Fettgather v. Board of Psychology, C074166

Dr. Robert P. Fettgather, a licensed psychologist, was investigated after complaints about his behavior with patients; he refused interviews and failed to comply with investigational subpoenas.
The California Board of Psychology petitioned for and issued an order under Bus. & Prof. Code § 820 compelling Fettgather to submit to a psychiatric examination; Fettgather did not comply and did not appeal the order.
The Board filed an accusation and the ALJ recommended revocation of Fettgather’s license under §§ 821 and 2960 for willful failure to comply; the ALJ excluded evidence challenging the propriety (good-cause) for the § 820 order.
The Board adopted the revocation, Fettgather sought administrative mandamus, obtained a temporary stay, but the stay was lifted and his license was revoked; the trial court denied relief, relying on Lee v. Board of Registered Nursing.
On appeal, Fettgather argued he was entitled to challenge the merits of the § 820 order before being required to comply and that revocation for noncompliance violated due process, equal protection, and federal law.
The Court of Appeal affirmed: a licensee cannot contest the basis for a § 820 order prior to complying, the Board need not show good cause before issuing the order, and revocation for noncompliance under § 821 was lawful.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard for issuing a § 820 exam order	Fettgather: Board must show good cause for a § 820 order	Board: Statute authorizes order whenever it appears licensee may be impaired	Court: § 820 allows orders “whenever it appears” impairment may exist; no preconditioned good-cause hearing required
Right to challenge § 820 order before complying	Fettgather: entitled to contest validity of order at revocation hearing	Board: licensee must comply first and may later challenge results/accusation	Court: licensee has no right to challenge basis for § 820 order before complying; revocation for noncompliance depends only on failure to submit
Federal due process claim	Fettgather: revocation without ability to contest § 820 order violated procedural due process	Board: § 820 order is investigatory, does not immediately threaten licensure; public protection justifies procedure	Court: No federal due process violation; Mathews balancing favors requiring compliance before substantive challenge; Lee controls similar outcome
State due process / privacy / equal protection	Fettgather: state due process and privacy rights, and equal protection, were violated by excluding merit evidence	Board: statutory confidentiality and investigatory scheme protect privacy; licensees are not similarly situated to public for equal protection	Court: No state due process or equal protection violation; confidentiality provisions and public-safety interest justify scheme

Arnett v. Dal Cielo, 14 Cal.4th 4 (1996) (characterizes § 820 exam as investigatory power to assess practitioner fitness)
Lee v. Bd. of Registered Nursing, 209 Cal.App.4th 793 (2012) (holding merits of § 820 order irrelevant to revocation for noncompliance)
Kees v. Medical Bd., 7 Cal.App.4th 1801 (1992) (discusses investigatory § 820 exams and repetition with good cause)
Alexander D. v. State Bd. of Dental Examiners, 231 Cal.App.3d 92 (1991) (treats § 820 exam as investigatory and upholds confidentiality features)
Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for balancing private and public interests in procedural due process)
Dent v. West Virginia, 129 U.S. 114 (1889) (profession practice as protected property/liberty interest)
Conn v. Gabbert, 526 U.S. 286 (1999) (liberty interest in practicing a profession)