Administrative Law Advice & Counseling
Clients turn to O’Melveny’s Administrative Law Group for critical analysis and affirmative strategies to navigate the dynamic administrative landscape.
Clients turn to O’Melveny’s Administrative Law Group for critical analysis and affirmative strategies to navigate the dynamic administrative landscape.
An ever-changing array of state and federal statutes and regulations shape how businesses and other entities operate, compete with each other, and obtain government funding and approvals essential to their operation. Navigating the web of overlapping and, at times, conflicting rules is a constant challenge—with evolving regulations issued by hundreds of state and federal government agencies, a growing tide of executive orders, and novel legislation emerging from state capitals and Washington, D.C.
Clients turn to O’Melveny’s Administrative Law Group for critical analysis and affirmative strategies to navigate the dynamic administrative landscape. Our team advises clients anticipating and responding to new federal and state policies—including determining their import for day-to-day operations and impact on long-term objectives, as well as crafting strategies for how best to respond. Those responses range from participation in agency-level proceedings to lawsuits challenging final agency action or legislation, as well as litigating Administrative Procedure Act and Tucker Act challenges to agency actions and challenges to state and federal legislation.
We bring a multidisciplinary approach to agency matters, with a team that features established litigators, industry experts, and more than 50 former senior government appointees, regulators, investigators, and prosecutors. We also draw on a roster of leading appellate practitioners, including former US Supreme Court clerks and more than 100 former federal circuit court clerks, to help address agency actions implicating constitutional law and complex issues of first impression.
Clients across industries and sectors turn to us for guidance at every phase of the administrative process:
- Interpreting newly proposed guidance, rules and laws;
- Drafting comments to proposed rules;
- Filing administrative petitions proposing changes to existing rules;
- Facilitating proactive engagement with regulators;
- Presenting testimony before agencies;
- Defending and challenging agency-level adjudications and enforcement proceedings;
- Analyzing potential litigation challenges to final agency action or legislation; and
- Litigating challenges in state and federal court.
Representing two US-based BYD subsidiaries in litigation against the US Department of Defense in connection with the Department’s designation of BYD as a Chinese military company (“CMC”) and challenging the constitutionality of a related statute banning lobbyists from representing CMCs under the First Amendment.
Advised a health plan in dispute with CMS regarding regulatory margin requirements for Medicare Advantage and Part D bids over the course of several bid cycles. The plan obtained a favorable outcome each cycle, including after threatening suit.
Represented a national health insurer in a suit under the Administrative Procedure Act challenging a 2023 CMS final rule that adopted a new policy for calculating payment recoveries in Medicare Advantage risk adjustment data validation (RADV) audits. The district court ruled in the client’s favor, vacating the rule and enjoining the government from applying the new audit policy until CMS promulgates a rule consistent with statutory actuarial requirements.
Obtained summary judgment in a case brought by a group of tobacco companies against the Food and Drug Administration. The decision vacated a rule that would have required them to display graphic health risk warnings on cigarette packages. The tobacco retailers sued the FDA to block the rule on First Amendment, Administrative Procedure Act, and statutory grounds.
Represented US securities exchanges in a variety of matters related to prediction markets, cryptocurrency and digital assets, including helping develop submissions to the SEC’s Crypto Task Force on how the SEC should regulate digital assets and in their advocacy around forthcoming digital assets legislation. We are also providing broader strategic advice on SEC engagement considerations.*
Advised various higher-education clients on the proposed Compact for Academic Excellence in Higher Education, including the legal, operational, and compliance implications of this framework and its potential effect on core institutional functions, as well as the scope of the Executive branch’s power to terminate research grants and other kinds of public funding.
The US Supreme Court appointed O'Melveny to brief and argue Lucia v. Securities and Exchange Commission, which concerned the constitutional status of administrative law judges within the SEC.
Represented HCSC against the federal government before the Federal Court of Claims, resulting in a US$2 billion award to HCSC for unpaid risk corridor payments related to the Affordable Care Act.
Represented several US and international airlines in an action brought against the Animal and Plant Health Inspection Service agency (APHIS) of the United States Department of Agriculture (USDA) contending that the collection of the reserve portion of the commercial aircraft inspection fee was an illegal exaction under the Tucker Act.
Led a successful challenge to Measure Z, a 2016 ballot initiative passed in Monterey County, California that sought to shut down oil and gas operations under the auspice of regulating wastewater injection and hydraulic fracturing (which does not occur in Monterey County).
Prevailed in groundwater rights litigation on behalf of a coalition of farmers resulting in a comprehensive plan for allocating and better managing vital water supplies in one of California’s most productive regions. The complex matter involved both litigation adverse to as well as cooperation with the state agency, ultimately resulting in an affirmance of the plan by the California Court of Appeal.
Secured an injunction enjoining the California Department of Public Health (CDPH) from enforcing new regulations that limited the laboratories that pregnant Californians could use for prenatal genetic screening. The new CDPH regulations prevented patients from accessing the client’s cutting-edge testing products. The CDPH declined to appeal.
Achieved a landmark victory on behalf of Pennsylvania’s underfunded school districts and disadvantaged schoolchildren. Working alongside the Education Law Center and the Public Interest Law Center, the lawsuit was filed against state legislative leaders, state education officials, and the governor, for failing to uphold the General Assembly’s constitutional obligation to provide a “thorough and efficient” system of public education. Following a four-month trial, a Pennsylvania Commonwealth Court judge ruled in 2023 that the state’s school funding system is unconstitutional and must be reformed because it deprives students in low-income districts of quality educations.
*Led by current partner while at a previous firm.