Administrative Agency Civil Procedure

Read need-to-know updates, commentary, and analysis on Administrative Agency issues written by leading professionals.
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Merkens v. Federal - Injured Worker Who Failed To Challenge Termination Of Workers’ Comp Benefits In Industrial Commission Cannot...

The court of appeals affirmed. A workers’ compensation carrier can commit the tort of bad faith in two ways: (1) the intentional and unreasonable denial of a claim (“bad faith denial of benefits”); or (2) the intentional and...more

SCOTUS Jurisdiction Watch: Exhaustion of EEOC Administrative Remedies

On May 28, 2015, the United States Supreme Court is scheduled to meet and decide whether to grant or deny certiorari in Duble v. FedEx Ground Package System Inc., Supreme Court Case No. 14-1028. Petitioner, Duble, seeks...more

California-Based Storage Company Agrees to Settle SCRA Claims

On May 15, a San Diego-based storage company entered into a consent order with the DOJ to settle claims that the company’s practice of auctioning off active duty servicemembers’ stored belongings violated the Servicemembers...more

Clean Water Act: New Rule Significantly Expands Reach of Federal Jurisdiction

On May 27, 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) finalized the long-anticipated Clean Water Rule. The Rule defines the term “waters of the United States” as used by...more

Fees For Public Records Act Request Is Only Proper Where The Request Is "Clearly Frivolous"

In Bertoli v. City of Sebastopol, 2015 DJDAR 779, the California Court of Appeal for the First Appellate District decided a case involving a fee request under the California Public Records Act (“CPRA”)....more

Washington Department of Revenue takes same position on taxability of early termination fees being challenged in Massachusetts

In a ruling that will be of interest to taxpayers following Massachusetts appeals on the issue, Washington has issued recent guidance (see Washington DOR – Termination Fees) asserting that early termination fees for...more

USCIS on Amended H-1B Petitions for Change in Work Location

As previously reported, on April 9, 2015, the Administrative Appeals Office (AAO), which is responsible for the review of certain decisions rendered by U.S. Citizenship and Immigration Services (USCIS), issued a published...more

Having it Both Ways: Does the SEC’s Enforcement Division Guidance on Forum Selection Do Anything More Than Foreshadow Increased...

Earlier this month, the SEC’s Enforcement Division issued its “Approach to Forum Selection in Contested Actions.” This guidance comes at a time of heightened criticism regarding the SEC’s increasing reliance on administrative...more

Supreme Court Holds that Issue Preclusion May Apply to TTAB Decisions

In a 7-2 decision authored by Justice Alito, the Supreme Court held on March 24, 2015, that issue preclusion may apply to Trademark Trial and Appeal Board (TTAB) decisions. The case, B&B Hardware, Inc. v. Hargis Industries,...more

Kansas Thumbed Its Nose at EPA’s SIP Requirements — How’d That Work Out?

The D.C. Circuit Court of Appeals today rejected Kansas’s challenge to EPA’s disapproval of Kansas’s SIP revisions intended to comply with the Interstate Transport Rule. The Court found that EPA was not arbitrary or...more

Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP

Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley.  While the trade press has been focusing on the...more

New GAO Report on Contingent Workforce Shows 85% of Independent Contractors Are “Content with Their Employment Type”

A comprehensive government report on the contingent workforce made public two days ago revealed surprising data about independent contractors, finding that 85% of independent contractors “appeared content with their...more

Corporate & Financial Weekly Digest - Volume X, Issue 20

In this issue: - Section 16(b) Decision Provides Important Guidance - FINRA Requests Comment on Proposed Amendments to Rules Governing Communications With the Public - Form BE-10 Filing Deadline...more

Developments in Long-Term Care – Q1 2015

The following summary highlights key federal court cases and administrative decisions involving skilled nursing facility survey issues during the first quarter of 2015. Federal Court Cases - Fifth Circuit Upholds...more

EEOC Conciliation Efforts Subject To Limited Judicial Review

In Mach Mining, LLC v. EEOC, the United States Supreme Court held that the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) are subject to judicial review, although such review is limited to ensure...more

Texas Supreme Court: Companies Shielded from Defamation Claims for Statements in Internal Investigation Reports

Last week, the Texas Supreme Court joined the majority of jurisdictions in holding that a company enjoys an absolute privilege when providing the Department of Justice (DOJ) with an internal investigation report containing...more

Patent Safe Harbor Applies to Supplemental New Drug Applications

On May 13, 2015, the Federal Circuit confirmed in Classen Immunotherapies, Inc. v. Elan Pharmaceuticals, Inc. that the safe harbor provisions of 35 U.S.C. § 271(e)(1) can shield post-FDA approval activities from liability for...more

MassDEP Has A Lot of Discretion in Implementing the Global Warming Solutions Act

Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, the Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order...more

IP Dispute Resolution Review Newsletter, Spring 2015

In This Issue: - The New “Clear Error” Standard of Review in Patent Infringement Mediation - Trademark Trial Appeal Board Decisions Now Have Preclusive Effect - Engaging Panelists for Neutral Analysis Provides...more

SEC Enforcement Division Issues Guidance on Venue Selection

Respondents in SEC enforcement actions increasingly will litigate a wide array of matters in administrative proceedings, rather than having their day in federal district court. In the wake of significant public...more

Delay in Calling 911 After Accident Results in Willful OSHA Violation

Last week, the Seventh Circuit Court of Appeals affirmed a willful OSHA citation against an employer that delayed calling for emergency services for 90 minutes after an employee became trapped in a permit-required confined...more

IP Newsflash - May 2015 #3

FEDERAL CIRCUIT CASES - Federal Circuit Reverses Summary Judgment of Noninfringement Under § 271(e)(1) for Consideration of Certain Post-FDA-Submission Activities, But Expresses Skepticism About Infringement...more

Arizona ALJ: Remote Provider of Subscription Research Service is the Lessor of Tangible Personal Property

In a curious decision out of Arizona, an Administrative Law Judge (ALJ) found an out-of-state provider of online research services was properly assessed transaction privilege tax (TPT, Arizona’s substitute for a sales tax)...more

PTAB Clarifies Protocol for Expanded Post-Grant Panels

Today the Patent Trial and Appeal Board (“Board”) posted on its website Revision 14 of its Standard Operating Procedure 1 (SOP 1). SOP 1 covers the assignment of Administrative Patent Judges to merits panels, interlocutory...more

Delaware Bankruptcy Court: Debtors Can Offset Administrative Claims Before General Unsecured Claims

While section 503(b)(9) claims deserve priority payment over general unsecured claims, they do not provide a basis for stripping a debtor’s defenses in determining the allowed amount of a section 503(b)(9) claim....more

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