

Margulis.

In Margulis, the plaintiff sued the State Bar and 

Committee of Bar Examiners, “rais[ing] a plethora of 

constitutional challenges to California Bar Examination 

procedures” after he failed the California Bar Examination 

and the Committee “refus[ed] to certify him as qualified to 

practice law.” Margulis, 845 F.2d at 215–16. The plaintiff 

did not petition the California Supreme Court for review. Id. 

at 216. Given that “the California Supreme Court alone has 

the power to admit someone to the California Bar,” we stated 

that the “Committee’s decision not to certify” the plaintiff 

was “simply of no legal significance.” Id. We held that 

“because [the plaintiff’s] failure to petition for review 

deprived the California Supreme Court of an opportunity to 

rule on his application, his complaint allege[d] no cognizable 

deprivation of federal rights.” Id. at 217. In other words, the 

plaintiff “fail[ed] to state a claim.” Id. at 216 n.2.

That conclusion was correct. A failure to state a claim 

may result from the lack of a “cognizable legal theory” or 

from “an absence of sufficient facts alleged to support a 

cognizable legal theory.” Shroyer v. New Cingular Wireless 

Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting 

Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). 

Because the claims in Margulis challenged actions by the 

Committee of Bar Examiners that were “simply of no legal 

significance,” Margulis, 845 F.2d at 216, those claims did 

not invoke a cognizable legal theory, and the plaintiffs did 

not have a cause of action.
12 PELL V. NUÑEZ

As in Margulis, Pell’s first amended complaint asserts 

several federal law claims against Nuñez in her official 

capacity as the Director of Admissions of the California 

State Bar. Because Pell has not alleged that he petitioned the 

California Supreme Court to review the State Bar’s actions, 

however, nor identified any other manner in which the court 

approved of the State Bar’s decision, Pell has not adequately 

alleged a deprivation of a protected right. See Margulis, 845 

F.2d at 217. By the same token, Pell does not state a claim 

for declaratory or injunctive relief, as his allegations 

regarding the State Bar’s interpretation and application of 

the statutory requirements for admission do not involve “a 

power of deprivation.” See Chaney, 386 F.2d at 966. 

Therefore, we affirm the dismissal of his federal law claims. 

Gianinni, on which the district court relied, is not to the 

contrary. As in Margulis, the plaintiff in Giannini sued the 

Committee of Bar Examiners for the State of California after 

it denied his petition for admission to practice law. Giannini, 

847 F.2d at 1434–35. Like the plaintiff in Margulis, the 

plaintiff in Giannini claimed that the Committee’s denial 

violated his constitutional rights. Id. at 1435. We resolved 

the case just as we had Margulis, holding that because the 

plaintiff had not petitioned the California Supreme Court to 

review the Committee’s decision, “no deprivation ha[d] 

taken place,” and he therefore had “no basis for any claim of 

deprivation under federal law.” Id. We concluded that 

“[t]his prerequisite to federal deprivation operate[d] as a bar 

upon [the plaintiff’s] suit in federal court.” Id.

Although the district court read this language as resting 

on jurisdictional grounds, that reading is not compelled by 

Giannini itself. Giannini did not explain the ground on 

which it affirmed dismissal, much less offer “a ‘close 

analysis’” of “the critical differences between jurisdictional 
PELL V. NUÑEZ 13

and non jurisdictional limitations on causes of action.” U.S. 

ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 

F.3d 1174, 1177 (9th Cir. 2013) (quoting Reed Elsevier, Inc. 

v. Muchnick, 559 U.S. 154, 161 (2010)). Giannini’s lack of 

reasoning places it in the category of “‘drive-by 

jurisdictional rulings’ that should be accorded ‘no 

precedential effect’” on the issue of subject matter 

jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 511 

(2006) (citation omitted). Given that Margulis preceded

Giannini and therefore constituted binding precedent, 

Giannini is better read as reaching the same conclusion as 

Margulis had: that the plaintiff failed to state a claim. See 

Margulis, 845 F.2d at 216 n.2.

By contrast, a holding that we lack subject matter 

jurisdiction would be contrary to long-standing precedent. 

Within the scope granted by the Constitution, “only 

Congress may determine a lower federal court’s subjectmatter jurisdiction,” Eldee-K Rental Props., LLC v. 

DIRECTV, Inc., 748 F.3d 943, 948 (9th Cir. 2014) (brackets 

omitted) (quoting Bowles v. Russell, 551 U.S. 205, 211 

(2007)), and “[f]ederal courts have a[n] . . . obligation to 

exercise the jurisdiction given them,” United States v. State 

Water Res. Control Bd., 988 F.3d 1194, 1208 (9th Cir. 2021) 

(cleaned up). The Constitution grants federal courts 

authority to hear cases involving a federal question, that is, 

those “arising under th[e] Constitution [or] the Laws of the 

United States,” U.S. Const. art. III, § 2, and Congress has 

lodged “original jurisdiction of all civil actions arising under 

the Constitution [or] laws . . . of the United States” in the 

federal district courts. 28 U.S.C. § 1331.

For purposes of § 1331, a district court has jurisdiction 

over an action “arising under” federal law “when a federal 

question appears on the face of the complaint.” City of 
14 PELL V. NUÑEZ

Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020) 

(citation omitted). Pell’s first amended complaint raised 

several questions of federal law, as it alleged that “the 

Defendant’s interpretation and application” of Cal. Bus. & 

Prof. Code § 6060(h)(1) violated his Fourteenth Amendment 

rights to equal protection, substantive due process, and 

procedural due process. “[B]ecause this case arises under 

the Fourteenth Amendment to the Constitution,” the “district 

court had subject matter jurisdiction under 28 U.S.C. 

§ 1331.” Tuscon Woman’s Clinic v. Eden, 379 F.3d 531, 538 

(9th Cir. 2004). The district court also had supplemental 

jurisdiction over Pell’s state law claim. 28 U.S.C. § 1367(a).

We therefore conclude that the district court erred in 

holding it lacked subject matter jurisdiction.3 But that “the 

district court incorrectly indicated that it lacked jurisdiction 

. . . does not compel a reversal.” Janicki Logging Co. v. 

3 The district court also held that it lacked subject matter jurisdiction 

because the Rooker-Feldman doctrine would bar consideration of Pell’s 

claims even if he had unsuccessfully petitioned the California Supreme 

Court before filing the present suit. The Rooker-Feldman doctrine 

“prohibits [lower] federal courts from adjudicating cases brought by 

state-court losing parties challenging state-court judgments.” Reed v. 

Goertz, 598 U.S. 230, 235 (2023). Rooker-Feldman has no application 

here. First, Pell does not allege that he petitioned the California Supreme 

Court to review Nuñez’s adverse determination regarding his law school 

credits, so there is no sense in which he is a “losing part[y] challenging 

[a] state-court judgment[].” Id. Second, to the extent that Pell’s 

complaint challenges the “interpretation and application of a statute” 

(that is, California Business & Professions Code § 6060(h)(1)) such 

challenges do not implicate the Rooker-Feldman doctrine. See id.

(rejecting invocation of Rooker-Feldman where plaintiff’s claims “d[id] 

not challenge . . . adverse state-court decisions themselves, but rather 

target[ed] as unconstitutional the [State] statute they authoritatively 

construed” (cleaned up)). Therefore, Rooker-Feldman did not eliminate 

the district court’s subject matter jurisdiction.
PELL V. NUÑEZ 15

Mateer, 42 F.3d 561, 563 (9th Cir. 1994). “If the decision 

below is correct, it must be affirmed, even if the district court 

relied on the wrong grounds or wrong reasoning.” Cigna 

Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 

412, 418 (9th Cir. 1998) (citation omitted). 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.

IV

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 
16 PELL V. NUÑEZ

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).

AFFIRMED IN PART, REVERSED IN PART, and 

REMANDED.4

4 The costs on appeal are taxed against Pell. See Fed. R. App. P. 39(a)(4). 

Nuñez’s unopposed motion for judicial notice is granted.