Murray v. Alaska Airlines, Inc.

*880WERDEGAR, J., Dissenting.

Kevin Murray alleges he was wrongfully discharged by Alaska Airlines, Inc. (Alaska). In the course of the investigation of his administrative complaint, he received no hearing. He was not contacted to provide evidence. He was not permitted to confront the witnesses against him, to review the evidence submitted by Alaska, or to make oral or written arguments before findings were made. No testimony was submitted under oath and no record was prepared. (See Murray v. Alaska Airlines, Inc. (9th Cir. 2008) 522 F.3d 920, 921.) The majority holds that after such an investigation, Murray may be collaterally estopped based on the resulting administrative findings, and forever barred from seeking redress, because he failed to appeal those findings and have them set aside. I respectfully dissent.

I

Murray, a quality assurance auditor for Alaska, brought safety concerns about Alaska’s operations to the attention of the Federal Aviation Administration. An investigation revealed “ ‘significant discrepancies relating to air carrier safety.’ ” (Murray v. Alaska Airlines, Inc., supra, 522 F.3d at p. 921.) Subsequently, Murray’s position was outsourced, and he was unable to find another job with Alaska. Although not required to do so, Murray voluntarily filed a federal administrative complaint with the United States Department of Labor,1 contending that Alaska’s adverse actions were in retaliation for his protected whistleblower activity. (See 49 U.S.C. § 42121(b).)

In the ensuing investigation, “Alaska submitted a written response to Murray’s complaint, produced relevant documentation and offered witness testimony.” (Murray v. Alaska Airlines, Inc., supra, 522 F.3d at p. 921.) The investigation’s treatment of Murray was in marked contrast: “Murray was never contacted by the Secretary [of Labor]’s investigator. He was not given a copy of the documents provided by Alaska or its witness statements. Nor did he have an opportunity to submit additional information to the Secretary, or respond to Alaska’s arguments, before the Secretary rendered her findings.” (Ibid.) Unsurprisingly, given these procedures, the Secretary of Labor, acting through her agent, a regional administrator for the Occupational Health and Safety Administration, issued findings in favor of Alaska: while Murray had engaged in protected activity and suffered an adverse employment action, the Secretary concluded there was no connection between the two.

Rather than appeal the adverse decision and seek an administrative hearing, Murray filed suit, alleging wrongful termination and retaliation for whistle-blowing in violation of public policy. (See Lab. Code, § 1102.5, subd. (b); *881Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330].) The question here is whether the administrative findings, rendered without the benefit of a hearing or even consultation with Murray, are entitled to issue preclusive effect so as to bar Murray’s suit.

That administrative findings may give rise to issue preclusion is of course long settled. (See United States v. Utah Constr. Co. (1966) 384 U.S. 394, 419-422 [16 L.Ed.2d 642, 86 S.Ct. 1545]; People v. Sims (1982) 32 Cal.3d 468, 479 [186 Cal.Rptr. 77, 651 P.2d 321].) However, before an administrative finding may operate as a bar to judicial relief, a court must assure itself that the proceeding giving rise to it had a sufficiently “judicial character.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 113 [84 Cal.Rptr.3d 734, 194 P.3d 1026]; Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944 [38 Cal.Rptr.3d 220, 126 P.3d 1040] (Pacific Lumber Co.); see Sims, at pp. 479-480.) “Indicia of [administrative] proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party’s ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision.” (Pacific Lumber Co., at p. 944.)

Comparing the features that demonstrate an administrative proceeding’s judicial character with the prefinding procedures afforded here leads ineluctably to the conclusion the administrative findings in this case are not entitled to preclusive effect. Testimony was not taken “under oath or affirmation” (Pacific Lumber Co., supra, 37 Cal.4th at p. 944); Murray had no “ability to subpoena, call, examine, and cross-examine witnesses” (ibid.); he had no opportunity “to introduce documentary evidence” (ibid.); he had no opportunity “to make oral and written argument” (ibid.); and there was no “taking of a record of the proceeding” (ibid.), for indeed there was no hearing at all. There were, it is true, written findings, but that alone is manifestly insufficient to support collateral estoppel. (See, e.g., McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at pp. 113-114.) Indeed, I do not read the majority opinion as disputing that the proceedings Murray actually received do not come close to satisfying the judicial character requirement. For purposes of whether estoppel applies, that should be the end of the matter.

n

The majority reaches a contrary conclusion by attending not to the proceedings that actually preceded the administrative findings, but to those *882that could have occurred, but did not, after the findings were made. We have never done so before; indeed, we have previously dismissed as unsupported by authority a similar argument to the one now embraced by the majority. In Pacific Lumber Co., we expressly declared: “For an administrative decision to have collateral estoppel effect, it and its prior proceedings must possess a judicial character.” (Pacific Lumber Co., supra, 37 Cal.4th at p. 944, italics added.) We there considered the proceedings leading up to the Department of Forestry and Fire Protection’s approval of a timber harvesting plan for land subsequently acquired by Scotia Pacific Company LLC and Pacific Lumber Company, a plan that did not call for water quality monitoring, and concluded those prior proceedings were of an insufficiently judicial character to bar a regional water board from thereafter mandating such monitoring. (Id. at pp. 944-945.)

The lumber companies had argued that in assessing the judicial character of the department of forestry’s decision, we should take into account the appeal procedures available to the water board. (Pacific Lumber Co., supra, 37 Cal.4th at p. 945, fn. 13;, see Pub. Resources Code, § 4582.9.) We declined to accept the argument, noting a complete absence of authority for the proposition that postfinding appeal proceedings that could have been, but were not, pursued could rescue prefinding proceedings otherwise lacking in judicial character. (Pacific Lumber Co., at p. 945, fn. 13.)

Pacific Lumber Co. is no anomaly; to the contrary, existing precedent entirely justified its pronouncement that the assessment of an administrative decision’s judicial character depends upon the “prior proceedings” leading up to the decision. (Pacific Lumber Co., supra, 37 Cal.4th at p. 944.) The United States Supreme Court approved administrative collateral estoppel in United States v. Utah Constr. Co., supra, 384 U.S. 394. Both that case and every case the high court relied on for recognition of administrative estoppel involved prefinding proceedings that justified the imposition of estoppel. (See id. at p. 422 [findings entered after a party “had a full and fair opportunity to argue their version of the facts” at an evidentiary hearing]; Sunshine Coal Co. v. Adkins (1940) 310 U.S. 381, 390-391 [84 L.Ed. 1263, 60 S.Ct. 907] [findings followed a public hearing, taking of evidence, and oral argument]; Fairmont Aluminum Co. v. Commissioner of Internal Revenue (4th Cir. 1955) 222 F.2d 622, 625 [taxpayer had an opportunity to submit evidence before findings were issued]; Seatrain Lines v. Pennsylvania R. Co. (3d Cir. 1953) 207 F.2d 255, 258-259 [findings followed hearings and argument from both sides]; Goldstein v. Doft (S.D.N.Y. 1964) 236 F.Supp. 730, 732 [findings followed hearings and written argument], affd. per curiam (2d Cir. 1965) 353 F.2d 484.)

We embraced the Utah Construction rule in People v. Sims, supra, 32 Cal.3d 468. In Sims and every published state case since, including every *883case the majority relies on, courts have applied issue preclusion only after determining the prefinding proceedings were of a sufficiently judicial character to warrant it. (See, e.g., Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 71 & fn. 3 [99 Cal.Rptr.2d 316, 5 P.3d 874] [estoppel based on findings made after an evidentiary hearing with live testimony]; Sims, at pp. 479-480 [estoppel based on findings made after a full evidentiary hearing with the opportunity to subpoena, call, and cross-examine witnesses]; Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1142 [20 Cal.Rptr.3d 598] [issue preclusion based on a comprehensive decision issued after a three-day adversarial evidentiary hearing]; Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 482 [111 Cal.Rptr.2d 870] [estopped party “had ample opportunity to raise issues and present evidence” at a full evidentiary hearing]; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1179 [260 Cal.Rptr. 76] [estopped party was “afforded a full hearing to present evidence under oath or affirmation”]; Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1470 & fn. 5 [249 Cal.Rptr. 578] [barred party was afforded full hearing with a right of discovery].)2

Similarly, those decisions that have declined to find a basis for preclusion have likewise considered the character of the prefinding procedures. (See, e.g., McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at pp. 113-114 [no basis for requiring judicial exhaustion where the administrative decision was not based on a hearing and the plaintiff had no opportunity to call witnesses or present evidence]; Pacific Lumber Co., supra, 37 Cal.4th at pp. 944-945 [rejecting estoppel and finding no basis for considering an unpursued postdecision appeal]; Ahmadi-Kashani v. Regents of University of California (2008) 159 Cal.App.4th 449, 458 [71 Cal.Rptr.3d 556] [no basis for estoppel where the plaintiff “was afforded no hearing at all, let alone a ‘quasi-judicial’ one, prior to abandoning her grievance process”]; id. at pp. 458-460.) In short, we have always insisted on certain minimum prefinding procedures.

The reason for demanding that prefinding proceedings have a judicial character is clear. One of the core values of our judicial system is accuracy in decisionmaking. (E.g., Tehan v. Shott (1966) 382 U.S. 406, 416 [15 L.Ed.2d 453, 86 S.Ct. 459] [the “basic purpose of a trial is the determination of truth”].) Many if not most of our rules for court proceedings have as a central *884purpose the promotion of accuracy. Consequently, cases dating to the inception of the administrative collateral estoppel doctrine have always considered the judicial character of the proceedings that actually transpired before findings were rendered. Where the litigant was given an opportunity to present his or her best case before the administrative findings were issued, we can have faith in the findings reached thereafter. Here, in contrast, we have no reason to have faith in the accuracy or fairness of the findings, nor, consequently, do we have any justification for placing our imprimatur on them and according the findings preclusive effect.

We have in the past identified the availability of postfinding review as an additional necessary factor in determining whether to permit issue preclusion (see Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829 [88 Cal.Rptr.2d 366, 982 P.2d 229]; maj. opn., ante, at pp. 875-876); never, until today, has the availability of a postfinding appeal been treated as a sufficient condition for imposition of estoppel. In short, no California case has allowed what the majority countenances here—issue preclusion for findings rendered without any prior opportunity for a hearing, the submission of evidence, the confrontation of witnesses, or the presentation of argument.3

Ill

Explicit or implicit in the majority opinion are three rationales for why we should disregard past precedent and place our faith in administrative findings rendered in such a nonjudicial fashion: Murray acquiesced in the findings; he was obligated to exhaust the title 49 United States Code section 42121 procedure once he invoked it; and federalism and comity considerations warrant according such findings effect. None has merit.

Running through the majority opinion is the implication that Murray knew, or should have known, that failing to seek a full hearing before an administrative law judge would result in his forfeiture of any remedies—in essence, that he was on notice he must appeal or face a bar, and that by failing to *885appeal he acquiesced in the investigative findings. (See maj. opn., ante, at pp. 868, 877-879.) The regional administrator’s findings letter certainly put Murray on notice that he would relinquish federal remedies unless he took further action.4 But the administrative proceedings were voluntary; exhaustion of them was, for state purposes, not mandatory. Murray rationally could have elected to forgo his federal remedies after receiving the initial regional administrator letter, deciding to focus his energies on seeking state relief instead. Nothing in his actions can be interpreted as acquiescence, i.e., as a concession that he lacked any evidence supporting contrary findings, such as might elevate our faith in the accuracy of the preliminary findings.5 Nor would anything in the letter, or in any of our prior decisions, have alerted Murray or his counsel that failing to act would subject him to a bar and a sacrifice of his independent, parallel state remedies. Fairness is a necessary precondition to the application of estoppel (see Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 835; Lucido v. Superior Court (1990) 51 Cal.3d 335, 343 [272 Cal.Rptr. 767, 795 P.2d 1223]); in the absence of foreseeability, application of a bar here is profoundly inequitable.6

In a related vein, the majority suggests Murray can be fairly barred from proceeding because he failed to exhaust available remedies. (E.g., maj. opn., ante, at pp. 868-869, 876-878.) But this rationale depends on a substantial *886expansion of the previously marked bounds of judicial exhaustion. Judicial exhaustion is simply a logical corollary of collateral estoppel principles: if an administrative decision is rendered, then, “provided that decision is of a sufficiently judicial character to support collateral estoppel” (McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at p. 113), the losing party must exhaust available avenues for reversing the decision or be bound by the underlying findings. The proviso—that judicial character is a necessary precondition to trigger any obligation to exhaust—has until today been crucial. (See Ahmadi-Kashani v. Regents of University of California, supra, 159 Cal.App.4th at pp. 460-461 [in the absence of a “ ‘quasi-judicial’ ” hearing, the plaintiff was free to abandon an internal grievance process and pursue her claim in court without exhausting any internal remedies].)

Now, through legerdemain, this precondition has been erased. The procedures Murray actually was afforded lacked even minimal judicial character; under extant precedent, he should have been under no obligation to exhaust further administrative remedies. Instead, the majority reasons (with a certain circularity) that if a party has the right to appeal (but fails to do so), the findings will achieve a judicial character, and if the findings achieve a judicial character, the party is required to pursue an appeal. The right of appeal in title 49 United State Code section 42121 proceedings is thus employed to serve a remarkable double duty, both to mandate its own exercise by transforming into having judicial character findings wholly lacking in such, and then, by its mere availability, to bar the pursuit of all other avenues of relief.7

As a policy matter, the likely consequence of the majority’s novel rule is that parties in the future will be more cautious in initiating available *887voluntary proceedings, with the inevitable result that fewer grievances will be resolved informally. Instead, lawsuits will be filed at the outset, thus increasing the burdens on the court system. (See Ahmadi-Kashani v. Regents of University of California, supra, 159 Cal.App.4th at p. 459.)

As its final justification, the majority invokes “[considerations of comity and federalism” (maj. opn., ante, at p. 879), but neither has any bearing here. Insofar as federalism is concerned, Congress could have, but did not, preempt parallel state remedies when it adopted a federal whistleblower administrative remedy. (See Gary v. Air Group, Inc. (3d Cir. 2005) 397 F.3d 183, 190; Branche v. Airtran Airways, Inc. (11th Cir. 2003) 342 F.3d 1248, 1261-1264.) Nothing offends federalism principles in permitting an unpreempted parallel state proceeding to go forward.

Nor is comity a concern. Notably, the majority accords the results of the administrative investigation a weight it is not clear the Department of Labor or the federal courts would grant them. In Hanna v. WCI Communities, Inc., supra, 348 F.Supp.2d 1322, the court considered whether preliminary findings issued in response to a title 49 United States Code section 42121 complaint should be accorded collateral estoppel effect.8 The court pointed out that, in a proceeding brought under section 42121, “the [Department of Labor]’s own regulations state that res judicata or collateral estoppel treatment is only appropriate when ‘a complainant brings a new action in Federal court following extensive litigation before the Department that has resulted in a decision by an administrative law judge or the Secretary.’ 68 [Fed.Reg.] § 31860, 31863 (2003).” (Hanna, at p. 1331.) There, as here, no decision had been issued by either an administrative law judge or the review board responsible for issuing final decisions in the Secretary of Labor’s name; *888accordingly, findings based only on an investigation and not a “ ‘trial-court like hearing’ ” were an insufficient basis for collateral estoppel. (Ibid.) I see no warrant for according the Department of Labor’s informal investigation a status equal to that of a fully litigated trial or administrative hearing when neither the Department nor the federal courts would uniformly do so.

IV

Application of collateral estoppel depends not only on whether the strict requirements for estoppel have been satisfied, but also on whether the core public policies underlying it—“preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation”—support its invocation. (Lucido v. Superior Court, supra, 51 Cal.3d at p. 343; see also Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 829; People v. Sims, supra, 32 Cal.3d at p. 483.) As well, we have cautioned that preclusion in the administrative context must be applied more flexibly than where the prior decision was judicial. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1290-1291 [265 Cal.Rptr. 162, 783 P.2d 749].)9

Here, no loss of judicial integrity would ensue were estoppel denied, because the prior findings were issued in a nonjudicial forum; thus no risk of inconsistent judicial outcomes is present. (See Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 833.)10 Second, judicial economy is not an issue because the original proceeding involved no expenditure of judicial resources. (See Vandenberg, at p. 833.) Third, if the possibility of a whistleblower pursuing both federal and state remedies were deemed vexatious, Congress could have seen fit to preempt state remedies. It did not.

In the end, the majority turns its back on precedent, imposing collateral estoppel as a form of sanction for failing to exhaust that which, as an initial matter, was never required to be exhausted. Collateral estoppel should not be *889about punishment, but about the reliability of the administrative findings we substitute for a full and fair judicial hearing, appropriate if and only if we have faith in the processes that produced those findings. As such faith is unwarranted here, I respectfully dissent.

George, C. J., and Kennard, J., concurred.

There was no statutory exhaustion requirement that obligated him to pursue an administrative remedy. (See Murray v. Alaska Airlines, Inc., supra, 522 F.3d at p. 921; 49 U.S.C. § 42121(b)(1).)

The majority emphasizes language in these cases that explains that issue preclusion depends in part on whether there was an “ ‘opportunity to litigate’ ” an issue, rather than on whether the estopped party actually litigated the issue. (Maj. opn., ante, at pp. 869-874.) But what the majority ignores is the context: in each and every one of the cases relied upon, the opportunity to litigate was afforded before the decision being given preclusive effect was reached. Thus, as noted above, each case involved a full hearing and a party’s decision, at that full hearing, not to step forward with better evidence.

The majority relies on a federal district court case, Fadaie v. Alaska Airlines, Inc. (W.D.Wn. 2003) 293 F.Supp.2d 1210, for the opposite view. As Fadaie was decided under Washington law (see id. at p. 1219, fn. 3), it has limited relevance here. Moreover, Fadaie’s conclusions have been rejected by a more recent district.court case considering the same question we face—whether a title 49 United States Code section 42121 investigation alone, without a hearing, is a worthy basis for collateral estoppel—and concluding, as I would, that it is not. (See Hanna v. WCI Communities, Inc. (S.D.Fla. 2004) 348 F.Supp.2d 1322, 1330-1331.) The majority attempts at exhaustive length to paint Hanna’s discussion of collateral estoppel as dicta. (Maj. opn., ante, at p. 875, fn. 6.) While I disagree with this characterization, it matters little; the views of a lone federal trial judge in Fadaie on an estoppel question under Washington law, which have been disagreed with elsewhere in holding or dicta, simply cannot sustain the majority’s conclusion against the mass of contrary authority under California law.

It is in this sense that failure to act would render the preliminary findings final. Finality is a necessary, but not a sufficient, condition for imposition of issue preclusion. (See Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 835; Sanderson v. Niemann (1941) 17 Cal.2d 563, 573-575 [110 P.2d 1025]; Rest.2d Judgments, § 13.) The majority’s attempt to make more of the findings’ finality, suggesting that so long as a decision is final it “must be given preclusive effect” (maj. opn., ante, at p. 878), is without any semblance of support. Decisions may have preclusive effect if they are final and the proceedings leading up to them were sufficiently judicial in character. (Pacific Lumber Co., supra, 37 Cal.4th at p. 944.) The case the majority relies upon, Tice v. Bristol-Myers Squibb Co. (W.D.Pa. 2007) 515 F.Supp.2d 580, says no more than that.

The majority chides Murray for failing formally to seek approval to withdraw his complaint, as if that failure adds weight to the investigative findings. (Maj. opn., ante, at pp. 868, 878; 29 C.F.R. § 1979.111(a) (2010).) However, the approval requirement was inserted to benefit complainants, as a way of protecting against coercion. (See 68 Fed.Reg. 14100, 14106 (Mar. 21, 2003) [the regulations permit “a complainant to freely withdraw his or her complaint without prejudice. . . . The purpose of the Assistant Secretary’s approval is to help ensure that the complainant’s withdrawal is, indeed, made freely without threat of coercion or unlawful promise”].) To turn such a protection into the basis for a quasi-exhaustion requirement is unwarranted and unsound.

Numerous courts and commentators have recognized the significance of foreseeability in deciding whether the application of preclusion in a given case is appropriate. (See, e.g., Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 330 [58 L.Ed.2d 552, 99 S.Ct. 645]; The Evergreens v. Nunan (2d Cir. 1944) 141 F.2d 927, 929 (opn. of Hand, J.); see also Levine, Preclusion Confusion: A Call for Per Se Rules Preventing the Application of Collateral Estoppel to Findings Made in Nontraditional Litigation, 1999 Ann. Surv. Am. L. 435 [discussing ways in which the unforeseeable application of preclusion undermines the policies justifying it]; Note, For One Litigant’s Sole Relief: Unforeseeable Preclusion and the Second *886Restatement (1992) 77 Cornell L.Rev. 905, 923 [“A court that invokes preclusion in an unforeseeable manner cannot legitimately dismiss the precluded party’s complaints by repeating the old slogan that ‘[t]he predicament in which [he] finds himself is of his own making.’ ”].)

The need for foreseeability is especially keen in the administrative context, where uncertainty over the application of estoppel will be greater and may significantly impact how parties elect to proceed. The fairness of imposing preclusion in such a context should hinge in part on whether the parties could have foreseen the significance of an issue for later proceedings. (See Bowen v. U.S. (7th Cir. 1978) 570 F.2d 1311, 1322; see also Note, Collateral Estoppel Effects of Administrative Agency Determinations: Where Should Federal Courts Draw the Line? (1988) 73 Cornell L.Rev. 817, 826.) Here of course, given the paucity of prior authority, Murray had no basis to foresee the preliminary administrative findings would have any bearing on his state rights; the imposition of estoppel is thus especially unjust.

The majority relies for support on Johnson v. City of Loma Linda, supra, 24 Cal.4th 61, but Johnson did not purport to require exhaustion of judicial avenues for overturning administrative findings except insofar as those findings were the product of quasi-judicial proceedings. (See McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at p. 114 [citing and distinguishing Johnson because it involved a full opportunity to litigate at an evidentiary hearing]; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1090 [6 *887Cal.Rptr.3d 457, 79 P.3d 569] [explaining that Johnson held administrative findings binding only when a party had “received an adverse quasi-judicial finding” and thereafter failed to set it aside].)

The majority today does precisely what I cautioned against in Johnson: imposes a collateral estoppel bar for neglecting to seek review of an adverse administrative decision without regard to whether the specific decision satisfied all the requirements for issue preclusion so as to trigger an exhaustion requirement. (See Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 81 (conc. opn. of Werdegar, J.); see also State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 975 [89 Cal.Rptr.3d 576, 201 P.3d 457].)

Hanna arose under a whistleblowers’ protection provision of the Sarbanes-Oxley Act of 2002 (see 18 U.S.C. § 1514A) that borrows the procedures of 49 U.S.C. section 42121 for its effectuation. (18 U.S.C. § 1514A(b)(2)(A).) As the majority necessarily recognizes in relying on Tice v. Bristol-Meyers Squibb Co., supra, 515 F.Supp.2d 580, another Sarbanes-Oxley case, cases arising under other statutory schemes that use section 42121’s procedures may be fully relevant, at least insofar as they address the effect of section 42121 proceedings rather than any substantive aspects of the underlying claims.

This flexibility is an outlet to ensure that preclusion is not imposed in unpredictable and unforeseeable circumstances. (See, e.g., Heiser, California’s Confusing Collateral Estoppel (Issue Preclusion) Doctrine (1998) 35 San Diego L.Rev. 509, 531-532; Note, The Collateral Estoppel Effect of Administrative Agency Actions in Federal Civil Litigation (1977) 46 Geo. Wash. L.Rev. 65, 83-84 [“When according estoppel effect to agency findings would foster harsh, unforeseeable effects, the court should invoke the judicially recognized principle of applying collateral estoppel flexibly to avoid injustice.”].)

Moreover, the United States Supreme Court has made clear that “[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” (Montana v. United States (1979) 440 U.S. 147, 164, fn. 11 [59 L.Ed.2d 210, 99 S.Ct. 970].) The one-sided investigation in this case certainly offers reason for such doubt.