Administrative Process
Final Examination

Professor Field ---- Fall 1999

[Correct answers in Part I are indicated in bold. I was gratified to see that correct choices far exceeded incorrrect choices on most questions. In the few instances where that was not true or several people made a particularly bad choice, I've annotated.]

General Instructions
This is a three-hour, open-book exam. You may consult any written materials, but do not discuss your exam with others.
Answer questions on the sheet provided, but not all are to be answered. Questions in Part I are worth four times as much as those in Part II. Federal law applies unless otherwise clearly indicated.

Part I

[80 points]
24 Questions -- Answer only 20
Specific instructions: Most questions refer to some specific, generally fictional "Agency," as in question 1 (Q1); unless explicitly cross-referenced, each agency is different.
1. Agency oversees widget safety. Its newly-published guideline indicates that Ebart's (and others') products may be seized unless substantial changes are made. Ebart wishes to challenge both a lack of any process and the guideline's merits.
A. If this action is final, it is presumptively reviewable.
B. Absent explicit provisions for review, the guideline can't be reviewed now.
C. Because Ebart's rights are already adjudicated, immediate review is available.
D. Absent explicitly conferred standing, Ebart should be denied review.
2. Action was brought in federal district court to seize Ebart's non-conforming (Q1) widgets. Ebart wants a jury trial. This statute is silent, but most seizure actions permit juries.
A. J. B. Williams suggests that jury trials are unavailable unless explicitly conferred.
B. Goyan holds that jury trials are unavailable unless explicitly conferred.
C. J. B. Williams offers some support for a jury trial.
D. Goyan strongly supports the right to a jury trial.
3. Assume, despite issues posed in Q1, that Ebart might have been able to challenge Agency's guideline when first adopted. Agency now asks a court to order compliance. Ebart's prior failure to challenge the guideline:
A. means that the guideline binds the court.
B. clearly prevents review if any statutory period review for Agency action has expired.
C. does not prevent his challenge in these circumstances.
D. means that Ebart can challenge only the process used to adopt it.
4. Agency Appeal Board has 25-30 members, but three-person panels may decide most cases. Oral arguments are sometimes denied, but Whiner got to argue. Later, a panel member retired and another was substituted. Whiner lost unanimously; on court review, he:
A. will prevail; due process requires that those who hear must decide.
B. has no chance of prevailing after the whole panel ruled against him.
C. will prevail; due process requires that those who decide must hear.
D. is likely to lose any challenges to the substitution.
5. The D.C. Circuit has exclusive jurisdiction to review some Agency actions. But for that, the Nth Circuit would have exclusive jurisdiction at this stage of review. It transferred, sua sponte, Foober's Agency challenge to the D.C. Circuit. The D.C. Circuit may not reject the transfer:
A. unless it finds jurisdiction inconceivable.
B. if it finds jurisdiction plausible.
C. unless the Nth Circuit shows a "monumental misunderstanding" of the law.
D. None of those; the D.C. Circuit must keep the case.
6. Apex sells Deer-Skin® moccasins made of acrylic. The mark is federally registered. The FTC found the mark deceptive and ordered it to use another mark. Apex claims that the FTC lacks power to find a registered mark to be deceptive. Apex's rights are likely to turn on:
A. collateral estoppel.
B. primary jurisdiction.
C. whether the FTC adequately explained its choice of remedy.
D. whether Apex won a similarly-based 15 U.S.C. § 43(a) action.
7. Mort did not challenge either of two drivers license suspensions for druken driving. Now, his license has been revoked for an indisputable third offense. The Bliss Safety Dept. (BSD) refuses even to consider a strong fact-based defense to his first suspension.
A. If BSD will not reconsider Mort's first offense, a reviewing court must.
B. The exhaustion doctrine hinders courts from revisiting Mort's first offense. -- see McKart.
C. BSD has clearly denied Mort due process.
D. The finality doctrine hinders courts from revisiting Mort's first offense.
8. Before initiating criminal actions, Agency must afford an "opportunity to be heard." Based on only documents and oral argument, it seeks penalties from BarCo. If BarCo asks for dismissal based on inadequacy of its hearing,
A. its defense costs will warrant little consideration. -- see SOCAL.
B. its anticipated expenses compel de novo examination of probable cause.
C. it could succeed for lack of constitutional due process.
D. it could succeed for lack of process due under the APA.
9. Agency refused pre-market approval for Waldo's widgets. A court reversed on the basis of a statutory interpretation neither advanced by Waldo nor considered by Agency; it also granted the denied approvals. That Court's approach is:
A. well within its authority; courts must apply the law as they interpret it.
B. inconsistent with its duty to always apply the law as interpreted by Agency.
C. consistent with its duty to correct clear mistakes of fact.
D. well outside customary court powers. -- (for two reasons).
10. Agency is within the Department of Flubs. Agency Commissioner refused Bishley's application for a farm subsidy. Instead of pursuing statutory review, Bishly got the Secretary of Flubs to approved the subsidy. If others don't give Bishly the money, he can probably:
A. get it because supervisors can always overrule subordinates.
B. not get it because Secretary's approval seems to lack statutory authority.
C. get it, but only if Bishly files under the Federal Tort Claims Act.
D. not get it because only relief "other than money damages" is available under APA. § 702.
11. Smith chairs the five-person Agency. Before that, she coordinated Senator's high-profile investigation of deceptive gizmo sales. In hearings, Senator berated Scunky as one of the worst offenders. Recently, Scunky was charged with violating Agency's statute. Despite a formal hearing, Smith et al. hold ultimate power. Smith's prior involvement warrants a court's ordering:
A. dismissal.
B. dismissal, but only if Smith also instigated the complaint.
C. recusal from involvement in Scunky's case.
D. recusal, but only if Scunky can show that Smith has an "unalterably closed mind."
12. Scunky (Q 11) got lucky. Agency withdrew its complaint in favor of rule making focused on practices Senator found most offensive. Smith's prior involvement:
A. is highly relevant, any court-would order a halt to Agency rule making.
B. warrants a court-ordered halt, but only if Smith initiated the rule making.
C. warrants a court's ordering recusal from any rulemaking involvement.
D. is irrelevant unless Smith is clearly shown to have an "unalterably closed mind."
13. Attorney was unaware of Agency's new form for seeking (generally pro forma) extensions of time. He used an old form and was denied an extension after a critical date had already passed. That denial might be improper unless Agency:
A. announced its new form in the Federal Register.
B. adopted the form after informal rule making. -- rule of practice probably exempt.
C. published its new form in the Code of Federal Regulations. -- no basis for this; see, e.g., Fressola.
D. for all the reason given above.
14. Following an ex parte process, Agency penalized Foober for using fraudulently false information to seek gizmo certification. Reviewing the facts, a Court:
A. must give the deference uniformly accorded under APA § 706(2)(A).
B. might justifiably give less deference to findings beyond Agency's primary competence.
C. must give the deference uniformly accorded under APA § 706(2)(E).
D. might affirm if findings of fraud are supported by a preponderance of evidence.
15. Since 1974, manufacturers must prove that new widgets are not unreasonably risky. A 1998 amendment required pre-`74 widgets to be shown as safe before sale. Agency has promulgated implementing rules. WidgeCo challenges the amendment and rules.
A. It will be helpful to WidgeCo if the amendment is regarded as "curative."
B. It will be unhelpful to WidgeCo if the amendment is regarded as "curative."
C. Any rule that forbids sale of widgets legal before 1998 is invalid under APA § 551(4).
D. Disallowing sale of widgets legal before 1998 amounts to an illegal taking.
16. Agency revised its attorney conduct standards in May by publishing a pamphlet. It warns that serious penalties can be imposed for disruptive attorney conduct and flags, e.g., repeated hearsay objections as disruptive. In August, Doofer made four hearsay objections after being scolded twice. The hearing was continued, and Doofer's client was advised to find new counsel. Ultimately Doofer was suspended for 30 only days. A court now reviewing Doofer's treatment:
A. must dismiss for mootness.
B. will accord Chevron deference to Agency's pamphlet.
C. is likely to find that Agency's standards offend 5 U.S.C. § 500.
D. is unlikely to find that Agency's standards offend 5 U.S.C. § 500.
17. Parents against Gum (PUG) petitioned for rules require chewing gum to be labeled "Not for use by children under the age of X" (X to be determined based on choking risk). Based solely on lack of jurisdiction, Agency refused; PUG sought review.
A. Courts uniformly find such decisions to be unreviewable.
B. Courts uniformly deny standing to gr oups like PUG.
C. If a court disagrees with Agency's statutory interpretation, it should remand.
D. If a court disagrees with Agency's statutory interpretation, it should require rule making.
18. To settle PUG's case (Q17), Agency instituted § 553 rule making. The eventual rule requires chewing gum to be labeled "Not for use by children under the age of six" as of Jan. 1, 2001. Expecting a lower age, ChewZ did not participate, but it seeks immediate APA review. ChewZ's most serious problem is:
A. lack of ripeness.
B. lack of standing.
C. mootness.
D. none of those because review is presumptive.
19. Assume that ChewZ dropped its (Q18) challenge to ask for reconsideration in light of a new study. Shortly thereafter, Agency announced that action would not be taken against those firms warning against use by children three or older. PUG (Q17) seeks review. Its best argument is that:
A. Agencies must use the same process to change as to repeal rules.
B. Ex parte communications are forbidden in rule making.
C. Agencies lack prosecutorial discretion.
D. All of those arguments are equally sound.
20. Those who prevail against agencies may recover attorney fees under:
A. the Agency Practice Act
B. the Equal Access to Justice Act
C. the APA
D. none of those as explained in Goyan.
21. By statute, Agency rules may require skyhook labels to convey safety-related information. While the statute flags composition as safety related, Agency agreed with the Skyhook Ass'n (SA) that composition labels do not advance safety. That is about all they agreed on. Thus, SA seeks review.
A. Satisfying the process minima for procedural rules should be adequate to uphold the rule.
B. Agency support in its brief should be adequate to uphold its rule.
C. The rule is very unlikely to be upheld in its entirety. -- See Tire Dealers.
D. As a trade association, SA lacks standing. -- Several people chose this; I can't imagine why.
22. Firms must obtain Agency approval before changing certified widget designs. After a consolidated hearing, Agency refused to allow Zibler to substitute material X for material Y in any of its six widget certificates. If, e.g., APA § 556 governs such hearings, Zibler is most apt to prevail:
A. on the ground that Agency failed to satisfy its burden of proof.
B. if Agency resolved any issue by documentary evidence alone.
C. if the statute says nothing about consolidating such cases.
D. if Agency's decision is unsupported by substantial evidence.
23. Agency accuses Goober of illegal conduct. In advance of a scheduled formal intramural hearing, Goober seeks the list of witnesses that Agency plans to call -- as well as any pretrial statements they may have made. Goober is almost certain to get the statements:
A. after the witnesses testify.
B. under the Federal Rules of Civil Procedure.
C. under FOIA.
D. None of those; Goober seems to want privileged information.
24. Under its statutory authority to protect "whistle blowers," Agency may, e.g., order reinstatement of employees discharged for reporting unsafe practices. Freud, an employee at will, claims that he was discharged for only those reasons. However, after investigation, a memorandum opinion of Agency Solicitor recommended against taking action to seek Freud's reinstatement.
A. If the agency refuses to prosecute, reversal is likely under APA § 706(2)(A).
B. Freud is entitled to nothing; even the memorandum opinion is privileged.
C. Freud should be able to get a copy of the memorandum opinion.
D. Barring other satisfaction, Freud can probably enforce his statutory rights in a civil action.

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Part II

[20 Points]
Answer any 20 of 24. If you answer more, I can credit only the first 20.
[U] 1. Capricious and arbitrary           [F] 13. Rule-making deadline
[E] 2. Substantial evidence               [C] 14. Private bill
[L] 3. Clearly erroneous                  [N] 15. Interpretative rule making
[K] 4. De novo                            [Q] 16. Residuum rule
[I] 5. Finality                           [A] 17. Independent agency
[B] 6. Ripeness                           [S] 18. Dependent agency
[O] 7. Exhaustion                         [X] 19. Intramural review
[P] 8. Party                              [D] 20. Non-statutory
[R] 9. Interested person                  [M] 21. Statutory
[H] 10. Legislative veto                  [V] 22. Hearing
[T] 11. Savings clause                    [G] 23. ALJ
[W] 12. Severability clause               [J] 24. Ex parte contacts
A. Suggests that top officials can be removed only for cause.
B. Constitutional basis for delayed review.
C. Legislation that may confer benefits on named parties.
D. Indicates that the APA controls.
E. Default standard of review for formal proceedings.
F. A statutory provision especially unlikely to be strictly honored.
G. Intramural player who enjoys considerable independence.
H. Statutory provision apt to be invalid.
I. Explicitly required for APA review.
J. May be governed by APA § 557(d).
K. Uncommon standard of review.
[This one should have said "Uncommon standard for court review of facts."]
L. Standard of review not specified in the APA.
M. Indicates that organic or enabling legislation controls.
N. Exempt from some APA § 553 requirements.
O. Doctrine (of recently-diminished value) that sometimes delays review.
P. Adjudication participant.
Q. Requires some competent evidence to support an order.
R. Rulemaking participant.
S. Suggests that top officials serve at will.
T. May prevent preemption of common law actions.
U. Default standard of review for informal action.
V. If required, sometimes satisfied by consideration of documents.
W. May prevent unconstitutional provisions from invalidating entire statutes.
X. May be governed by § 557(b).
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