Administrative Law

An employee who had complained about his supervisor, was terminated and then claimed retaliation for his whistleblowing was not required to exhuast his administrative remedies before the employer's human relations commission because the commission's decision would have been subject to review and change by the supervisor in consultation with the mayor.  To have the personally involved supervisor (who had been… Read More

The Agricultural Labor Relations Board's access regulation (Cal. Code Regs. tit. 8, § 20900) gives agricultural labor unions a limited right to access to agricultural workers while on their employer's property for an hour before and after work and during the lunch hour for four months out of the year.  This decision holds that the regulation is a per se… Read More

The Federal Housing Finance Agency's structure is unconstitutional in providing that the President can remove the head of that agency only for cause.  However, that fact does not invalidate the acts taken by the FHFA's head or entitle shareholders of Fannie Mae and Freddie Mac to damages unless they can prove that the restriction on the President's power (as opposed… Read More

Plaintiff is a medical doctor specializing in pain management.  CVS, a pharmacy, informed him it would no longer fill his patients' prescriptions, citing conerns he was over-prescribing controlled substances.  Plaintiff sued for an injunction directing CVS to fill his prescriptions.  Held, injunction properly denied.  The State Board of Pharmacy has primary jurisdiction over the issues in this litigation.  It enforces… Read More

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