FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY JAMGOTCHIAN; THETA 

HOLDING I, INC., 

Plaintiffs-Appellants, 

 v. 

GREGORY L. FERRARO; OSCAR 

GONZALES; DENNIS ALFIERI; 

DAMASCUS CASTELLANOS; 

BRENDA DAVIS; THOMAS C. 

HUDNUT; WENDY MITCHELL; 

KIMBERLY SAWYER; LUIS 

JAUREGUI; RICHARD WILLIAMS, 

Defendants-Appellees, 

and 

CALIFORNIA HORSE RACING 

BOARD, 

Defendant.

No. 23-55735 

D.C. No. 

8:22-cv-01893-

FWS-KES 

OPINION

Appeal from the United States District Court

for the Central District of California

Fred W. Slaughter, District Judge, Presiding
2 JAMGOTCHIAN V. FERRARO

Submitted January 8, 2024*

San Francisco, California

Filed February 26, 2024

Before: Marsha S. Berzon, Johnnie B. Rawlinson, and 

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

SUMMARY**

Civil Rights/Issue Preclusion

The panel reversed the district court’s holding that the 

decision of the California Horse Racing Board (CHRB), the 

state agency responsible for administering all laws, rules, 

and regulations related to horse racing, precluded plaintiffs’ 

42 U.S.C. § 1983 action alleging First Amendment 

violations arising from the refusal to register plaintiffs’ 

thoroughbred racehorse named Malpractice Meuser.

The panel held that the district court erred by concluding 

that the CHRB’s decision precluded plaintiffs’ § 1983 

* The panel unanimously concludes this case is suitable for decision 

without oral argument because we previously heard oral argument in

Case No. 23-55208, a prior appeal involving this same dispute and legal 

issues. We have considered the briefing and argument in Case No. 23-

55208 in our resolution of this appeal.

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

been prepared by court staff for the convenience of the reader.
JAMGOTCHIAN V. FERRARO 3

action. For a state administrative agency decision to have 

the same preclusive effect as a state court judgment, the 

administrative proceeding must be conducted with sufficient 

safeguards and satisfy the requirements of fairness outlined 

in United States v. Utah Construction and Mining Co., 384 

U.S. 394 (1966). Applying those fairness requirements, the 

panel held that the CHRB did not and could not properly 

resolve plaintiffs’ claims because under California law, the 

CHRB lacked the authority to decide constitutional 

claims. Accordingly, the agency decision had no preclusive 

effect. 

The panel held that plaintiffs’ decision not to seek review 

of the CHRB’s decision in state court did not imbue that 

decision with preclusive effect because any requirement that 

plaintiffs go to state court before filing suit under § 1983 

would amount to an improper exhaustion prerequisite.

COUNSEL

John R. Sommer, John R. Sommar Attorney at Law, Villa 

Park, California, for Plaintiffs-Appellants. 

Kayi Okine, Deputy Attorney General; Kenneth C. Jones, 

Supervising Deputy Attorney General; Chris A. Knudsen, 

Senior Assistant Attorney General; Rob Bonta, Attorney 

General of California; Office of the California Attorney 

General, Los Angeles, California; for DefendantsAppellees.
4 JAMGOTCHIAN V. FERRARO

OPINION

BRESS, Circuit Judge:

A dispute over a horse’s name has led to this appeal 

about preclusion. The question is whether a state agency 

decision precludes the plaintiffs’ § 1983 lawsuit. The 

answer is “no.” The agency decision has no preclusive effect 

because the agency lacked jurisdiction to decide the 

constitutional issues that the plaintiffs now raise. Nor were

the plaintiffs required to seek review of the state agency’s 

decision in state court before suing under § 1983. Two of 

our past decisions created some confusion on these settled 

issues in the court below. Taking this opportunity to address

those decisions, we reverse the district court’s dismissal of 

the plaintiffs’ complaint and remand for further proceedings.

I

Plaintiffs Jerry Jamgotchian and Theta Holdings I

(collectively, Jamgotchian) own a thoroughbred racehorse 

named Malpractice Meuser. California law requires that all 

thoroughbreds racing in California be registered with a 

private organization called the Jockey Club of New York. 

See Cal. Bus. & Prof. Code § 19416; Cal. Code Regs. tit. 4, 

§ 1588(a)(1). Jamgotchian wanted to race Malpractice 

Meuser in California, so he applied to register the horse with 

the Jockey Club. 

The Jockey Club refused registration. It concluded that 

the name Malpractice Meuser violated the Principal Rules 

and Requirements of the American Studbook Rule 6.F.11, 

which makes ineligible for use horse names “designed to 

harass, humiliate, or disparage a specific individual.” The 

Jockey Club believed that Malpractice Meuser was named 
JAMGOTCHIAN V. FERRARO 5

for Michael D. Meuser, a Kentucky lawyer specializing in 

equine law. The Club instructed Jamgotchian to seek 

registration for the horse under a different name. 

Jamgotchian did not do so and thus never obtained 

Jockey Club registration. Nevertheless, Jamgotchian sought 

to enter Malpractice Meuser in a race at California’s Los 

Alamitos Race Course. The Los Alamitos Board of 

Stewards denied entry. Stewards “have general authority 

and supervision over all licensees and other persons 

attendant on horses” and are responsible “for the conduct of 

the race meeting[s] in every particular.” Cal. Code Regs. tit. 

4, § 1527. The Stewards informed Jamgotchian that 

Malpractice Meuser was ineligible to race because the horse

was not registered with the Jockey Club, as California 

Business and Professions Code § 19416 requires. 

Jamgotchian appealed the Stewards’ decision to the 

California Horse Racing Board (CHRB), the state agency 

responsible for administering “all laws, rules, and 

regulations affecting horse racing.” Cal. Bus. & Prof. Code 

§ 19440(a)(3). Among other claims, Jamgotchian alleged 

that the Stewards’ enforcement of the Jockey Club 

registration requirement in § 19416 resulted in 

impermissible viewpoint discrimination, contrary to the First 

Amendment. Cf. Matal v. Tam, 582 U.S. 218, 243–44

(2017) (holding that the Lanham Act’s prohibition on 

disparaging trademarks violates the First Amendment). 

Adopting a hearing officer’s written ruling, the CHRB

affirmed the Stewards’ determination that Malpractice 

Meuser could not race absent Jockey Club registration. The 

CHRB also offered commentary on why it believed that

Jamgotchian’s constitutional claims were not colorable. 

But, importantly, the CHRB found that it lacked jurisdiction 
6 JAMGOTCHIAN V. FERRARO

to decide Jamgotchian’s constitutional claims. It explained 

that, because the California Constitution bars state agencies 

from declaring a statute unconstitutional or refusing to 

enforce a statute on constitutional grounds unless an 

appellate court has made that determination, Jamgotchian 

was required to go to court for resolution of his constitutional 

claims. See Cal. Const. Art. III. § 3.5. The CHRB concluded 

that although it regarded Jamgotchian’s constitutional 

claims as “unfounded,” they were “beyond the purview of 

the CHRB in any event.” 

The CHRB decision advised Jamgotchian that a 

California superior court would have authority to address his

constitutional claims. But Jamgotchian did not seek review 

of the CHRB’s decision in state court. See Cal. Code. Civ. 

Proc. § 1094.5 (procedures for writs of mandamus). Under 

California law, a § 1094.5 writ petition is the “ordinary 

means” for challenging a state agency decision in state court. 

Chen Through Chen v. Albany Unified Sch. Dist., 56 F.4th 

708, 724 n.6 (9th Cir. 2022). Instead of filing a § 1094.5 

petition, Jamgotchian brought this lawsuit in federal court

under 42 U.S.C. § 1983 against individual Stewards and 

CHRB members. In his complaint, Jamgotchian advanced 

the constitutional claims he had presented to the CHRB and 

sought a preliminary injunction permitting Malpractice 

Meuser to race in California. 

Although the defendants had not raised the issue, the 

district court requested briefing on whether the CHRB 

proceedings were preclusive of Jamgotchian’s constitutional 

claims. The district court subsequently concluded that 

because the CHRB had already considered Jamgotchian’s 

constitutional claims and Jamgotchian had not challenged 

the CHRB’s decision in state court, the CHRB decision 

precluded Jamgotchian’s § 1983 lawsuit. The district court 
JAMGOTCHIAN V. FERRARO 7

thus found that Jamgotchian was unlikely to succeed on the 

merits and denied his request for a preliminary injunction. 

Jamgotchian appealed. While his appeal was pending, 

the district court dismissed Jamgotchian’s complaint with 

prejudice under Rule 12(b)(6), based on the same preclusion 

rationale by which it had denied Jamgotchian’s request for a 

preliminary injunction. Jamgotchian then separately

appealed that judgment of dismissal.

Because the denial of Jamgotchian’s request for a 

preliminary injunction merged into the final judgment, we 

dismissed Jamgotchian’s first appeal as moot. See, e.g., Am. 

Soc’y of Journalists & Authors, Inc. v. Bonta, 15 F.4th 954, 

959 (9th Cir. 2021). Before us now is Jamgotchian’s second 

appeal, of the judgment of dismissal. We review the district 

court’s dismissal of a complaint under Rule 12(b)(6) de 

novo. Pardini v. Unilever U.S., Inc., 65 F.4th 1081, 1084 

(9th Cir. 2023).

II

The district court erred in concluding that the CHRB 

decision, in combination with Jamgotchian not seeking

review of that decision in state court, precludes this § 1983 

lawsuit.

A

The CHRB’s decision does not preclude Jamgotchian’s 

constitutional claims. Under 28 U.S.C. § 1738, federal 

courts “give the same preclusive effect to state court 

judgments as they would be given in the state in which they 

are rendered.” Miller v. Cnty. of Santa Cruz, 39 F.3d 1030, 

1032 (9th Cir. 1994). This statutory provision does not apply 

to state administrative agency decisions. Univ. of Tenn. v. 

Elliott, 478 U.S. 788, 796–97, 799 (1986). Nevertheless, the 
8 JAMGOTCHIAN V. FERRARO

Supreme Court has held that, as a matter of federal common 

law, federal courts must sometimes accord preclusive effect 

to state agency decisions. See id. at 797–98; see also Astoria 

Fed. Savings & Loan Assoc. v. Solimino, 501 U.S. 104, 107–

08, 110 (1991); Miller, 39 F.3d at 1032; Guild Wineries & 

Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 

1988). Although Congress may direct otherwise (and has 

done so for some statutes), Congress “presumptively 

intends” state agency determinations to have preclusive 

effect in federal court. B & B Hardware, Inc. v. Hargis 

Indus., Inc., 575 U.S. 138, 151 (2015) (citing Elliott, 478 

U.S. at 796–99). This presumption applies to § 1983 suits. 

See Elliott, 478 U.S. at 799. Still, whether an agency 

decision has preclusive effect in a given § 1983 case requires 

a detailed inquiry.

To decide whether federal common law entitles a state 

agency decision to preclusive effect, we proceed in two 

steps. Our “threshold” task is “to determine whether the 

state administrative proceeding was conducted with 

sufficient safeguards to be equated with a state court 

judgment.” Plaine v. McCabe, 797 F.2d 713, 719 (9th Cir. 

1986). For an administrative proceeding to “rise to [this] 

level,” id., it must “satisf[y] the requirements of fairness 

outlined in” the Supreme Court’s decision in United States 

v. Utah Construction and Mining Co., 384 U.S. 394, 422 

(1966). Miller, 39 F.3d at 1032–33 (brackets omitted) 

(quoting Guild Wineries, 853 F.2d at 758). The so-called

Utah Construction “fairness requirements” are: “(1) that the 

administrative agency act in a judicial capacity, (2) that the 

agency resolve disputed issues of fact properly before it, and 

(3) that the parties have an adequate opportunity to litigate.” 

Id. at 1033 (citing Utah Construction, 384 U.S. at 422). The

second prong of Utah Construction—about the capacity of 
JAMGOTCHIAN V. FERRARO 9

the agency to resolve disputed facts—“encompass[es] 

disputed issues of law as well.” Guild Wineries, 853 F.2d at 

759 & n. 7 (citing Eilrich v. Remas, 839 F.2d 630, 633–34 & 

n.2 (9th Cir. 1988)); see also Miller, 39 F.3d at 1032.

If a state agency proceeding satisfies the Utah 

Construction factors, we then turn to state law to “determine 

if, under [state law], the [agency’s] decision would be given 

preclusive effect.” Guild Wineries, 853 F.2d at 761. At this 

step, “we will defer to the considered judgment of the courts 

of [the state] that an unreviewed agency determination . . . is 

equivalent to a state court judgment entitled to res judicata 

and collateral estoppel effect.” Miller, 39 F.3d at 1038. If 

an agency proceeding does not meet the “minimum criteria 

of Utah Construction,” however, we deny preclusive effect, 

state law notwithstanding. Id.; see also id. at 1033 

(explaining that “although a federal court should ordinarily 

give preclusive effect when the state court would do so, 

‘there may be occasions where a state court would give 

preclusive effect to an administrative decision that failed to 

meet the minimum criteria set down in Utah Construction’”)

(quoting Plaine, 797 F.2d at 719 & n.13); Olson v. Morris, 

188 F.3d 1083, 1086 (9th Cir. 1999) (“We have denied 

preclusive effect to administrative agency determinations 

where the plaintiff was denied an adequate opportunity to 

litigate issues regardless of whether the state court would 

have done so.”) (citing Mack v. S. Bay Beer Distribs., Inc., 

798 F.2d 1279, 1283–84 (9th Cir. 1986)).

In this case, the district court’s preclusion determination 

runs aground on Utah Construction’s second prong: the 

requirement that the agency resolve disputed issues of fact 

and law “properly before it.” Guild Wineries, 853 F.2d at 

759 & n.7. “An issue is ‘properly before an administrative 

tribunal if that body has jurisdiction to decide it,’ [as] a 
10 JAMGOTCHIAN V. FERRARO

matter of state law.” Misischia v. Pirie, 60 F.3d 626, 630 

(9th Cir. 1995) (quoting Guild Wineries, 853 F.2d at 759). 

Thus, “[w]e deny preclusive effect, in general, when the 

adjudicator lacks jurisdiction to determine an issue.” Miller, 

39 F.3d at 1038.

Here, the CHRB expressly recognized that it lacked the 

authority to decide Jamgotchian’s constitutional claims,

because California law provides that state agencies like the 

CHRB have “no power” to refuse to enforce a statute on 

constitutional grounds, or to declare a statute 

unconstitutional unless a court has already done so. Cal. 

Const. Art. III, § 3.5(a). Accordingly, the CHRB

acknowledged that it was “prohibited” from refusing to 

enforce the state law Jockey Club registration requirement 

based on the constitutional arguments that Jamgotchian 

raised. The CHRB thus did not, and could not, “properly” 

resolve those disputed issues, as prong two of Utah 

Construction requires. 384 U.S. at 422; see also, e.g., Guild 

Wineries, 853 F.2d at 759.

It is irrelevant for preclusion purposes that the CHRB 

also offered its extra-jurisdictional thoughts on the 

constitutional questions. The inquiry under Utah 

Construction prong two is not whether the state agency 

pontificated on the issues, but whether it “ha[d] jurisdiction 

to decide” them. Misischia, 60 F.3d at 630 (quoting Guild 

Wineries, 853 F.2d at 759). Here, it did not—by its own 

reckoning, as well as on our independent understanding of 

California law. See Cal. Const. Art. III. § 3.5.

Our precedent is clear: because the CHRB “lack[ed]

jurisdiction to determine” Jamgotchian’s constitutional 

claims, “[w]e deny preclusive effect.” Miller, 39 F.3d at 

1038 (citing Shaw v. Calif. Dept. of Alcoholic Beverage 
JAMGOTCHIAN V. FERRARO 11

Control, 788 F.2d 600, 608 (9th Cir. 1986)). And because 

the federal Utah Construction factors are not all satisfied, it 

is beside the point whether California law would accord 

preclusive effect to the CHRB decision in the circumstances 

presented. See Olson, 188 F.3d at 1086; Miller, 39 F.3d at 

1033; Plaine, 797 F.2d at 719 & n.13.1

B

Jamgotchian’s decision not to seek review of the 

CHRB’s ruling in state court did not imbue the CHRB 

decision—or, in reality, itslack of decision—with preclusive 

effect.

The district court’s contrary conclusion effectively 

imposed on Jamgotchian the requirement that he exhaust 

state court remedies to avoid the CHRB decision precluding 

this lawsuit. That requirement is contrary to the “settled 

rule” that “‘exhaustion of state remedies is not a prerequisite 

to an action under 42 U.S.C. § 1983.’” Knick v. Twp. of 

Scott, 139 S. Ct. 2162, 2167 (2019) (quoting Heck v. 

Humphrey, 512 U.S. 477, 480 (1994)); see also id. at 2172–

73 (explaining that “[t]he general rule is that plaintiffs may 

bring constitutional claims under § 1983 without first 

bringing any sort of state lawsuit, even when state court 

actions addressing the underlying behavior are available”) 

1 Our cases have stated that “[b]ecause California has adopted the Utah 

Construction standard, we give preclusive effect to a state administrative 

decision if the California courts would do so.” Doe v. Regents of the 

Univ. of Cal., 891 F.3d 1147, 1155 (9th Cir. 2018) (citing Miller, 39 F.3d 

at 1032–33); see also Plaine, 797 F.2d at 719 n.13. As we have noted, 

if we determine that the Utah Construction factors are not met, the 

agency decision lacks preclusive effect. In this case, however, we 

believe California courts would likewise conclude that the Utah 

Construction factors are not met, as we discuss below.
12 JAMGOTCHIAN V. FERRARO

(quotations omitted); Pakdel v. City & Cnty. of S.F., Cal., 

141 S. Ct. 2226, 2230 (2021) (per curiam); Patsy v. Bd. of 

Regents of Fla., 457 U.S. 496, 501 (1982). If a litigant 

pursues and obtains state court or state agency resolution of 

a matter, those decisions can be preclusive in a later § 1983

lawsuit in federal court. See, e.g., Elliot, 478 U.S. at 796–

97. But by treating the CHRB decision as preclusive of 

issues it could not decide because Jamgotchian did not seek 

mandamus review in state court, the district court imposed 

an exhaustion-type requirement of the sort that contravenes 

Supreme Court precedent on § 1983.

Such an exhaustion requirement springs an improper

“preclusion trap” for § 1983 plaintiffs. Knick, the Supreme 

Court’s recent foray into this area, illustrates the issue. In 

Knick, the Court overturned its earlier rule from Williamson 

County Regional Planning Commission v. Hamilton Bank of 

Johnson City, 473 U.S. 172 (1985), that a property owner 

could not bring a federal Takings Clause claim under § 1983

until a state court had denied his claim for just compensation 

under state law. Id. at 2167–68. The problem with that rule, 

Knick explained, was that in “effectively establish[ing] an 

exhaustion requirement” for § 1983 takings claims,

Williamson County created an untenable “Catch-22.” Id. at 

2167, 2173. The upshot was that a takings plaintiff could 

not “go to federal court without going to state court first,” 

but if he went to state court and lost, his claims would be 

“barred in federal court” by preclusion doctrines. Id. at 

2167. Hence, the “preclusion trap.” Id. This result was not 

permissible because it caused the “guarantee of a federal 

forum” for federal claims cognizable under § 1983 to “ring[]

hollow.” Id. And although Williamson County located its 

decision in an interpretation of the Takings Clause, had it 
JAMGOTCHIAN V. FERRARO 13

phrased its holding in terms of the exhaustion of state 

remedies, “its error would have been clear.” Id. at 2173.

If we accepted the district court’s view that Jamgotchian 

was required to pursue state court mandamus review of the 

CHRB’s decision to prevent that decision from precluding 

his § 1983 claims, Jamgotchian would face a preclusion trap 

akin to the one Knick rejected. Id. The result would be that 

Jamgotchian—with his constitutional claims yet undecided

by any jurisdictionally competent body—could not assert 

those claims in federal court without going to state court 

first. Yet, if the state court rejected Jamgotchian’s claims, 

he would then be precluded from bringing them in federal 

court. See ReadyLink Healthcare, Inc. v. State Comp. Ins. 

Fund, 754 F.3d 754, 761–62 (9th Cir. 2014). Jamgotchian’s 

ability to have his constitutional claims heard in federal court 

would be conditioned on, but simultaneously threatened by, 

his resort to state court. That heads-I-win-tails-you-lose 

result is inconsistent with Knick and the precedent on which 

it is founded.

Our cases have noted that “[i]n California, ‘exhaustion 

of judicial remedies is necessary to avoid giving binding 

effect to an administrative agency’s decision.’” Doe, 891 

F.3d at 1155 (quoting Johnson v. City of Loma Linda, 5 P.3d 

874, 879 (Cal. 2000)) (internal alterations omitted). But 

California courts decline to afford preclusive effect to 

agency decisions over which the agency lacked jurisdiction.

In City & County of San Francisco v. Padilla, 23 Cal. App. 

3d 388, 400 (1972), for example, the California Court of 

Appeals concluded that a decision by a Board of Permit 

Appeals did not have preclusive effect in a state court 

nuisance action because the Board lacked subject matter 

jurisdiction over the decision. And in applying the Utah 

Construction factors to a decision by the Department of 
14 JAMGOTCHIAN V. FERRARO

Social Services, the California Supreme Court recited the 

requirement that the Department must have “had jurisdiction 

to decide th[e] issue” under its governing statute for its 

decision to be given preclusive effect. People v. Sims, 32 

Cal.3d 468, 481 (1982); see also Murray v. Alaska Airlines, 

Inc., 237 P.3d 565, 571 (Cal. 2010) (reaffirming the Utah 

Construction analysis conducted in Sims). Under California 

law, “[t]he doctrine of exhaustion of judicial remedies 

applies where . . . the prior administrative proceedings 

possessed the requisite judicial character such that they 

yielded decisions or findings that could later be given 

preclusive effect.” Alborzi v. Univ. of S. Cal., 269 Cal. Rptr.

3d 295, 310 (Cal. Ct. App. 2020) (emphasis added and 

internal quotation marks omitted). Because judicial 

exhaustion is a requirement for avoiding the preclusive 

effect of agency decisions, it logically is inapplicable where 

the agency decision would not be given preclusive effect in 

the first place. 

Of course, even assuming that the exhaustion 

requirement would apply under California law, we “defer to 

the considered judgment of the courts of California” only 

“[s]o long as the minimum criteria of Utah Construction are 

met.” Miller, 39 F.3d at 1038. As we have explained, those

“minimum criteria” are not met here. 

The State argues on appeal that the district court’s ruling 

sets no preclusion trap because Jamgotchian chose to appeal 

the Stewards’ decision to the CHRB, as opposed to going 

directly to federal court first. On this view, Jamgotchian’s

election to seek relief before the CHRB subjected him to the 

remaining requirements of California’s legal system, 

including the alleged requirement that Jamgotchian pursue 

his remedies in state court through a § 1094.5 writ petition
JAMGOTCHIAN V. FERRARO 15

to avoid preclusion by a decision of an agency that lacked 

jurisdiction to decide the relevant issues.

The State is mistaken. By seeking relief before the 

CHRB, Jamgotchian did expose himself to the risk that the 

CHRB’s decision would preclude a later § 1983 lawsuit—

had the CHRB ruled on his claims in a proper exercise of its 

jurisdiction. See Elliot, 478 U.S. at 796–97. If Jamgotchian 

had chosen to seek relief in state court, he would have 

created the same risk. But when the outcome of the CHRB 

process was that the CHRB lacked jurisdiction to decide the 

relevant issues—meaning that Jamgotchian was no farther 

along than when he started—requiring Jamgotchian to 

pursue his claims in state court would indeed ensnare him in 

a preclusion trap. He would be forced to exhaust a state court 

process the result of which could then preclude him from 

bringing a § 1983 lawsuit.

That type of exhaustion requirement is improper under 

§ 1983. The second Utah Construction factor requires that 

the issues be properly before the agency, and, as we have 

explained, “[a]n issue is properly before an administrative 

tribunal if that body has jurisdiction to decide it.” Misichia, 

60 F.3d at 630 (quoting Guild Wineries, 759 F.2d at 759). 

Utah Construction does not itself impose any exhaustion 

requirements, nor does the second Utah Construction 

factor—framed in terms of the agency’s authority—include 

consideration of what a state court could later decide were 

the matter presented to it. When the CHRB lacked 

jurisdiction, as here, its decision lacked preclusive effect 

under Utah Construction. Any requirement that 

Jamgotchian go to state court before filing suit under § 1983 

would amount to an improper exhaustion prerequisite.
16 JAMGOTCHIAN V. FERRARO

C

The district court reached its contrary result on these 

questions by relying principally on our past decisions in 

Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir. 1994), 

and Doe v. Regents of the University of California, 891 F.3d 

1147 (9th Cir. 2018). Neither case supports treating 

Jamgotchian’s § 1983 lawsuit as precluded.

Miller concerned a plaintiff, Miller, who was dismissed

from his position in the Santa Cruz County Sheriff’s 

Department and then contested his dismissal before the 

County’s Civil Service Commission. 39 F.3d at 1032. After 

an evidentiary hearing, the Commission ruled against Miller 

and notified him of his right to seek judicial review of its 

decision in California state court under California Code of 

Civil Procedure § 1094.5. Id. Miller instead brought a 

§ 1983 suit against the County in federal court. Id. The 

district court found that Miller’s § 1983 claims were 

precluded by the Commission’s ruling and granted summary 

judgment for the County. Id.

We affirmed because the Commission’s proceeding 

satisfied both Utah Construction and California preclusion 

law. Id. at 1032–38. Unlike in this case, there was no 

suggestion that the Commission lacked jurisdiction to decide 

Miller’s claims. Indeed, in listing reasons why an agency 

proceeding might fail to pass muster under Utah 

Construction, Miller specifically recognized that “[w]e deny 

preclusive effect . . . when the adjudicator lacks 

jurisdiction.” 39 F.3d at 1038. Here, as we have explained, 

the CHRB lacked jurisdiction in all relevant respects.

Nor does Miller require § 1983 plaintiffs to exhaust state 

remedies before suing in federal court. At points in our 

analysis in Miller, we referenced Miller’s ability to seek 
JAMGOTCHIAN V. FERRARO 17

judicial review in state court of the Commission’s decision. 

Id. at 1033, 1038. For example, we stated that “[w]here, as 

here, the agency adjudication meets the requirements of due 

process, and de novo judicial review is available, concerns 

of comity and finality counsel against denying preclusive 

effect.” Id. at 1038 (citation omitted). But we did not 

thereby impose an exhaustion requirement that would be

contrary to Supreme Court precedent.

Instead, Miller generally reiterated a far more modest 

proposition from our past cases: that a state agency decision 

can have preclusive effect in future federal lawsuits even 

though the plaintiff did not seek review of the agency

decision in state court. See id. at 1033. That this principle 

was determinative is made apparent by Miller’s reliance on 

our earlier decisions in Plaine v. McCabe, 797 F.2d 713 (9th 

Cir. 1986) and Eilrich v. Remas, 839 F.2d 630, 633–34 & n.2 

(9th Cir. 1988). See Miller, 39 F.3d at 1033 (discussing 

these two cases). In Plaine, we noted that the plaintiff’s 

decision not to seek state court review of a state agency 

decision “d[id] not diminish [the agency decision’s] 

preclusive effect in federal court.” 797 F.2d at 719 n.12. In 

Eilrich, we similarly rejected the argument that an 

“administrative decision was not preclusive because it was 

not reviewed by the California courts,” when the plaintiff 

failed to seek state court review of the agency decision. 839 

F.2d at 632. Plaine and Eilrich merely confirm that for a 

state agency decision to have preclusive effect in federal 

court, it is not a prerequisite that plaintiffs have sought state 

court review of the agency decision. In other words, when 

such judicial review is available, plaintiffs cannot “obstruct 

the preclusive use of the state administrative decision simply 

by foregoing the right to appeal.” Miller, 39 F.3d at 1033 

(quoting Eilrich, 839 F.2d at 632).
18 JAMGOTCHIAN V. FERRARO

This reasoning does not impose an exhaustion 

requirement for § 1983 plaintiffs. “No exhaustion 

requirement ha[d] been imposed on Miller,” we explained;

instead, any preclusive effect of the state agency decision 

resulted from Miller’s “election to pursue his claim initially 

in an administrative forum, and to forego his right to seek 

judicial review in state court,” and preclusion could apply 

only to “all that was, or could have been, determined” by the 

agency. Id. at 1034 n.3. This explanation did not mean that 

Miller was required to exhaust state judicial remedies as to 

issues the agency could not and did not decide before suing 

under § 1983 (which would set a preclusion trap). Id. 

It follows that when we stated in Miller that “the 

availability of judicial review, even if not always 

determinative, is of critical importance here,” id. at 1038, we 

likewise did not impose an exhaustion requirement for 

§ 1983 plaintiffs. That interpretation of Miller would of 

course be at war with Miller itself, which specifically 

disclaimed that it was imposing any exhaustion rule, and, in 

the language quoted above, recognized that “the availability 

of judicial review[] . . . [is] not always determinative.” See 

id. at 1034 n.3. Instead, Miller invoked the state review 

process as part of underscoring why it was fundamentally 

fair to treat the agency’s decision as preclusive. Indeed, we 

would later hold that the availability of judicial review is a 

requirement for a state agency decision to have preclusive 

effect under Utah Construction. See Wehrli v. County of 

Orange, 175 F.3d 692, 694–95 (9th Cir. 1999). Again, per 

Miller, the preclusive effect of a state agency decision can

extend only to “all that was, or could have been, determined

there.” 39 F.3d at 1034 n.3. Here, because the CHRB lacked 

jurisdiction to vindicate Jamgotchian’s constitutional 

challenge to the governing statute, nothing “was, or could 
JAMGOTCHIAN V. FERRARO 19

have been, determined” regarding those arguments before 

the CHRB that would preclude this § 1983 lawsuit.

Our prior decision in Doe also does not authorize the 

district court’s preclusion determination. In Doe, an 

adjudicatory committee at the University of California Santa 

Barbara (UCSB) found that Doe, a student, had sexually 

assaulted another student during a trip to Lake Tahoe. The 

committee decided that, as punishment, Doe should be 

suspended from school. 891 F.3d at 1150. Like Miller, Doe 

could have sought mandamus review of the committee’s 

decision in California state court under § 1094.5. Id. at 

1151. But he declined to do so. Id. Instead, Doe filed a 

§ 1983 suit in federal court, alleging procedural due process 

violations in the UCSB committee’s handling of his hearing. 

Id.

We concluded that Doe’s § 1983 claim was “precluded 

because he has failed to exhaust judicial remedies by filing 

a § 1094.5 writ petition in state court.” Id. at 1154. We

began by explaining that, as a matter of federal common law, 

we give preclusive effect to state agency proceedings that 

meet the Utah Construction “fairness requirements.” Id. 

And we noted that “[w]e evaluate the fairness of a state 

administrative proceeding by resort to both the underlying 

administrative proceeding and the available judicial review 

procedure,” with a § 1094.5 writ petition “provid[ing] ‘an 

adequate opportunity for de novo judicial review.’” Id.

(quoting Miller, 39 F.3d at 1033). We then concluded in 

relevant part as follows:

Because California has adopted the Utah 

Construction standard, we give preclusive 

effect to a state administrative decision if the 

California courts would do so. In California, 
20 JAMGOTCHIAN V. FERRARO

exhaustion of judicial remedies . . . is 

necessary to avoid giving binding effect to an 

administrative agency’s decision. A party 

must exhaust judicial remedies by filing a 

§ 1094.5 petition, the exclusive and 

established process for judicial review of an 

agency decision. UCSB’s suspension of Doe 

is the sort of adjudicatory, quasi-judicial 

decision that is subject to the judicial 

exhaustion requirement.

It is undisputed that Doe has not filed a 

§ 1094.5 petition in state court. . . . . 

Therefore, Doe has not exhausted his judicial 

remedies.

Id. at 1155 (quotations, citations, and brackets omitted). On

this basis, we held that the district court should have 

dismissed Doe’s § 1983 claims without prejudice. Id.

In seemingly imposing a judicial exhaustion requirement 

on a § 1983 plaintiff, Doe appears inconsistent with Knick

and other authorities. Doe never addressed settled precedent 

holding that exhaustion of state judicial remedies is not a 

prerequisite to filing suit under § 1983. And whereas Miller

and other precedents invoked the availability of state judicial 

review in explaining why it was fundamentally fair to accord 

preclusive effect to state agency decisions under Utah 

Construction, Doe appears to go a step further, faulting a 

§ 1983 plaintiff for his failure to exhaust state court review 

processes. Jamgotchian fairly argues that Doe’s reasoning

is in substantial tension with Knick and other cases rejecting 

exhaustion requirements for § 1983 suits. 
JAMGOTCHIAN V. FERRARO 21

But we need not reach the issue of Doe’s continued 

vitality after Knick or decide whether we would be permitted 

to reach that issue as a three-judge panel. See Miller v. 

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) 

(holding that a three-judge panel does not follow circuit 

precedent when “the reasoning or theory of our prior circuit 

authority is clearly irreconcilable with the reasoning or 

theory of intervening higher authority”). Those are 

important questions. But because we can resolve this appeal 

without confronting them, they are matters for another day.

Doe does not govern this case for the basic reason that, 

again, the agency here lacked jurisdiction to decide the 

claimsthat Jamgotchian now seeks to raise in his § 1983 suit. 

Doe did not, and could not, overrule our longstanding 

precedent that an agency decision does not have preclusive 

effect under Utah Construction when the agency lacked 

jurisdiction over the federal issue sought to be raised under 

§ 1983. See Misischia, 60 F.3d at 630; Miller, 39 F.3d at 

1033; Guild Wineries, 853 F.2d at 759. In noting that “[w]e 

evaluate the fairness of a state administrative proceeding by 

resort to both the underlying administrative proceeding and 

the available judicial review procedure,” Doe, 891 F.3d at 

1154, Doe did not suggest that this point extends to issues 

over which an agency lacks jurisdiction, which would 

collapse Utah Construction’s second and third prongs and

render the second prong a nullity. Indeed, we have never 

suggested that state court review processes could always be 

a curative for any Utah Construction deficiencies that might 

exist at the agency level. As our discussion above of Miller

emphasized, we have for the most part invoked the 

availability of state court review processes when explaining 

why it is ultimately fair to accord preclusive effect to the

state agency decision itself. 
22 JAMGOTCHIAN V. FERRARO

In addition, and more generally, although Doe relied on 

California preclusion law based on California’s own 

adoption of Utah Construction, see 891 F.3d at 1155, Doe 

did not, and again could not, reject our case law recognizing 

that preclusion does not apply when the Utah Construction 

factors are not all met. See Olson, 188 F.3d at 1086; Miller, 

39 F.3d at 1033; Plaine, 797 F.2d at 719 & n.13. And as to 

California preclusion law, Doe did not address whether 

California would require a plaintiff to seek state court review 

to avoid the supposed preclusive effect of an agency decision 

that lacked jurisdiction over the relevant issues. As we have 

noted, it does not appear that California courts would impose 

such a requirement. 

True, when discussing the factual background of the 

case, Doe did mention that in the district court, Doe had 

alleged “that UCSB lacked jurisdiction over the Lake Tahoe 

trip.” 891 F.3d at 1151. This was apparently a reference to 

the possibility that UCSB could not punish Doe for offcampus conduct. But Doe did not rely on this allegation in 

its merits discussion, and it is not apparent that Doe, which 

focused on exhaustion, evaluated the Utah Construction

factors in any meaningful way. It certainly did not do so as 

to Utah Construction prong two. Doe, which did not address 

the preclusion implications of a lack of jurisdiction at the 

administrative level, thus cannot be considered authoritative 

on that point. See, e.g., United States v. Corrales-Vazquez, 

931 F.3d 944, 954 (9th Cir. 2019) (“Cases are not 

precedential for propositions not considered, or for questions 

which merely lurk in the record.”) (citations, alterations, and 

quotations omitted). In any event, in Doe the argument 

appears to have been that UCSB in issuing its suspension

decision exceeded its authority. In this case, the CHRB 
JAMGOTCHIAN V. FERRARO 23

clearly lacked jurisdiction and so recognized, disclaiming its 

ability to decide the relevant issues. 

We have never held that an agency’s jurisdictionwanting non-decision has preclusive effect in a later § 1983 

suit. Nor have we held that the failure to pursue state court 

review of such a non-decision precludes a corresponding

§ 1983 claim in federal court. Those propositions are 

inconsistent with settled precedent.

* * *

For the foregoing reasons, the CHRB’s decision does not 

preclude Jamgotchian’s § 1983 claims. The judgment of the 

district court is reversed, and the case is remanded for further 

proceedings. Given our decision on preclusion, we do not 

reach Jamgotchian’s argument that he had no available 

§ 1094.5 writ remedy in state court. Nor do we reach the 

defendants’ alternative arguments for affirmance, which the 

district court has yet to consider.

REVERSED AND REMANDED.