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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

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

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

Gov. Code 53069.4 allows local governments to enforce their ordinances through an administrative process for imposing and collecting fines.  Unlike most administrative proceedings that may be reviewed only by a writ of administrative mandamus under CCP 1094.5, a citizen can appeal to the superior court from a decision by that administrative process within 20 days after the decision. (Gov. Code… Read More

A court may abstain from adjudicating a suit that seeks equitable remedies if granting the requested relief would require a trial court to assume the functions of an administrative agency, or to interfere with the functions of an administrative agency.  Here, plaintiff sought injunctive relief against a local water service district to prevent a particular employee from operating its water… Read More

In hospital peer review committee proceedings, a person hired by a hospital to serve as a hearing officer may be disqualified for financial bias under Business and Professions Code section 809.2(b), on grounds that the officer has an incentive to favor the hospital in order to increase the chances of receiving future appointments.  Under the statute, a hearing officer is… Read More

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

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