By Greg Care

I’ve written before about the risks residents and fellows take by not utilizing the internal “due process” or appeal mechanisms available to them when facing discipline or even remediation. Court decisions have taught time and again that forgoing an internal appeal in favor of proceeding directly to court can result in a dismissal of the lawsuit due to the so-called “exhaustion-of-remedies rule.” And, as I have noted in the past, it is important to act quickly so as to make a timely appeal when deadlines to do so can be as short as a few days.

A recent decision by a California appellate court has confirmed that these issues affect faculty as well.

In Vangsness v. University of Southern California, No. B323220 (Cal. Ct. App., Nov. 22, 2024) (unpublished), Dr. Vangsness, an orthopedic surgeon and tenured professor at USC, was suspended without pay for one semester as a result of an internal investigation. A faculty handbook required faculty to appeal such findings within five calendar days. USC rejected Dr. Vangsness’s December 1, 2017 appeal as untimely because the initial finding had been communicated to him on October 30, 2017 and finalized the next day and, further, because Dr. Vangsness had not supplied a written statement on the matter by the dated requested—November 10, 2017. USC also took the position that the internal grievance Dr. Vangsness filed later could not supersede the disciplinary process and moot the untimeliness of the prior appeal. After a protracted grievance process, the president of USC issued a final decision affirming that Dr. Vangsness’s rights were not violated.

Dr. Vangsness then sued USC and its president, asking the trial court for a “writ of mandate” under a California law that allows a court to review the validity of determinations by private organizations “made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.” Cal. Code of Civil Procedure § 1094.5(a). 

The trial court concluded that Dr. Vangsness failed to exhaust his administrative remedies when he did not timely and properly appeal the initial factual findings and conclusions from October 2017. Further, the court found that Dr. Vangsness did not identify or discuss any legal theory that would excuse the untimely appeal, nor did he establish that exhausting the administrative remedies would be futile.

On appeal, the higher court recited the now familiar general rule that “the exhaustion of administrative remedies is a jurisdictional prerequisite before one can resort to the courts, and not a matter of judicial discretion.” It also noted at least two exceptions to the rule, namely: when an administrative process will be futile, and when the agency whose decision is being challenged has acted affirmatively in a way that caused the failure to exhaust administrative remedies. 

The appellate court held that Dr. Vangsness’s petition for a writ of mandate was properly dismissed because he failed to make a timely appeal (and also failed to send it to a person who was required to receive it), the grievance process did not supplant the appeal, and that none of the exceptions to the rule on exhaustion of administrative remedies applied. 

Since it was undisputed that the December 1, 2017 appeal was untimely, the most significant ruling is on whether that untimeliness was excused. The court reviewed this first under the legal principle of estoppel, which essentially boils down to preventing USC from asserting a position that contradicts what it said or did before that Dr. Vangsness reasonably relied on. Here, the court saw no connection between estoppel and Dr. Vangsness’s claim that he was prevented from appealing sooner because he was in China at the time the findings were issued (a claim it also found implausible). It also rejected Dr. Vangsness’s argument that the vice dean for faculty affairs misled him about what was required to appeal. The court reasoned that the vice dean’s generic comments about the process—which predated the initial and final findings against Dr. Vangsness that did recite appeal rights—“did not include details about the OED process, did not purport to discuss appellate rights, did not represent that Vangsness could appear before a faculty committee, and did not state the faculty committee would reconsider factual findings made by OED.” Accordingly, the court held that Dr. Vangsness’s assumption that he did not need to act sooner based on the vice dean’s vague comments was not reasonable, and thus could not support a finding of estoppel. And finally, the court stated there was no evidence of futility, i.e., that the ultimate decision was predetermined and would not have been altered by a timely appeal. 

This case underscores the harsh realities relating to internal “due process” and appeal processes in academia. Despite many institutions’ claims that they wish to have a fair and equitable process for resolving disputes, many of them impose exceedingly short deadlines to act (including USC, with its five-day deadline). Compounding the unfairness, many of these appeal policies require a comprehensive explanation of the reasons for one’s appeal on that same short deadline. This is a tall order for anyone, even if they have nothing else to do in that timeframe but compose the appeal and have immediate access to a lawyer. To expect a professor who is also a busy surgeon, or a resident working 80-hour weeks, to do so is absurd. While this court decision is not entirely surprising given the rigid application of legal principles I tend to see in these cases, it is clear to me there are grave issues of elevating form over function here and in countless other situations.

As we have seen, the earlier one acts, the better. If you have questions regarding remediation, probation, suspension, dismissal, or other forms of discipline, reach out to us to see if we can assist. 

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