Administrative Process
Final Examination
Professor Field --- Spring 2000
General Instructions
This is a three-hour, open-book exam. .... Please note that questions in Part I are worth four times as much as those in Part II and that not all questions are to be answered. Federal law applies unless otherwise indicated.
Part I
[80 points]
Answer any 20 of 24. If you answer more, I can count only the first 20.
1. The Ecological Permit Board decides how much waste that firms can discharge into water. Half of the time, courts do not uphold the EPB when 3d parties challenge its decisions. The explanation most likely to be publicly favored by the EPB is that:
A. Courts are less concerned about pollution than the EPB is.
B. It is more difficult to win in ex parte than in inter partes proceedings.
C. The EPB has been "captured" by those it regulates.
D. Doubtful decisions are most apt to be challenged.
2. When Goodhart challenged an EPB (Q.1) issued to Crudco, Crudco supplemented the sparse record with several affidavits and a host of supporting arguments. A court should:
A. refuse to consider the litigation affidavits.
B. affirm based on the affidavits.
C. remand for a more complete, contemporaneous EPB explanation.
D. affirm if it finds, on the basis of everything before it, that the EPB's decision is not irrational.
3. A privately-sponsored university study shows that Crudco's (Q.2) discharge levels pose grave risk of public harm. The study was was soon to be published, but the EPB heads, eager to see it, promised its authors to keep it confidential. Then, citing a compelling public interest, the EPB immediately reduced Crudco's allowed discharge levels by 60%. The study:
A. must not, under 5 U.S.C. § 552(b)(4), be given to Crudco.
B. need not, under APA § 558(c), be published before the EPB can act.
C. must be furnished to Crudco before its property can be taken in this way.
D. must, under APA § 558(c), be published before the EPB can act.
4. Before matters raised in Q.3 could be resolved, the study was published. Crudco challenged both it and the EPB's response before an ALJ. Crudco lost, and a three-person panel affirmed. Only two panelists were able to hear the oral argument, but the panel was unanimous.
A. That one panelist did not hear the argument is unlikely to warrant reversal.
B. If the study qualifies as hearsay, its use was clearly unwarranted.
C. Prior ex parte communication between the study's authors and the EPB warrants reversal.
D. Reversal is unwarranted because the proceeding at issue was rule making.
5. See Q.1. Plumbco's wastewater may contain 5 ppm of lead. It petitioned to raise the level to 10 ppm and by statute is entitled to a hearing. However, the EPB rules provide only for document review and possible oral argument. A court will likely find the EPB's rules to be:
A. invalid under a universal presumption that adjudicatory hearings must be formal.
B. acceptable only if APA § 553 was followed in promulgating them.
C. acceptable unless clearly inconsistent with relevant statues, including the APA.
D. invalid because they foster takings without due process.
6. Jones works for the FTC. He applied for a copyright, indicating that some of what he sought to register was done for his job. The Examiner phoned both Jones and his boss. She then rejected Jones' application because government works do not qualify. A court should:
A. reverse because of unwarranted contact with Jones' boss.
B. affirm unless Jones can dispute one or more facts in issue.
C. remand and order the examiner to ignore whatever Jones' boss told her.
D. affirm unless Jones did more than half of his work at the FTC.
7. The Consumer Hazard Agency regulates products. The Worker Risk Board regulates job safety. The CHA recently proposed circular saw regulations more stringent than the WRB's. No relevant statute refers to specific products or activities. Sawz, Inc. nevertheless asserts that any jurisdiction that the CHA may have had was lost when the WRB promulgated its rules.
A. Such inter-agency conflicts can be resolved only in the courts.
B. The WRB was clearly out of line because the CHA had exclusive jurisdiction over saws.
C. The CHA is clearly out of line; the WRB has primary jurisdiction over saws.
D. Sawz's protest is, at best, premature.
8. See Q.7. A WRB ALJ ordered Sawz to modify warnings on two industrial models to conform to WRB rules. Sawz seeks review; a court would be most justified in dismissing:
A. if WRB rules provide for intramural appeal.
B. because the WRB has primary jurisdiction.
C. if the WRB's statute is silent on court review.
D. because the dispute is not ripe.
9. After hearing, the WRB suspended attorney Klein's license for 3 months. Klein has proven that suspensions over 30 days have never been imposed for similar infractions. The record does not mention or discuss that issue. A reviewing court should:
A. reduce the suspension to 30 days.
B. dismiss for mootness.
C. affirm if the WRB's attorneys offer a reasonable explanation.
D. refuse to uphold the suspension.
10. Two days after completing informal rule making on toothpicks, the Consumer Risk Commission contacted the Molar Co. stating an intention to ask the Justice Department to seize products that do not conform to the new rules. If Molar is concerned; a court could:
A. dismiss unless the statute provides for rule-making review.
B. order the CRC to grant Molar a formal hearing.
C. review the CRC's rule and rule-making process.
D. dismiss for lack of any, much less final, agency action.
11. Proposed rules will facilitate copying data from CDs. Publishers of such CDs, predicting bankruptcy, lodged their concerns with the White House. The President then told the responsible agency head that he would be fired if the rules were adopted.
A. The President must be enjoined from interfering in such quasi-legislative matters.
B. The President's power in such matters is largely subject to statutory control.
C. The President's power in such matters raises only constitutional issues.
D. The President must be enjoined from interfering in such quasi-judicial matters.
12. See Q.11. Later the President relented, and the agency adopted the rules essentially as proposed. A challenger would be most likely to succeed by arguing that:
A. the agency's powers exceed the scope of a permissible Congressional delegation.
B. a senator threatened to reduce Agency's funding if the rules were adopted.
C. the agency ignored factual and policy issues advanced by many participants.
D. the agency is more likely than not to have erred in resolving competing technical forecasts.
13. Savvy sits on the Jonesburg Board of Variances. The JBV allowed her to sell parking on her lawn during Homecoming Weekend - despite strong protest from her neighbor, Cook. Later, Cook sought permission to sell food from his porch during the same event. Cook's variance was unanimously denied. The media reported Savvy to say "Now, we're even!" In equivalent circumstances, federal courts would be likely to:
A. require recusal of all current JBV members.
B. affirm if Savvy's vote made no difference.
C. affirm because there is "no law to apply" to such discretionary matters.
D. order rehearing with Savvy recused, even if her vote made no difference.
14. Personnel at the Poor Folks Board noticed that attorney Doofus often filed papers as much as a week after deadlines stipulated in various forms. He was suspended from practice before the PFB for a year, with two years' probation. Doofus admits often filing late but stresses that, until Fussy became Director, no one at the PFB objected. Fussy admits this but says that the PFB cannot tolerate such laxity. A reviewing court will probably:
A. affirm despite the PFB's reliance on incompetent evidence.
B. reverse because Doofus relied on established practices.
C. reverse because PFB deadlines were never published in the C.F.R.
D. affirm because Doofus admits exceeding clearly-stated deadlines.
15. The Royalty License Board collects payments for compulsory licenses. Funds in one account accrued a great deal of interest before a dispute over its proper allocation among claimants was resolved. Afterwards, licensees who paid into the fund insisted that accrued interest be returned to them. The RLB refused and distributed the entire fund to claimant-licensors. If that decision can be said to affect the protesters retroactively:
A. their rights have vested regardless of the RLB's process choice.
B. they are most likely to succeed if the RLB decided via adjudication.
C. they are most likely to succeed if the RLB decided via rule making.
D. the RLB's decision should be reviewed for clear error.
16. The Food Sanitation Board can seize unwholesome food. Despite considerable evidence to the contrary, the FSB concluded that unpasteurized orange juice may be unwholesome. Following a FSB press conference covered by large newspapers, the government began seizing unpasteurized orange juice.
A. Courts must defer to the FSB's interpretations of its statute.
B. if notice was also published in its field manual, the FSB's views will bind the courts.
C. The FSB's views would warrant more deference if APA § 554 had been followed.
D. The FSB's views would warrant more deference if APA § 553 had been followed.
17. See Q.16. Immediately after the FSB's press conference, the OJ Association filed a declaratory judgment action. It alleged harm because seized unpasteurized juice would spoil before the legal issues could be resolved. A court should:
A. require exhaustion; the issues are better addressed in seizure actions.
B. find the dispute ripe because the issues can be no better addressed in seizure actions.
C. dismiss because the FSB has unreviewable prosecutorial discretion.
D. dismiss; the bottlers should have made their arguments in rule making.
18. See Q.16. Faced with queries from Congress, a storm of protest by consumers who prefer unpasteurized juice, and one unsuccessful seizure action, the FSB dropped the whole thing. Later, working through a "consumer" organization, firms legally obligated to pasteurize their drinks petitioned the FSB to reinstate its campaign. If the FSB denies their petition, a court should:
A. affirm; these facts show virtually no basis for reversal.
B. require notice and comment rule making to support the FSB's change of position.
C. require the FSB to grant petitioners a formal hearing.
D. upset the FSB change of position because it bowed to congressional pressure.
19. The legislature directed the Bliss Motor Vehicle Department to address, within six months, problems posed by elderly automobile operators. BMVD Director Young championed a rule requiring annual renewal for drivers over age 69. After about a year, such a rule was adopted, but it affects only drivers over 74. If federal law applied, the rule:
A. would be void for tardiness in its promulgation.
B. cannot be upset for Young's expressed bias alone.
C. can be upset if BMVD refuses to afford individual hearings to current licensees.
D. would be remanded for further consideration without Young's participation.
20. After Angry Parents, Inc. petitioned the Kids Ad Board, the KAB proposed rules limiting ads aimed at children under the age of 12. Following the comment period, an age-6 rule was negotiated (off the record) with affected firms and implemented before publication. When the rule was published in the Federal Register, the KAB emphasized the scarcity of its resources and the benefits of the negotiated rule over, at best, long-term delays in seeking more. A legitimate, but not necessarily effective, argument for AP would be that:
A. agencies are presumptively unable to weigh their resources in making decisions.
B. ex parte contacts between agencies and firms are forbidden under APA § 557(d)(1).
C. the KAB lacks explicit authority to weigh its resources when taking action.
D. agency rules cannot take effect sooner than 60 days after publication.
21. See Q.20. Facing criticism as a "National Nanny," the KAB never strictly enforced those rules. Several bills were introduced to repeal them, but none passed either house. Eventually, KAB members appointed by a new Administration repealed them by Federal Register notice. If AP were to challenge that action, its best argument is that:
A. agencies must generally repeal rules using the same means they used to promulgate them.
B. this repeal warrants close scrutiny because Congression clearly approved of the rules.
C. standards used to review dispositions of rule-making petitions should apply.
D. standards used to review dispositions of requests for enforcement should apply.
22. A statute provides that beer licenses are available to any "grocery" or "inn" upon application. Morton, owner of the Dew Drop Inn, was twice denied for different reasons. The Liquor Licensing Board Director affirmed, offering yet another reason why the DDI is neither a "grocery" nor an "inn". In such circumstances, federal courts would:
A. order the LLB to promulgate rules defining "grocery" and "inn".
B. order DDI's license to issue for want of credible reasons to deny it.
C. review the LLB's final decision under APA § 706(2)(A).
D. require a result consistent with standard English dictionary definitions.
23. The Food Sanitation Board may seek, e.g., to jail those whose food contains unwholesome components. Because all food may have, e.g., a few inert mold spores, a field manual is used by FSB investigators to decide on action appropriate for various infractions. If Anna Septic requested a copy of the manual and were refused, a court should:
A. affirm unless Septic provides good reasons for having it.
B. affirm if the FSB argued that food processors could use it to evade the law.
C. affirm under § 552(b)(4) because it contains important FSB secrets.
D. lacking better reasons that any of those, order its release.
24. After Tattle blew the whistle on Crudco for exceeding the limits of several discharge permits, he was fired. In addition to other action against Crudco, the Ecological Permit Board could have sought Tattle's reinstatement. It chose not to pursue that. Despite the fact that EPB's enabling legislation is silent on the matter:
A. Tattle surely can bring action against Crudco as a statutory beneficiary.
B. Crudco is entitled to EPB documents explaining why Tattle's case was not pursued.
C. At Tattle's behest, a court would review under APA § 706(2)(F).
D. Each of the above statements is correct.
Part II
[20 Points]
Answer any 20 of 24. If you answer more, I can grade only the first 20.
[T] 1. Intramural appeals [C] 13. Formal adjudication
[V] 2. Injunctive orders [E] 14. Non-statutory review
[X] 3. Legislation [M] 15. Clearly erroneous
[R] 4. Litigation [P] 16. Documentary evidence
[H] 5. Interpretive and procedural rule making [J] 17. Law of the case doctrine
[A] 6. Collateral litigation [D] 18. Exemption 3
[F] 7. Private bill [S] 19. Residuum rule
[U] 8. Savings clause [K] 20. Independent agency
[O] 9. Scope of delegation [Q] 21. Prejudice
[B] 10. Remedial legislation [N] 22. Policy bias
[W] 11. Severability clause [L] 23. Litigation cost
[G] 12. Informal action [I] 24. Agency
A. May pose primary jurisdiction problems.
B. May be constitutional despite retroactivity.
C. Essentially defined by APA § 554.
D. Looks to statutory provisions outside FOIA.
E. If not explicitly addressed elsewhere, presumptive under § 704.
F. One way to get economic relief from a government.
G. Essentially defined as not subject to APA §§ 556 and 557
H. APA § 553 exempt.
I. Explicitly defined in the APA.
J. Possibly helpful to resolve jurisdictional conflicts.
K. Subject to limited executive control.
L. May weigh little on the scales of justice.
M. A standard of review with several possible meanings.
N. Often regarded as laudable.
O. Major determinant of court deference to agency rules.
P. A standard under which courts may review results more than rationale.
Q. Usually required before courts will reverse procedural errors.
R. Unlikely to bind those who cannot participate.
S. Requires that some "competent" evidence support a decision.
T. Addressed in APA § 557(b).
U. Intended to preserve, e.g., common law remedies.
V. More likely than other agency sanctions to be modified by courts.
W. May keep a whole document from being declared void.
X. Often binds persons who do not exist.
Top of page
Index to Field's Previous Exams