Administrative Process final examination spring 1998
Instructions
This is a three-hour, open-book exam. You may consult any written materials, but do not discuss your exam with others.
All questions contemplate federal court review of federal agencies unless otherwise indicated. Answer all questions on the answer sheet. There are two parts; note differences in the amount of credit awarded for each.
Part I
[80 points]
Answer any 20 of 24.
[Part II contains a key, but Part I only cites relevant authority in brackets after each question.]
Please select the clause that most accurately concludes the last sentence of each question and enter the corresponding letter in the space provided on the answer sheet. [Hint: Questions generally follow the order of the syllabus.]
1. Office can confer important private rights on grantee-applicants. By statute, substantive Office determinations are reviewed only in the D.C. Circuit. However, grantees enforce such rights only in other regional circuits. These circuits and the Supreme Court complain that Agency is much too liberal in conferring rights. This suggests that:
A. Prospective grantees are disfavored in direct review.
B. The agency itself seems solely at fault.
C. Grantees are favored in collateral review.
D. The Supreme Court should encourage Agency to seek certiorari.
[See Martin Shapiro's discussion. These facts suggest that prospective grantees are favored in direct review and that grantees are disfavored in collateral review.]
2. Administration's decision adverse to petitioner is easily supportable, but its explanation leaves much to be desired. A reviewing court should:
A. affirm if an acceptable explanation appears in Agency's brief.
B. remand for an acceptable explanation.
C. if necessary, supply an acceptable explanation.
D. remand for formal rule making.
[A take-off on Chenery I.]
3. Board can enjoin unfair practices after formal adjudication. Its statute also seems to confer substantive rule making authority. Agency has decided to address a particular practice (not heretofore treated) in the context of adjudication.
A. Most courts would prefer that its new rule be made that way.
B. Many courts would require Agency to use formal rulemaking.
C. Most courts would prefer notice and comment rulemaking.
D. Its new rule cannot apply retroactively.
[A take-off on Chenery II; see also National Petroleum Refiners.]
4. A statute calls for a "hearing". Agency permits witnesses to testify, but they cannot be cross-examined. After such a hearing, one of three panelists retired and was replaced. If challenged in court, a decision based on this process is most likely to be disapproved:
A. if the procedure is properly regarded as adjudication.
B. because the third panelist did not "hear" anything.
C. if the procedure is properly regarded as rule making.
D. if the decision turns on witness credibility.
[See Vermont Yankee and Chemical Waste Management.]
5. Commission reversed (4 to 1) an ALJ's decision in favor of Applicant. Not only had Ohm, the dissenter, pre-announced his position, but he also had an important role in a Congressional investigation of Applicant. Commission's decision should be:
A. upheld in light of a fundamental proposition underlying APA review.
B. reversed because of Ohm's investigatory involvement.
C. upheld based on the rule of necessity.
D. reversed because Ohm prejudged the case.
[A take-off on ANA and related cases. However, it is difficult to see any prejudice; the person with prior involvement decided in favor of Applicant! (Failing to note that made this the ONLY question where more people chose the wrong than the correct answer!)]
6. Service's employee manual is a "bible" for most practitioners. A key procedure appears there but not in the agency's rules or its statute. A practitioner:
A. can insist that any rule be published in the Federal Register before she is bound by it.
B. can ignore everything in the manual adopted without § 553 rule making.
C. is entitled to follow that procedure.
D. can insist that any rule be published in the C.F.R. before she is bound by it.
[See Fressola and Kaghan.]
7. Agency can bring actions at the behest of petitioners. Swatter asked Agency to initiate an action against Bug, Inc. After investigation, Agency declined. A memo indicates that Agency misread its statute. At Swatter's behest, a court is apt to:
A. review only to determine whether Agency has authority to so interpret the statute.
B. require Agency to bring the action.
C. find that Swatter has an implied private cause of action against Bug, Inc.
D. dismiss for lack of finality.
[See Heckler and American Horse. Re C, see Chrysler v. Brown.]
8. Board has very general authority to regulate activities that pose environmental risks. A rule construes that authority to effectively ban activities that pose any risk of cancer. Petitioner claimed that Board's rule would destroy an important part of its business. Board neither contested that nor addressed likely social benefits. Board's rule is apt to be:
A. upheld because courts do not second guess agencies' technical decisions.
B. remanded for formal hearings on certain key technical issues.
C. remanded for an explanation of expected benefits.
D. struck down because its statute grants impermissibly broad discretion to Board.
[A take-off on Industrial Union; the last option was explictly rejected there.]
9. Commission's statute calls for specified information to appear on certain beverages and permits it, by rule, to require further disclosure to "advance the public interest." Commission adopted a rule replacing some information mentioned in the statute with alternative disclosure. Petitioner prefers the statutory approach and complains that the alternative is not feasible. The final Federal Register notice essentially ignores Petitioner's protest. A reviewing court will probably:
A. require Commissioner to testify concerning the matter.
B. chide Commissioner for exceeding her authority.
C. accept explanations offered in the brief of Commission's counsel.
D. approve the rule as promulgated.
[A take-off on Tire Dealers. Re C, see also Overton Park.]
10. By statute, Congress directed Service to promulgate certain rules within three months. It did not do so. After missing the deadline, Service's chief official received a court order to speed things up. She was also berated in a Senate hearing for her delay. Petitioner now challenges the issued rules. A court:
A. is apt to invalidate the rules because of political interference.
B. is apt to invalidate the rules because of ex parte contacts.
C. will surely invalidate the rules for not being promulgated sooner.
D. lacking reasons better than those presented, is unlikely to invalidate the rules.
[A (very close) take-off on Sierra Club v. Costle.]
11. Secretary can ban, by formal rule making, products that pose risks to human health. After such rule making, it banned a product that posing no more risk than eating one peanut every 250 days. Petitioner makes such a product and challenges the rule before it can become effective. A court will likely:
A. refuse to review for lack of ripeness.
B. review underlying facts in accordance with the substantial evidence standard.
C. review for abuse of discretion.
D. refuse to review for lack of exhaustion of administrative remedies.
[This is related to Abbott Labs, but see 706(2)(E).]
12. A statute requires child-proof locks on automobiles. Administrator, delegated such power, has interpreted "automobiles" to include certain utility vehicles. She used informal rulemaking. On review, a court is apt to uphold the rule:
A. unless the statute clearly excludes this interpretation.
B. if Administrator's rulemaking procedure calls for a "hearing on the record".
C. unless it doubts that the rule represents sound policy.
D. only if the lack of child proof locks on automobiles has been shown to pose serious risks.
[A take off on Chevron.]
13. Two days before the (Q. 12) rule was to go into effect, Administrator decided to repeal it. She announced that decision in the Federal Register. On review, a court will:
A. reverse her decision unless the statute also permits this interpretation.
B. reverse her decision if it doubts that this new approach represents sound policy.
C. uphold her decision for reasons similar to those underlying prosecutorial discretion.
D. reverse her decision for failure to follow proper rulemaking process.
[A take-off on State Farm.]
14. To avoid a health risk, Agency, after informal rule making, required a broad class of products to be processed in a certain way. The rule is not subject to statutory review, and no one sought non-statutory review. Agency now asks a court to order Apex, a manufacturer, to comply. Apex convincingly urges, as it did in rule making, that the rule essentially bans its particular product while offering absolutely no benefit to consumers. Agency responds by calling attention to a study that was available but not made of record during rule making. A court is likely to:
A. refuse to consider Apex's defenses for failure to exhaust its administrative remedies.
B. regard Apex's challenge as untimely.
C. find the rule unenforceable because of Agency's failure to address Apex's objections.
D. consider whether the study rebuts Apex's claim that the rule offers no benefits.
[This relates to Abbott Labs and Nova Scotia, as well as Tire Dealers.]
15. After formal adjudication, Commission ordered Berg to cease certain practices. Later, a circuit court ordered compliance. Several years later, Commission finds that Berg has made little progress and seeks nearly $1M in civil sanctions. The statute is silent regarding jury trials, but there is some support for a Constitutional requirement. If the court's instinct is that Berg should get a jury trial, it is apt to:
A. order Commission to supplement its adjudicatory proceedings accordingly.
B. find that a jury trial is mandated under the 5th amendment.
C. find that Congress contemplated use of a jury trial in such circumstances.
D. find that a jury trial is mandated under the 6th amendment.
[A take-off on J.B. Williams, but two (if not three) choices should be immediately rejected.]
16. Representative Bilgewater wants to have the approval of internet domain name registrations directly administered by the government. He would assign the task to a proposed Congressional Domain Name Registry, headed by a Register. This scheme is likely to be:
A. constitutional if the Register serves at the pleasure of Congress.
B. unconstitutional because conferring such rights is clearly an executive function.
C. constitutional if the Registry has any rulemaking powers.
D. constitutional if the Registry is staffed by conventional executive appointment.
[A take-off on Eltra and related material.]
17. Prior to being appointed, Commissioner was staff counsel to a Senate subcommittee that, after investigation, concluded that Clipper Corp. sells wobbly gyroscopes. Because of Commissioner's prior involvement, Clipper asks a court to stop a formal agency proceeding that could affect the right to sell its gyroscopes. The court should:
A. refuse for failure to exhaust administrative remedies.
B. refuse for lack of final action.
C. grant the motion to save Clipper unwarranted legal expense.
D. grant the motion for abuse of prosecutorial discretion.
[A take-off on SOCAL.]
18. Agency must grant certain benefits upon a showing that applicants have met statutory requirements. Anyone whose rights might be affected may oppose such a grant. Opposer asked to cross examine an expert who submitted an affidavit supporting Applicant. This was not permitted. However, Applicant can assert any rights it has by virtue of its grant only in civil litigation. If opposer challenges the lack of cross-examination, a court should hold that:
A. the challenged affidavit was hearsay and should not have been considered.
B. Agency's process flagrantly violates the 5th Amendment.
C. Agency's process must be brought into line with APA § 554 requirements.
D. Opposer will get any process due well before any of its rights will be affected.
[A take-off on Fregeau; see also Patlex and Hitachi.]
19. Jones sued Smith for copyright infringement. The suit was dismissed until such time as Jones obtained registration. Jones then applied, and Smith sent a letter of protest urging the Office to find the work uncopyrightable. The statute is silent about 3d party participation, and the Office refused to consider Smith's letter. He seeks review; his standing to protest is apt to be:
A. determined by the effect of Jones' registration on Smith's rights.
B. foreclosed because Congress did not provide for such participation.
C. a matter within the discretion of the Office.
D. found unless such participation would clearly interfere with the registration scheme Congress contemplated.
[A take-off on Hitachi; see also Vermont Yankee and Chevron.]
20. After a formal adjudication and an intramural appeal, Board suspended Boozer's license for 90 days. If a reviewing court believes this to be harsh in view of sanctions imposed on other firms under similar circumstances, it should:
A. remand for more fact finding.
B. nevertheless affirm.
C. reduce the suspension to a period more in line with Board precedents.
D. remand for a better justification for the length of suspension.
[See, e.g., Gerritson; also Chenery I.]
21. Office can confer important private rights on grantee-applicants. Bystatute, some Office determinations are reviewed only in the D.C. Circuit (CADC). However, other agency action is not statutorily reviewable. This means that issues arguably unreviewable under the statute:
A. are exempt from any review.
B. could be transferred back by the CADC after transferred there by another court.
C. reviewable in the CADC when intertwined with matters subject to statutory review.
D. would be presumptively reviewable in any Circuit Court with venue.
[See Christianson and related cases.]
22. After an informal adjudication and an intramural appeal, Agency suspended Boozer's license for 90 days. Boozer challenges the Agency's findings of an infraction warranting any suspension of its license. A court should review Agency's findings:
A. under § 706(2)(A).
B under the clearly erroneous standard.
C. under § 706(2)(D).
D. under § 706(2)(E).
[See, e.g., Atari.]
23. Commission has refused to apply the rule it adopted in Beta, an unpublished opinion very helpful to Client. On review, a court should:
A. remand for an explanation of why the rule should not apply.
B. uphold Commission in refusing to consider its unpublished opinions.
C. find Beta irrelevant if Commission is entitled to Chevron deference.
D. permit Commission to change its mind.
[See, e.g., Access... to Unpublished Decisions....]
24. Wowser faces a formal hearing. Administration rules provide for limited pre-trial discovery and afford access to very few pre-complaint witnesses statements. These rules are:
A clearly at odds with sections of the APA that govern formal adjudication.
B. open to 5th amendment challenge by Wowser at this time.
C. apt to give Wowser less than FOIA would.
D. apt to give Wowser more than FOIA would.
[See Robbins Tire; also, e.g., SOCAL and Leeds.]
Part II
[20 points]
Answer any 20 of 24.
Please select the statement that most accurately defines numbered terms and enter the corresponding letter in the space provided on the answer sheet. [Related terms are grouped.]
[N] 1. Savings clause [E] 13. Substantial evidence [B] 2. Order [U] 14. Capricious, arbitrary... [H] 3. Private bill [K] 15. De novo review [W] 4. Private cause of action [A] 16. Documentary evidence [I] 5. Law of the case [L] 17. Hearing [M] 6. Formal adjudication [J] 18. Primary jurisdiction [Q] 7. Informal adjudication [G] 19. Prejudicial error [P] 8. Informal rule making [V] 20. Standing [S] 9. Residuum rule [O] 21. Mootness [C] 10. Jencks rule [T] 22. Dependent [R] 11. Interested person [X] 23. Intramural review [F] 12. ALJ [D] 24. Statutory review
A. Specifically addressed in a 1985 amendment to F.R.C.P. Rule 52(a).
B. Not necessarily the product of adjudication.
C. Concerns the time at which pre-trial witness statements are made available.
D. A court's jurisdiction may be governed by the organic or enabling legislation.
E. Standard of review for jury determinations.
F. Key player in formal adjudications.
G. Usually needed for reversal on procedural grounds.
H. Legislation that could confer a benefit.
I. Helpful for avoiding jurisdictional ping pong.
J. Basis for delay in collateral proceedings.
K. Sometimes used to describe proceedings where better evidence can be introduced.
L. Contemplates, e.g., opportunity for written advocacy.
M. The APA does not govern this type of proceeding unless "required by statute."
N. Sometimes avoids preemption of common law actions.
O. Basis for dismissing an action as untimely.
P. Agency action directly governed by § 553.
Q. Agency action most likely to call for analysis under the due process clause.
R. Usually can seek timely review of rule making.
S. Requires some competent evidence to support a decision.
T. Type of agency subject to closer White House supervision.
U. Standard of review for most informal action.
V. If conferred by statute, its absence is unlikely to warrant dismissing a complaint.
W. Influenced by agencies' needs to control development of their law. [More people (7) mismatched this (to 18) than any other statement.]
X. May be governed by § 557(b).
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