FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC BAHRA, No. 18-55789
Plaintiff-Appellant,
D.C. No.
v. 5:16-cv-01756-JGB-SP
COUNTY OF SAN
BERNARDINO; SAN OPINION
BERNARDINO COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES;
KRISTINE BURGAMY, In Her
Individual and Official
Capacity; NICKOLA
HACKETT, In Her Individual
and Official Capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted November 13, 2019
Pasadena, California
Filed December 30, 2019
2 BAHRA V. CTY. OF SAN BERNARDINO
Before: Susan P. Graber, Marsha S. Berzon,
and Morgan Christen, Circuit Judges.
Opinion by Judge Graber
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of San Bernardino
County Department of Children and Family Services
defendants in an action brought pursuant to 42 U.S.C. § 1983
and state law alleging that defendants fired plaintiff from his
post as a social services practitioner in retaliation for his
whistleblowing activities.
Plaintiff challenged his termination, unsuccessfully,
through an appeal to the County’s Civil Service Commission
and subsequently filed the present action. The district court
granted summary judgment for defendants, holding in part,
that plaintiff’s claims for retaliation under California Labor
Code section 1102.5 and 42 U.S.C. § 1983 were barred by
claim preclusion and issue preclusion.
The panel first held that the Commission’s order
sustaining plaintiff’s dismissal did not preclude plaintiff’s
section 1102.5 claim for retaliation. The panel noted that
although in California decisions by administrative agencies
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BAHRA V. CTY. OF SAN BERNARDINO 3
typically have preclusive effect, the California Court of
Appeal recently applied a legislative-intent exception and
held that administrative findings by a state agency do not
preclude claims for retaliation brought under section 1102.5.
See Taswell v. Regents of Univ. of Cal., 232 Cal. Rptr. 3d
628, 643 (Ct. App. 2018). The panel concluded that
defendants had failed to persuade it that the Taswell court
misapplied California law such that the California Supreme
Court would disagree with Taswell’s reasoning or conclusion.
The panel’s conclusion regarding legislative intent did not
extend to plaintiff’s claim under § 1983. The panel noted that
plaintiff did not argue that giving an administrative
proceeding preclusive effect in a later § 1983 action was
contrary to legislative intent, and the panel declined to
conduct that analysis sua sponte. The panel held that plaintiff
had a full opportunity to litigate the propriety of his
termination before the administrative agency, as evidenced by
the comprehensive evidentiary record and the availability of
judicial review. The panel concluded that plaintiff’s § 1983
claim was precluded by the Commission’s order and affirmed
the district court’s ruling on this claim.
COUNSEL
Valerie Ross (argued), Law Offices of Valerie Ross,
Victorville, California; A. Cabral Bonner (argued) and
Charles A. Bonner, Law Offices of Bonner & Bonner,
Sausalito, California; for Plaintiff-Appellant.
4 BAHRA V. CTY. OF SAN BERNARDINO
Susan E. Coleman (argued) and Kristina Doan Strottman,
Burke Williams & Sorensen LLP, Los Angeles, California;
for Defendants-Appellees.
OPINION
GRABER, Circuit Judge:
Plaintiff Eric Bahra was fired from his post as a social
services practitioner in Defendant San Bernardino County’s
Department of Children and Family Services (“CFS”).
Plaintiff challenged his termination, unsuccessfully, through
an appeal to the Civil Service Commission of the County of
San Bernadino (“Commission”). He then filed this action, in
which he alleges that CFS and two of its employees fired him
in retaliation for his whistleblowing activities, in violation of
California Labor Code section 1102.5 and 42 U.S.C. § 1983.
The district court dismissed the action on the ground, as
relevant here, that the Commission’s decision precluded
Plaintiff’s claims. We affirm in part, reverse in part, and
remand.
BACKGROUND1
CFS investigates referrals regarding child abuse and
provides services to children and families. In June 2013,
Plaintiff was assigned as the lead investigator to look into
allegations of abuse brought by a group of children against
their former foster parent. As part of his investigation,
Plaintiff used the CFS database, which generally keeps track
1
Some of these facts are disputed, but those disputes are not material
to this appeal.
BAHRA V. CTY. OF SAN BERNARDINO 5
of child abuse information. Plaintiff alleges that he
discovered that the foster home at issue had a prior history of
child abuse and neglect but that the database did not correctly
reveal that history because of typographical errors in past
reports and database entries.
Plaintiff informed his manager, Defendant Kristine
Burgamy, on the same day that he discovered the database
errors. The next day, Plaintiff found Burgamy and Defendant
Nicola Hackett, Deputy Director of the Victorville CFS
office, “rifling through” files on his desk.
In July 2013, the County conducted an “administrative
interview” with Plaintiff to determine whether he had violated
any policies, rules, or practices. Plaintiff then left for a short
vacation and, upon his return, the County placed him on desk
duty. Shortly thereafter, the County placed him on
administrative leave pending the outcome of the disciplinary
process. The County then conducted a second
“administrative interview.” At that interview, Plaintiff was
represented by counsel, and Burgamy and Hackett attended
for the County.
In September 2013, Plaintiff was issued a Notice of
Proposed Dismissal, which contained several grounds for
termination. The notice also explained that it was a
“proposed action only” and that Plaintiff could respond to his
appointing authority, which he did.
Thereafter, a hearing officer conducted an administrative
hearing. Plaintiff was represented by counsel at the hearing,
and he submitted another written response to the notice. The
hearing officer “gave more credence to the County’s
position” and issued Plaintiff an Order of Dismissal in
6 BAHRA V. CTY. OF SAN BERNARDINO
October 2013. The order contained twelve reasons for
dismissal.
A few days later, Plaintiff appealed and requested an
evidentiary hearing pursuant to San Bernardino Personnel
Rule X, Section 9. That hearing took place over 14 days
during 2014. In total, the hearing included 27 witnesses,
2,045 pages of testimony, 154 pages of post-hearing briefs,
and 89 exhibits.
Throughout the hearing, Plaintiff alleged that his
termination was retaliatory and that Defendants had engaged
in a “witch hunt” against him. Plaintiff primarily argued at
the hearing that he was terminated in retaliation for his union
organizing activity. In October 2012, Bahra circulated a
petition protesting his supervisors’ management style and the
“hostile working environment” in the Victorville CFS Office.
At least nine CFS employees signed the petition, which was
addressed to Human Resources. Several witnesses at the
hearing, including Bahra, testified about this petition.
In July 2015, the hearing officer issued a decision. The
hearing officer concluded that Plaintiff had not produced
evidence of retaliation and that five allegations against
Plaintiff were substantiated. Consequently, the hearing
officer recommended that the Commission uphold Plaintiff’s
termination and deny his appeal.
The Commission adopted the hearing officer’s report and
sustained CFS’s order of dismissal. The Commission also
advised Plaintiff of his right to seek judicial review through
a writ of mandamus under California Code of Civil Procedure
section 1094.5.
BAHRA V. CTY. OF SAN BERNARDINO 7
Plaintiff did not seek a writ under section 1094.5.
Instead, he filed this action, alleging several claims. The
district court granted summary judgment for Defendants,
holding in part that Plaintiff’s claims under California Labor
Code section 1102.5 and 42 U.S.C. § 1983 were barred by
claim preclusion and issue preclusion. Plaintiff timely
appeals.
STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. King v. County of Los Angeles, 885 F.3d 548, 556
(9th Cir. 2018). Likewise, we review de novo whether
preclusion applies. See Media Rights Tech., Inc. v. Microsoft
Corp., 922 F.3d 1014, 1020 (9th Cir. 2019) (claim
preclusion); Wabakken v. Cal. Dep’t of Corr. & Rehab.,
801 F.3d 1143, 1148 (9th Cir. 2015) (issue preclusion).
DISCUSSION
We grant the same preclusive effect to state court
judgments as those judgments would receive in the state in
which they were rendered. 28 U.S.C. § 1738. State
administrative agency decisions, similarly, receive the same
preclusive effect that they would receive in state court. Avila
v. L.A. Police Dep’t, 758 F.3d 1096, 1100 (9th Cir. 2014)
(citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986)).
A. Plaintiff’s Claim Under California Labor Code
Section 1102.5.
In California, decisions by administrative agencies
typically have preclusive effect, provided that they have a
sufficiently “judicial character” and that the elements of
8 BAHRA V. CTY. OF SAN BERNARDINO
claim or issue preclusion are satisfied. Murray v. Alaska
Airlines, 237 P.3d 565, 568–69 (Cal. 2010); Runyon v. Bd. of
Trs., 229 P.3d 985, 994 (Cal. 2010). But courts will not
afford preclusive effect to an administrative decision if doing
so would contravene the intent of the California legislature.
Fahlen v. Sutter Cent. Valley Hosps., 318 P.3d 833, 845–46
(Cal. 2014); see also State Bd. of Chiropractic Exam’rs v.
Superior Ct, 201 P.3d 457, 464 (Cal. 2009) (California courts
do not give preclusive effect to the results of agency
proceedings “if doing so is contrary to the intent of the
legislative body that established the proceeding in which
[preclusion] is urged.” (quoting Pac. Lumber Co. v. State
Water Res. Control Bd., 126 P.3d 1040, 1055 (Cal. 2006))).
The California Court of Appeal recently applied the
legislative-intent exception and held that administrative
findings by a state agency do not preclude claims for
retaliation brought under section 1102.5. Taswell v. Regents
of Univ. of Cal., 232 Cal. Rptr. 3d 628, 643 (Ct. App. 2018).
Accordingly, unless we are “convinced” that the California
Supreme Court would disagree with Taswell, we are bound
by its holding. Poublon v. C.H. Robinson Co., 846 F.3d
1251, 1266 (9th Cir. 2017) (quoting Miller v. County of Santa
Cruz, 39 F.3d 1030, 1036 n.5 (9th Cir. 1994)).
The California Supreme Court’s decision in Murray does
not convince us to deviate from Taswell. In Murray, the
California Supreme Court considered the preclusive effect of
a federal agency’s investigative findings when the plaintiff
had elected not to pursue a formal adjudicatory hearing or
subsequent judicial review. 237 P.3d at 566. The court held
that the plaintiff’s retaliation claim was precluded. Id. at 568.
But Murray does not require us to give preclusive effect here
BAHRA V. CTY. OF SAN BERNARDINO 9
to the Commission’s order with respect to Plaintiff’s section
1102.5 claim, for several reasons.
First, the California Supreme Court expressly limited the
scope of its holding in Murray. The court held that
preclusion applied there in light of “the particular factual and
procedural circumstances of this case, and the particular
provision of the . . . statutory scheme here at issue.” Id.
Murray does not stand for the proposition that all
administrative agency findings preclude claimants from
asserting section 1102.5 claims in civil actions. Additionally,
Murray involved concerns for “comity and federalism,” id.
at 577, that are wholly inapposite to this case.
Most significantly, Murray applied a different test than
the test applied in Taswell. Murray considered whether the
federal administrative proceeding possessed a “sufficiently
judicial character.” Id. at 568. Taswell considered the
legislative intent of section 1102.5. 232 Cal. Rptr. at 643.
Both tests apply in analyzing whether preclusion applies.
Pac. Lumber, 126 P.3d at 1055–56. In other words, Taswell
and Murray assessed different legal questions. Thus, they are
not inconsistent.
Moreover, Defendants have not persuaded us that the
Taswell court misapplied California law such that the
California Supreme Court would disagree with its reasoning
or its conclusion. Taswell applied principles derived from
California Supreme Court precedents to resolve the question
whether preclusion applied to the plaintiff’s section 1102.5
claims. Those precedents include Fahlen, which post-dates
Murray. Significantly, Fahlen recognized the intent of the
California legislature to create “distinct fora and procedures”
for retaliation claims, separate and apart from administrative
10 BAHRA V. CTY. OF SAN BERNARDINO
procedures that address adverse employment actions.
318 P.3d at 846 & n.10. Because we conclude that the
California Supreme Court likely would agree with Taswell,
we hold that the Commission’s order does not preclude
Plaintiff’s section 1102.5 claim. Accordingly, we reverse the
district court’s ruling to the contrary.
B. Plaintiff’s Claim Under § 1983.
Our conclusion regarding legislative intent does not,
however, extend to Plaintiff’s claim under § 1983. Plaintiff
does not argue that giving an administrative proceeding
preclusive effect in a later § 1983 action is contrary to
legislative intent, and we decline to conduct that analysis sua
sponte. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080
(9th Cir. 2013) (We do “not ordinarily consider matters ‘that
are not specifically and distinctly argued.’” (quoting Koerner
v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003))). The
remaining issue is, therefore, whether the administrative
proceeding had the requisite “judicial character.” Murray,
237 P.3d at 568–69; Runyon, 229 P.3d at 994.2
Plaintiff’s amended complaint alleged § 1983 claims for
First Amendment retaliation based on two separate acts:
advocating repair of the flaws he discovered in the CFS
computer system and advocating the elimination of a hostile
work environment. The district court granted judgment on
the pleadings as to the § 1983 free speech claim regarding the
CFS computer system, concluding that Plaintiff “spoke as a
public employee, rather than a private citizen.” Plaintiff did
not amend his complaint or appeal that ruling. Thus, the only
2
Plaintiff does not challenge the district court’s application of the
elements of claim preclusion or issue preclusion under California law.
BAHRA V. CTY. OF SAN BERNARDINO 11
speech at issue in Plaintiff’s § 1983 claim relates to his
petition regarding the working environment.
To have a “sufficiently judicial character,” a proceeding
must, among other things, provide a claimant with an
“adequate opportunity to litigate.” Murray, 237 P.3d
at 569–70 (quoting United States v. Utah Constr. & Mining
Co., 384 U.S. 394, 422 (1966)). Plaintiff argues that he did
not have an adequate opportunity to litigate because the
County’s asserted reasons for termination were pretextual.
But Plaintiff misses the mark. Whether a litigant had a
sufficient opportunity to litigate depends on whether “both
parties had a full and fair opportunity to argue their version
of the facts and an opportunity to seek court review of any
adverse findings.” Utah Constr. & Mining Co., 384 U.S.
at 422; see also Samara v. Matar, 419 P.3d 924, 930 (Cal.
2018) (“The ‘chance’ to litigate . . . is the opportunity to
submit a dispute over legal rights to a tribunal legally
empowered to decide it according to definite procedural
rules.” (quoting Restatement (Second) of Judgments, intro.
pp. 6–7 (1982)). Plaintiff had a full opportunity to litigate the
propriety of his termination before the administrative agency,
as evidenced by the comprehensive evidentiary record and the
availability of judicial review. See Samara, 419 P.3d at 930
(explaining that the “less robust the process involved in
resolving litigation the first time, the stronger the argument
for permitting litigation once more”). Several witnesses
testified about Plaintiff’s petition regarding a hostile work
environment, and Plaintiff argued that he was targeted and
fired in retaliation for that advocacy. The hearing officer
considered and rejected his arguments. We therefore
conclude that Plaintiff’s § 1983 claim is precluded by the
12 BAHRA V. CTY. OF SAN BERNARDINO
Commission’s order, and we affirm the district court’s ruling
on this claim.3
AFFIRMED in part, REVERSED in part, and
REMANDED. The parties shall bear their own costs on
appeal.
3
We need not decide whether claim preclusion applies here, because
issue preclusion clearly applies.