These are Spring 1998 quizzes based on an earlier version of Field's administrative process materials. Correct answers are shown [one match], but no quiz presented descriptions in this order. Sores are 10 minus the number missed.On Q.1, for example, someone missing all of them would score a 2.
Quiz 1
[A] 1. Ooms [E] 5. Overton Park
[B] 2. Shapiro [F] 6. BPJ Enterprises
[C] 3. President's Commission [G] 7. Oddzon
[D] 4. In re Arkley [H] 8. J.B. Williams
A. Expressed a desire to keep practitioners well informed and involved.
B. Sometimes apparent disagreements between courts and agencies reflect
disagreements among courts.
C. Recommended that CCPA decisions be reviewed by the CADC.
D. A dissent distinguished patents from "party favors".
E. Says that courts need the "whole record" underlying agency action, not post
hoc rationalizations.
F. An instance of "intramural" review.
G. Deferred to the Copyright Office's finding a toy to be a "useful article".
H. Presumed a right to a jury trial when severe sanctions were sought.
I. Offers insight into why most current PTO rules have historically had to be
promulgated by notice and comment proceedings.
J. The Copyright Office's finding a toy to be a "useful article" was held
capricious and arbitrary.
Quiz 2
[A] 1. Nova Scotia [F] 6. Mariott
[B] 2. Duracell [G] 7. Searles
[C] 3. Lenzing [H] 8. James
[D] 4. Rydeen [I] 9. Bose
[E] 5. Hengehold [J] 10. Alappat
A. Stressed the need to construe public health statutes liberally.
B. It might have been useful to consider when the White House is an "agency"
under the APA.
C. The court lacked jurisdiction to review a patent revocation.
D. Only 28 U.S.C. § 1331 review is available for the PTO's refusal to
accept a late fee.
E. Only non-statutory review is available for whether a patent contains more
than one "invention."
F. 15 U.S.C.§ 1071 permits review of fewer Commissioner's decisions than
it suggests.
G. The court upheld the Commissioner's and Board's finding a matter to be
"appealable."
H. A Board's mere dismissal of an appeal was not reviewable as an "adverse
decision."
I. A claim of procedural error, without evidence of harm, is unlikely to
warrant reversal.
J. Not all members of the BPAI need to decide whether to reconsider a prior
decision.
Quiz 3
[A] 1. Wyden & Franchi [F] 6. Colligan & Bromberg
[B] 2. Christianson [G] 7. Hitachi
[C] 3. Citi Traffic [H] 8. Wembley & SOCAL
[D] 4. Decker & Garden of Eatin' [I] 9. McKart
[E] 5. Brown-Forman & Nader [J] 10. WATCH & Darby
A. Involved statutory review of PTO decisions under 35 U.S.C. 32.
B. Applied the "law of the case" doctrine.
C. Resolved a conflict between provisions for direct and collateral PTO
review.
D. Addressed overlap between the PTO's and another agency's jurisdiction.
E. Turned on the existence of irreconcilable conflicts in duties imposed in
different fora.
F. Turned on the meaning of "any person".
G. Found the APA presumption of review on behalf of a complaining party to be
reversed by a specific statutory scheme.
H. Turned on whether (final) agency action was being reviewed.
I. Held that failure to exhaust administrative consideration might not
foreclose collateral challenges to agency determinations.
J. Discussed circumstances where direct review may be sought without exhausting
administative options.
Quiz 4
[A] 1. Hearst & Morgan [F] 6. ECCS
[B] 2. Atari [G] 7. Zurko
[C] 3. McKelvey & Bodwell [H] 8. Siegel, Gerritson & Hyundai
[D] 4. McCarthy [I] 9. Warner Lambert & Wella
[E] 5. Fregeau
A. Deferred to the agency's decision (and expressed the need for deference).
B. One of the most deferential standards of review was found not to support the
agency's decision.
C. Discussed the frequency of agency reversals.
D. Rejected a very deferential standard in favor of an equally non-deferential
standard of review.
E. Chose a standard of review based on the need for consistency regardless of
forum.
F. Decided a trademark appeal on a basis urged by neither party.
G. Relied on pre-APA cases to justify using a non-APA standard of review.
H. Showed considerable deference to the agency's ability to choose the
remedy.
I. Seemed to dicate disposition of a matter without, e.g., giving the agency an
opportunity to justify its choice.
J. Pointed out that all federal court decisions are both published and
precedential
Quiz 5
[A] 1. Butterworth [F] 6. Pillsbury
[B] 2. Humphrey's Estate [G] 7. Cyanamid
[C] 3. Eltra [H] 8. Skupniewitz
[D] 4. Librarian's testimony [I] 9. Nash
[E] 5. Brooks [J] 10. Patlex
A. One cannot necessarily appeal to the person to whom a decision maker
reports.
B. Turned on the key basis for distinguishing "dependent" and "independent"
agencies.
C. An Act may be constitutional notwithstanding its apparent assignment of
certain executive decisions to the legislative branch.
D. The Librarian of Congress serves at the pleasure of the President.
E. That the Copyright Office might be executive for some purposes does not make
it such for all purposes.
F. An order was set aside for bias, but personnel changes allowed a remand to
the same agency.
G. An order was vacated and remanded for further proceedings to be conducted
without the agency Chair.
H. The decison maker petitioned "itself" for relief from an adverse decision by
a lower tribunal.
I. Discusses the independence of ALJs.
J. Found no basis for an alleged economic bias.
Quiz 6
[A] 1. Kaghan & Nielson [F] 6. Cogar & Parker
[B] 2. McGinley [G] 7. DEC v. Diamond
[C] 3. Mangler [H] 8. Quesada
[D] 4. Perales [I] 9. Chenery
[E] 5. Klein
A. Agencies are obligated to follow procedures that practitioners have come to
rely on.
B. Statutory vagueness affords a basis for a 5th Amendment challenge.
C. Inspired by Carl Drega.
D. Offers some, if not compelling, evidence that the residuum rule does not
apply to federal agencies.
E. The court found a decision subject to a clear and convincing burden of proof
to be supported by substantial evidence.
F. Addressed what kind of hearing, if any, might be required.
G. Criticized an agency for getting into matters outside its main areas of
expertise.
H. Rule making may eliminate the need to address particular issues in
adjudications.
I. Agencies may promulgate new rules in the context of adjudications.
J. The Supreme Court has held that, if an agency's decision is supportable, its
articulated rationale is irrelevant.
Quiz 7
[A] 1. Patlex [F] 6. Fl. E.Coast Ry.
[B] 2. NPR [G] 7. APA § 556
[C] 3. Van Ornum
[D] 4. MPAA
[E] 5. Ritchie
A. Curative legislation enjoys special status in terms of courts' disfavoring
retroactivity.
B. Agencies that can make binding substantive statutory interpretations are
presumed to have authority to use the APA § 553 process.
C. A substantive rule was upheld where it restated a proposition earlier
approved by the court.
D. "Rules" made by the APA § 553 process cannot be retroactive.
E. A rule "discovered" in an adjudication was distinguished and refined in a
later adjudication.
F. If agency action is "rule making," then judges must find something beyond
their own notions of fairness to support requiring process beyond APA §
553 requirements.
G. A common foundation for asserting prejudice.
H. Agency orders may never be prospective.
I. Binding rules that foreseeably affect only a few individuals or firms can be
promulgated only in the context of formal adjudication.
J. Agencies cannot impose obligations retroactively.
Quiz 8
[A] 1. Vermont Yankee [F] 6. Premysler cases
[B] 2. ANA [G] 7. Sun Ray
[C] 3. Fressola [H] 8. § 706
[D] 4. Animal Legal
[E] 5. Jerri's
A. That "rule making" is at the frontiers of science and technology affords no
warrant for judges to require process beyond that set forth in relevant
statutes or agency rules.
B. Even in hybrid "rule making," judges need more than their own notions of
fairness to support process requirements in addition to those specified by
Congress.
C. Procedural rules need not be promulgated by the notice and comment rule
making process.
D. An "rule" that merely synthesizes decisional law does not require § 553
process for adoption.
E. Rule interpretations may, depending on impact, require the agency to use
§ 553 process.
F. Even after a party has taken action based on an agency's interpretation of a
rule, the agency may not be precluded from interpreting the rule
differently.
G. Rules may be needed before, e.g., courts can meaningfully review agency
action.
H. Cautions against reversing agencies merely because they committed a
technical error.
I. Rules that foreseeably affect only one firm cannot be promulgated under
§ 553.
J. Legislation operates only prospectively whereas adjudication operates only
retrospectively.
Quiz 9
[A] 1. Heckler [F] 6. Gage
[B] 2. American Horse [G] 7. Block
[C] 3. Abbott Labs [H] 8. Animal Legal
[D] 4. Toilet Goods
[E] 5. Molins
A. A concurring opinion notes that easy cases sometimes make bad law.
B. Distinguished the reviewability of officials' refusals to prosecute from
their refusals to take other action.
C. One of the earliest cases to state that the APA makes agency action
presumptively reviewable.
D. Found an apparently facially valid final rule not to be ripe for review for
lack of evidence of how the agency might enforce it.
E. Refused to entertain a facial challenge to a long-standing rule, preferring
to review it in a more concrete setting.
F. Refused standing to review to those who had declined an opportunity to
participate in the process of promulgating a rule.
G. Consumers were denied standing to challenge a decision of the Department of
Agriculture -- at least in the absence of exhausting administrative
remedies.
H. Denied appellants standing because they were "in effect attempting to
intervene as third parties" in a potentially large number of informal
adjudications.
I. Ordered the Secretary of Agriculture to promulgate rules.
J. Holds that prisoners have the right to require FDA to enforce its law
against those using drugs inappropriately.
Quiz 10
[A] 1. Athridge (D.Ct.) [F] 6. State Farm
[B] 2. Athridge (Ct.Apps.) [G] 7. Rubinfield
[C] 3. Amalgamated Meat Cutters
[D] 4. Industrial Union
[E] 5. Auto Parts
A. Found it irrational to discriminate between lawyers based on when they
entered government service.
B. Makes it clear that petitioner either had or soon would have all that he
desired.
C. Points out that events in Panama Refining led to creation of the Federal
Register.
D. One Justice said that Congress had abdicated its responsibility to make hard
choices.
E. Petitioner raised neither its procedural nor its merits challenges before
the agency.
F. More is required to justify a rule's repeal than an agency's refusal to
promulgate it.
G. Deferred to a longstanding practice of an agency.
H. Affirmed an agency's workplace ban of benzene.
I. Federal courts often strike down broad delegations of Congressional
authority.
J. Agencies are generally upheld when their attorneys offer "intelligible
principles" in support of protested agency action.
Quiz 11
[A] 1. Chevron [F] 6. Chemical Waste Mgmt.
[B] 2. Morganroth [G] 7. Tire Dealers
[C] 3. Kodak [H] 8. Public Citizen
[D] 4. Merck [I] 9. Sierra Club
[E] 5. Harley
A. The court effectively avoided the hot potato's being thrown to it.
B. Agreed that the PTO had no authority to revive a patent application under
the circumstances.
C. Deferred to a Board interpretation regarding a proper sequence of events.
D. Stressed that the PTO's delegated authority normally covers only matters of procedure.
E. In one important respect, the would-be patentee suffered a self-inflicted
wound.
F. The holding that an agency rule could trump circuit dicta was approved by
the entire circuit.
G. The agency was upheld neither on rules it issued nor rules it chose not to
issue.
H. Illustrates how tightly a famous provision circumscribes agency powers.
I. Rules are unlikely to be disapproved for failure to meet a
Congressionally-mandated deadline.
J. Rules are likely to be disapproved for failure to meet a
Congressionally-mandated deadline.
Quiz 12
[A] 1. Chadha [F] 6. Public Citizen
[B] 2. Goyan [G] 7. Leeds
[C] 3. Sears [H] 8. General Mills
[D] 4. Robbins
[E] 5. Chrysler
A. Stuck down "in one fell swoop" more legislative provisions than in the
court's whole history.
B. Struck down a scheme for helping rulemaking participants based in part on the "American rule" regarding the expenses of litigation.
C. Decisions not to prosecute are final adjudications for FOIA purposes.
D. FOIA may not be useful to get access to witnesses' statements before formal
adjudications.
E. Set forth an important pre-condition to the Chevron rule.
F. Adopts a definition of trade secret narrower than a Restatement's.
G. Shows that interpretations of the patent statute may not always go to
CAFC.
H. A Board held that it would not be bound by its "unpublished" decisions.
I. Corporations have a cause of action under the Trade Secrets Act to prevent
FOIA disclosure of information provided to the federal government.
J. Holds that citizens need good reasons to see them before documents can be
obtained through a FOIA request.
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