Nelson v. U.S. Department of Housing & Urban Development

MEMORANDUM *

Brent and Bernard Nelson (“the Nelsons”) petition for review of a remedial order by an administrative law judge (“ALJ”) requiring them to pay damages, pay penalties and make retrofits to an apartment complex found to be in violation of the Fair Housing Act (“FHA”). The Secretary of Housing and Urban Development (“the Secretary”) cross-petitions for enforcement of the order. We have jurisdiction under 28 U.S.C. § 2342 (6). We deny the Nelsons’ petition for review and grant the Secretary’s cross-petition for enforcement.

The facts are known to the parties and we do not repeat them here.

We have “the authority to set aside an enforcement action when the agency has acted with arbitrariness or caprice.” Pfaff v. U.S. Dep’t of Hous. & Urban Dev., 88 *637 F.3d 739, 747 (9th Cir.1996). Legal conclusions are reviewed de novo. Id. at 744 . Factual findings are reviewed for substantial evidence. See Bear Lake Watch, Inc. v. F.E.R.C., 324 F.3d 1071 , 1076 (9th Cir.2003).

I

The Nelsons argue that the ALJ’s Initial Decision became a final order because the Secretary’s review was untimely. A prior Ninth Circuit panel addressed and rejected this argument in the Nelsons’ previous…