GOVERNMENT REGULATORY MATTERS: DEFENDING CLIENTS BEFORE STATE OR FEDERAL AGENCIES

Regulatory Matters

There has been an explosion of government regulation and oversight concerning the business sector. This has resulted not only in complex legal issues regarding how to comply with those regulations, but also a tremendous increase in the number of companies being the subject of administrative law hearings for violating those local, state and/or federal regulations.

The Nissenbaum Law Group both provides legal advice concerning basic regulatory compliance and also in regard to enforcement actions from the investigatory stage to the resulting administrative hearing to the potential appeal in a court of law.

Frequently Asked Questions

The following are frequently asked questions relating to the administrative hearing process.

FAQ 1. How are administrative agency proceedings started, and is there a way to stop them at the outset?

The basic manner in which administrative cases are commenced is that the agency will normally file an initial pleading such as a complaint, and the agency will assign an administrative law judge to handle the matter. , Since these are courts of the agency itself and not the judiciary, the due process afforded litigants in state or federal court is usually abbreviated to a great extent.

Typically, there are procedures that will allow a party to seek a dismissal of the action at the outset. That normally occurs when for example the wrong person has been listed as the respondent or the case is premised upon an erroneous allegation of material fact that can be easily disproven. However, those are unusual circumstances. The more likely scenario in which a case will be resolved at the outset is through a settlement by consent. The general approach would be for the respondent to agree that there was some type of violation of the agency’s regulations, but both the agency and the respondent also agree there is no need to pursue the matter to a hearing. Instead, they stipulate that it should be resolved instead through a consent order of some type.

FAQ 2. Is discovery allowed to take place in an administrative proceeding?

Discovery normally is allowed, but it is far less robust than in a state or federal court matter. The administrative law judge will generally prevent discovery from becoming onerous, and in fact, the standard is generally that it will be limited to that necessary to adduce probative evidence at the hearing. The larger point is that the judge has an unusual amount of discretion in deciding what is and is not an appropriate discovery device.

FAQ 3. How is an administrative hearing conducted?

The look and feel of an administrative hearing is generally similar to what is know as a “bench trial” (a trial with no jury) in the state or federal judicial system. Both sides may call witnesses, and cross-examine witnesses. The parties can introduce both documentary and testimonial evidence.

One of the issues that arises a fair amount is when a witness ignores an administrative subpoena. In such an event, the attorneys may need to enlist the powers of a judicial court to enforce a subpoena issued by an administrative one. This is especially so when the witness is located outside the jurisdiction of the administrative court.

The burden of proof in an administrative matter can be somewhat oblique. Generally speaking, it is fair to say that the party asserting the need for relief has the burden of presenting its case in a manner that provides a reasonable basis to consider awarding the relief and the party defending must overcome that burden. There is generally more nuance than that, and the specifics may vary.

FAQ 4. How are administrative hearings concluded?

Generally speaking, an administrative hearing will conclude when the parties have both rested their cases and the administrative law judge has provided their findings of fact and conclusions of law. The relief will not always be limited to a financial penalty, but can also result in an order requiring a party to take an action or preventing them from doing so. The latter is generally embodied in an injunction of some sort.

FAQ 5. Can the determination of an administrative law judge be appealed?

The typical scenario is that a final order of an administrative law judge can be appealed within a very short timeframe to a judicial court. The appeal is typically limited to a review the underlying record, one of many reasons that it is important for the administrative hearing to be accurately transcribed and the evidence admitted to be properly preserved. Having said that, there are also certain determinations that can be made by a court of law exercising “original jurisdiction.” That means the court can take testimony and is not bound by the underlying record.

The Nissenbaum Law Group has handled a variety of matters before administrative law courts and their corresponding agencies.

The firm has represented clients responding to administrative investigations, seeking to quash administrative subpoenas, defending against administrative proceedings or sanctions, responding to or initiating appeals of those rulings, and advising clients with respect to avoiding further liability. In that regard, the firm has appeared before the following agencies, among others:

• NJ Division on Civil Rights;
• NJ Department of Environmental Protection;
• NJ Board of Psychology Examiners;
• NJ Department of Homeland Security;
• NJ Department of Banking & Insurance;
• NJ Department of Community Affairs; and the
• NY Department of Labor.
• NY Division of Taxation;
• Ohio Unemployment Compensation Review Commission;
• PA Department of Labor and Industry;
• MA Department of Labor and Workforce Development;
• United States Federal Trade Commission;
• United States Food & Drug Administration;
• United States Patent & Trademark Office, and the associated Trademark Trial & Appeal Board; and
• United States Copyright Office.

The Nissenbaum Law Group welcomes inquiries from commercial clients who are facing administrative investigations or hearings before state or federal agencies. Click here to contact us.