Administrative Law

A claim under the Administrative Procedure Act that a federal administrative agency's regulation is contrary to the enabling statute must be filed within 6 years after the claim accrues.  28 USC 2401.  This decision holds that the claim accrues and the six years begins to run when the plaintiff is injured by the challenged regulation--since before then, the plaintiff lacks… Read More

When the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial, so the SEC must proceed in court, and not before its own administrative tribunals to recover civil penalties.  Securities fraud replicates common law fraud. The 7th Amendment applies to all actions, including statutory claims, not within equity or… Read More

The university did not deny plaintiff students a fair hearing before expelling them for engaging in prohibited hazing activities in fraternity initiation of new pledges.  Unlike cases that turn largely on disputed facts and credibility of witnesses, in this one most of the alleged hazing activities were undisputed.  In that context, it was not a denial of a fair hearing… Read More

Following California DUI Lawyers Assn. v. California Department of Motor Vehicles (2022) 77 Cal.App.5th 517, this decision holds that an individual is entitled to a new hearing before a non-conflicted DMV hearing officer only when the record of the administrative proceedings before the original hearing officer shows that that officer in fact acted as an advocate/prosecutor rather than merely as… Read More

Following Lippman v. City of Oakland (2018) 19 Cal.App.5th 750, this decision holds that Building Code section 1.8.8  requires a city to provide for appeals from administrative determinations (here of a nuisance on plaintiff's property) before an independent agency or board authorized to hear such appeals or the city’s governing body.  Hearing before a single employee of the building department… Read More

Under Gov. Code 800(a), a plaintiff that successfully challenges an administrative decision that was the result of arbitrary or capricious action or conduct by a public entity or officer may recover attorney fees of up to $7,500 in the trial court's discretion.  Even if that statute requires the overturned administrative action to be "wholly" arbitrary and capricious, it does not… Read More

Under Labor Code 5908.5, the Workers Compensation Appeals Board must act on a petition for rehearing within 60 days.  The Board's current practice of granting rehearing for study does not comply with the statute.  Though the Board says it carefully reviews petitions before granting-for-study, its grant-for-study orders do not state in detail the reasons for its order granting rehearing for… Read More

A private university must comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, but the university is not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in… Read More

Under Gov. Code 11507 and 8 Cal. Cod. Regs. 371.2, Cal. OSHA may amend its accusation against an employer for safety violations before or during the administrative hearing so long as the employer is not prejudiced by the amendment.  This decision affirms the Cal. OSHA Appeals Board's decision that the amendment of the accusation to allege a violation of a… Read More

An administrative agency’s discretionary order may be upheld only on the same basis articulated in the order by the agency itself.  If a court finds the agency's articulated basis to be legally erroneous, it must reverse and remand to the administrative agency for further proceedings, not affirm the agency's order on other grounds. Read More

The Major Questions Doctrine requires “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Util. Air. Regul. Grp. v. EPA (2014) 573 U.S. 302, 324.  The doctrine did not apply to invalidate President Biden's Executive Order requiring federal contractors to have their employees follow COVID-19 safety protocols including vaccination requirements. … Read More

A party that challenges the constitutionality of FTC or SEC administrative tribunals may sue in federal district court to enjoin administrative proceedings against them, rather than undergoing the administrative hearing and then challenging any adverse decision by appeal in the appropriate Court of Appeals.  The harm the plaintiffs claim is being subjected to the allegedly unconstitutional administrative proceeding, and that… Read More

If a respondent fails to file a notice of defense to an accusation by the ABC Bd., it may act based on its own evidence.  However, the ALJ has discretion to hold an evidentiary hearing even if no notice of defense is filed, and the board may vacate a decision if a motion requesting relief for inadvertence, surprise or excusable… Read More

An administrative hearing need not be conducted according to the rules of procedure and evidence used in civil trials.  Instead, any relevant evidence may be considered if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. (Gov. Code, § 11513(c).)  So, here the department's hearing officer did not err… Read More

Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a particular combination of circumstances creating… Read More

While the scope of a student's right to a fair hearing before discipline is uncertain and evolving, one thing is clear:  the school must follow its own published procedures in determining whether to discipline a student.  Here, the defendant school's procedure said that students would have the right to cross-examine witnesses.  The school misinterpreted this as granting cross-examination only if… Read More

University did not deny male student fair process when it suspended him for two years for unconsented sex with another student without holding a hearing at which the male student could cross-examine the female victim.  Where credibility is crucial, a hearing and cross-examination may be required, but here, the male student's own account of the evening and the female student's… Read More

Contrary to 40 years of appellate authority, this decision holds that when a trial court must exercise its independent judgment in ruling on an administrative mandamus petition under CCP 1094.5 and the administrative agency was required to apply a clear and convincing evidence standard in the administrative proceeding, the trial court cannot affirm based on a preponderance of the evidence… Read More

Plaintiff adequately exhausted her administrative remedies under the FEHA by filing a complaint with the DFEH that nearly correctly named her employer's dba Hooman Chevrolet (instead of Hooman Chevrolet of Culver City) but got the corporate name of the employer wrong Hooman Enterprises, Inc. (instead of NBA Automotive, Inc.).  The administrative complaint also correctly named the plaintiff's supervisor and other… Read More

The department's annual cap on the amount of 1, 3-D pesticide that could be applied within a township was an illegal underground regulation that was not adopted, as it should have been, in compliance with the Administrative Procedure Act.  Even though only one company (Dow Chemical) produced 1,3-D pesticides, the township cap program applied generally to all users of the… Read More