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, Presiding2 J AMGOTCHIAN V

. F ERRARO

Submitted January 8 , 202 4 *

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

- 5520 8

, a prior appeal involving this same dispute and legal
issues. We have consider ed the briefing and argument in Case No. 23

- 55208 in our resolution of th is 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.J AMGOTCHIAN V

. F ERRARO 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 co nstitutional
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 a n 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 Defendants

Appellees.4 J AMGOTCHIAN V

. F ERRARO

OPINION

BRESS, Circuit Judge:

A dispute over a horse’s name has led to t his appeal
about preclusion. The question is whether a state agency
decision precludes the plaintiffs ’ § 1983 lawsuit

. T he
answer is “no.” The agency decision has no preclusive effect
because the agency lacked jurisdiction to decide the constitutional issues that the plaintiff s now raise . Nor were the plaintiff s required to seek review of the state agency’s decision in state court before suing under § 1983. T wo of our past decisions created some confusion on these s ettled
issues in the court below. T ak ing th is 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 race horse 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 violate d 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 .” T he Jockey Club belie ved that Malpractice Meuser was namedJ AMGOTCHIAN V

. F ERRARO 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 ever y 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 L anham Act’s prohibition on disparaging trademarks violates the First Amendment )

. Adopting a hearing officer’s written ruling , the CHRB
affirm ed 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 jurisdiction6 J AMGOTCHIAN V

. F ERRARO

to decide Jamgotchian’s constitutional claims. It explained that, because the California Constitution bars state agencies
from declaring a statute unconstitutional or refus ing 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. T he 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.

P roc

. § 1094.5 (procedures for writs of mandamus)

. Under California law, a § 10 9 4.5 writ petition is the “ordinary means” for challenging a state agency decision in state court

. Chen T hrough Chen v. Albany Unified Sch. Dist. , 56 F.4th 708, 724 n.6 (9th Cir. 2022). Instead of filing a § 10 9 4.5 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, t he 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 preclude d Jamgotchian’s § 1983 lawsuit . The district courtJ AMGOTCHIAN V

. F ERRARO 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 th at 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 conclud ing that the CHRB
decision , in combination with Jamgotchian not seek ing
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). T his statutory provision does not apply to state administrative agency decisions. Univ. of Tenn

. v. Elliott , 478 U.S. 788, 796

– 97, 799 (1986). Nevertheless, the8 J AMGOTCHIAN V

. F ERRARO

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 determination s 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 Ellio t t , 478 U.S. at 7 99. 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 a n 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 Gu ild 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 ofJ AMGOTCHIAN V

. F ERRARO 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 l aw ], 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 t he “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 adeq uate 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, t he 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. “ A n issue is ‘ properly before an administrative tribunal if that body has jurisdiction to decide it

, ’ [as] a10 J AMGOTCHIAN V

. F ERRARO

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 question s

. 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
103 8 (citing Shaw v. Calif. Dept. of Alcoholic BeverageJ AMGOTCHIAN V

. F ERRARO 11

Control , 788 F.2d 600, 608 (9th Cir. 1986)). And b ecause 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, its lack 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 J AMGOTCHIAN V

. F ERRARO

(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 79 6

– 97. But b y 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

. S uch an exhaustion requirement spring s a n improper “preclusion trap” for § 1983 plaintiffs. Knick , the Supreme Court’s recent foray into this area, illustrates the issue. I n Knick , the Court overturned its earlier rule from Williamson County Regional Planning Comm issio n v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985), that a property owner
could not bring a federal T akings 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 a n 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 cogni z able under § 1983 to “ring []
hollow.” Id. And a lthough Williamson County located its
decision in an interpretation of the Takings Clause, had itJ AMGOTCHIAN V

. F ERRARO 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 claim s , Jamgotchian would face a preclusion trap
akin to the one Knick rejected

. Id. The result would be that Jamgotchian

— with his constitutional claims yet un decided by any jurisdictionally competent body

— c ould 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)

. Ja mgotchian’s ability to have his constitutional claims heard in federal court
would be conditioned on

, but simultaneously threatened by

, his resort to state court. Th at heads

- I

- win

- tails

- you

- lose
result is inconsistent with Knic k 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), f or 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 of14 J AMGOTCHIAN V

. F ERRARO

Social Services, the California Supreme Court recited the requirement that the D epartment 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) ; s ee 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, e ven 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 Constructio n 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

t he Stewards’ decision to the CHRB

, as opposed to going directly to federal court first

. On this view, Jamgotchian ’s
elect ion to seek relief before the CHRB subjected him to the remaining requirements of California’s legal system, includ ing the alleged requirement that Jamgotchian pursue his remedies in state court through a § 1094.5 writ petitionJ AMGOTCHIAN V

. F ERRARO 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 w ould preclude a later § 1983 lawsuit

— had the CHR B 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 f a rther along than when he started

— requiring Jamgotchian to pursue his claims in state court would indeed ens nare him in a preclusion trap

. He would be forc ed to exhaust a state court

process th e result of which c ould 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 Win eries , 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 lack ed preclusive effect
under Utah Construction . A ny requirement that Jamgotchian go to state court before filing suit under § 1983
would amount to an improper exhaustion prerequisite

.16 J AMGOTCHIAN V

. F ERRARO

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 Univ ersity of California , 891 F.3d
1147 (9th Cir. 2018). N either 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, t he 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

pre c luded 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 claim s. 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 lack ed jurisdiction in all relevant respects.

Nor d oes Miller require § 1983 plaintiff s to exhaust state
remedies before suing in federal court

. At points in our analysis in Miller

, we referenced Miller’s ability to seekJ AMGOTCHIAN V

. F ERRARO 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 i d. at 1033. T hat t his 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 hav e 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 J AMGOTCHIAN V

. F ERRARO

T his reasoning does not impose a n exhaustion requirement for § 1983 plaintiffs

. “ N o exhaustion requirement ha [d] been imposed on Miller,” we explained ; i nstead, 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

, ” a nd preclusion could apply only to “all that was, or could have been, determined ” by the

agency. Id. at 1034 n.3. T his 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 w hen 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
fai r 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 couldJ AMGOTCHIAN V

. F ERRARO 19

have been

, determined ” regarding those arguments before
the CHRB that w ould 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. B ut 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 § 1 09 4.5 writ petition “provid[ing] ‘an adequate opportunity for de novo judicial review

. ’” I d. (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 J AMGOTCHIAN V

. F ERRARO

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 tha t 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 w hereas 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

.J AMGOTCHIAN V

. F ERRARO 21

But we need not reach th e issu e 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 matt ers for another day.

Doe does not govern this case for the basic reason that, again, the agency here lacked jurisdiction to decide the
claims that 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 lack s 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. A s 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 J AMGOTCHIAN V

. F ERRARO

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. A s 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 off

campus 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 can not 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 quotation s 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 CHRBJ AMGOTCHIAN V

. F ERRARO 23

clearly lacked jurisdiction and so recognized, disclaim ing its ability to decide the relevant issues.

We have never held that an agency’s jurisdiction

wanting 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. T he 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 § 1 094.5 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.