Administrative Law

Applying Kisor v. Wilkie (2019) 139 S.Ct. 2400 and its analysis of Auer deference, this decision concludes that a decision of the HHS Departmental Review Board which interpreted an ambiguous HHS Medicare regulation was entitled to Auer deference.  The Board's interpretation was "authoritative" because the Board issues HHS' final decision in contested cases, subject to federal court review.  The interpretation… Read More

To secure a Coastal Commission permit to build a beach house, the prior owner agreed to grant the Coastal Conservancy a 5-feet wid public easement along one side of the house to afford public access to the beach.  After a public acceptance of the easement was recorded, the prior owner then ignored it and built an unpermitted deck above the… Read More

A court reviews a agency regulation adopted pursuant to quasi-legislative authority delegated by Congress under an arbitrary and capricious standard, requiring the regulation to be reasonable and reasonably explained.  5 USC 706(2)(A).  However, judicial review is deferential.   A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues… Read More

The Administrative Procedure Act allows only three remedies for discovery abuse in the course of an administrative proceeding.  First, the requesting party may file a motion before the ALJ conducting the proceeding to compel the discovery.  (Gov. Code, 11507.7(a).)  Second, that party may request monetary sanctions from the supervisor ALJ, managing the regional ALJ office.  (Gov. Code, 11455.30(a).)  Third, the… Read More

USC did not exceed its jurisdiction in suspending Alpha Nu for six years as a result of its misconduct in hazing pledges during the 2016 rush week even though it acted on a complaint filed 14 months later.  USC's internal disciplinary process is not governed by any statute of limitations.  Here, the complaint was just two months later than USC's… Read More

The plaintiff in this employment discrimination case under FEHA adequately exhausted her administrative remedies by filing a charge with DFEH which named her managers, supervisors and coworkers as well as the fictitious business name of her employer.  The fact that the DFEH charge did not correctly identify the true corporate name of the defendant employer was no reason to bar… Read More

Even if interpretation of an administrative regulation does not depend on special expertise and technical knowledge, the agency's interpretation of its own regulation may be entitled to judicial deference because the agency is likely to be familiar with the policy it promotes and sensitive to the practical implications of the competing interpretations.  Here, the university was entitled to deference in… Read More

In a construction dispute that originally was over $22,096, the trial court did not abuse its discretion in awarding plaintiff only $90,000 in attorney fees out of the $292,140 requested.  The case was relatively simple, ultimately turning on the contractor's lack of a license and proper insurance.  It involved only money, so it was reasonable to compare fees against recovery… Read More

Despite the unconstitutional nature of the CFPB's original structure, the agency's civil investigative demand was enforceable since the current removable director of the agency had ratified the issuance of the CID.  The constitutional infirmity related solely to the CFPB's director, not to the agency itself or its staff which had issued the CID.  Seila law could not resist the CID… Read More

A plaintiff who brings a suit against a government entity must first file a government claim with the defendant entity.  If the plaintiff misses the 6-month deadline for presentation of a claim, she may, within a year of accrual of her claim, file a petition for leave to file a late claim.  If the entity denies the petition, the plaintiff… Read More