Administrative Process final examination fall 1997
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 at the back of the exam. There are two parts; note differences in the amount of credit awarded for each.
[80 points]
Answer any 20 of 26.
[This is not a key, but the most relevant authority is cited in brackets after each question]
Please select the best lettered item and enter its letter in the space provided on the answer sheet. [Hint: Questions sometimes appear in syllabus order, but all topics overlap others to some extent. ]1. Agency banned importation of certain goods. The President, under statutory authority, later vetoed that order. The President's action is:
A. likely to be reviewed intensely because it reversed Agency's order.
B. immune from judicial scrutiny unless the statute provides for such review.
C. unlikely to be more than superficial reviewed.
D. immune from judicial scrutiny unless the statute permits court review of Agency orders.
[Duracell turns on language specific to the ITC. However, Overton Park suggests that executive action is presumptively reviewable, putting Duracell in the same league as Johnson. Yet, because "Agency" could be interpreted to mean ITC specifically, both B and C were credited.]
2. Assume that Congress has amended the Lanham Act to add grounds for cancelling heretofore incontestable registrations. After cancellation of Client's incontestable registration on newly added grounds, a court would likely:
A. reverse merely because the statute has a retroactive effect.
B. reverse to the extent that any applied PTO rule was retroactive.
C. reverse because the cancelled mark can no longer be used by Client.
D. affirm if Client has no better arguments than this.
[Patlex points out that retroactive statures are constitutional if "fair -- also that retroactive rules are allowed with specific statutory authority.]
3. A three-person BPAI panel reversed an Examiner but reheard per a Commissioner's request. Afterward, the original panel reversed itself. Applicant asks the CAFC to reverse again -- on the merits and because rehearing was improperly granted (see question 4). The court is likely to:
A. refuse the appeal because it has no jurisdiction over the procedural issue.
B. consider both the merits and any procedural issues.
C. reverse unless the final decision is supported by substantial evidence.
D. reinstate the original decision because of the Commissioner's "meddling".
[It seems clear from both Alappat and Bose that the CAFC has jurisdiction over procedural issues if they arise in the context of appeals otherwise properly before it.]
4. 35 U.S.C. § 7 says: "Only the [BPAI] has the authority to grant rehearings. " If a court finds that language ambiguous (see question 3), it should:
A. defer to the PTO's view that fewer than all 40-some members can grant rehearings.
B. compel rule making before three-person panels can alone grant rehearings.
C. decide based on whether the PTO has substantive rule-making authority.
D. interpret § 7 based what the court regards as sound policy.
[Alappat, in fact, deferred to the PTO's view, notwithstanding a dissent to the contrary.]
5. Agency's longstanding procedure is referred to only in its manual for employees. A party who could easily comply refuses and seeks APA review. A reviewing court should:
A. uphold Agency unless its "rule" was never published in the Federal Register.
B. refuse to uphold Agency because its "rule" does not appear in the C.F.R.
C. refuse to uphold Agency until its "rule" is promulgated under APA § 553.
D. uphold Agency unless harm can be shown from lack of advance notice.
[This seems to be particularly easy in light of Fressola.]
6. Assume that in Oregon, "offensive" trademarks can be refused registration by Agency. You have shown wide variation in interpretation and maintain, following rejection, that marks far more offensive than Client's have been registered. On review, a state court is apt to find that:
A. review is impossible without Agency's articulating more precise standards.
B. Agency has been delegated excessive power.
C. rejection deprives Client of any rights in its mark.
D. rejection unduly interferes with Client's commercial speech.
[This is nothing more than a take-off on Sun Ray, but a couple of red herrings come out of McGinley.]
7. Agency was directed to promulgate certain rules within 180 days. It did not comply. Also, Agency personnel have had private meetings at the White House and with powerful members of Congress but made full transcripts available. A court is apt to find affected rules:
A. invalid as untimely.
B. invalid because of ex parte contacts.
C. valid if challengers could comment on all matters of record.
D. valid notwithstanding the aforementioned indicia of Agency bias.
[This poses a bad option that I essentially announced would be on the exam. The rest of it also seems to be disposed of by Sierra Club.]
8. Commissioner Jones wants to fund "public interest" participants in rulemaking. She has asked you for an opinion. You should advise that:
A. no court has ever disapproved such use of agency funds.
B. an examination of her statutory authority is warranted.
C. this is a matter of unreviewable discretion.
D. she can do so if she first gets approval of the Comptroller General.
[This seems to be an easy question fully disposed of by Goyan.]
9. During notice and comment rule making at the frontiers of science and technology, Client submitted data that strongly challenge several Agency assumptions. The rule issued as originally proposed. The data submitted by Client was not mentioned. On review, a court should:
A. uphold Agency on the basis of Agency's technical expertise.
B. determine whether Agency's rule is supported by a preponderance of evidence.
C. refuse to uphold Agency pending response to Client's challenges to its assumptions.
D. remand for sworn testimony, subject to cross examination, on disputed fact issues.
[See National Tire Dealers.]
10. You have discovered a new rule that requires Client to dispose of substantial inventory if Agency determines that its products do not conform. Agency's statute does not provide for review of rules or rule making. A court will probably find that:
A. Client can lodge a facial challenge of the rule at this time.
B. Client cannot challenge the rule at any time if it failed to participate.
C. Client's challenge is not ripe if the rule is so vague that a court cannot determine whether affected products are banned or not.
D. Client cannot challenge because the statute does not explicitly provide for review.
[The situation seems indistinguishable from Abbott Labs.]
11. Agency can ban products only after formal process. New Agency rules presumptively ban certain products. Based on those rules, ALJ Wizer banned one of Client's products without oral hearing. Agency heads affirmed. On review, a court is apt to:
A. reverse because Client must be allowed to present oral testimony.
B. affirm unless Client can show compelling need for oral testimony.
C. reverse if Wizer used the new rules to resolve issues left open in the statute.
D. affirm, but only if the new rules were promulgated by formal rule making.
[This scenario seems most closely tied to Air Line Pilots. See also the last clause of § 706(2).]
12. Following notice and comment, the PTO promulgated a substantive rule that just became final. Anyone wishing to challenge the rule should:
A. seek review directly in the CAFC because panels of that Court have opined that the PTO has no substantive rulemaking authority.
B. clearly establish that Congress itself intended to resolve the issues in question.
C. clearly establish that the PTO was required to use § 553 rule making.
D. forget it unless they have a better approach than any presented above.
[See the article about admission to practice; regarding jurisdiction, see, e.g., Animal Legal.]
13. Agency ordered Client to cease and desist from certain activities. After Client refused, a court ordered compliance. Client still does not, in Agency's view, comply. Based on cases we covered, if Agency wishes that severe sanctions be imposed, it may:
A. impose them itself.
B. promulgate new rules to authorize such sanctions.
C. face Client's Constitutional right to jury trial before such sanctions can be imposed.
D. face a presumption of Client's right to jury trial before such sanctions can be imposed.
[This is a take-off on J.B. Williams -- and our discussion thereof.]
14. FDA has taken no action about certain "health food" products that contain unsupportable therapeutic claims -- notwithstanding being petitioned to use its clear statutory powers.
A. If FDA changes its mind, it may impose fines after formal intramural hearings.
B. Petitioners could probably get a court to order FDA to act.
C. Petitioners would be hard pressed to get a court to order FDA to act.
D. Commercial petitioners would have a cause of action under FDA's statute if they could establish blatant "unfair competition".
[The most relevant authority seems to be Heckler, but we discussed the likelihood of a private cause of action in the context of Chrysler.]
15. Partly because Hoozit was an excellent Agency staff attorney, she was subsequently "promoted" to ALJ. Soon after, following hearing, she ordered Client to cease certain practices. Client did not pursue intramural appeal. Agency now seeks enforcement. A court should:
A. refuse if Agency's prosecuting staff attorney was previously Hoozit's co-worker.
B. refuse because, for want of appeal, Hoozit's order never became an Agency order.
C. refuse if, as staff attorney, Hoozit was involved with Client's case.
D. review under the clearly erroneous standard.
[See American Cyanamid. See also § 557(b), mentioned several times.]
16. Dr. Calvin Clone, while working for Genomes, Inc., discovered a part of DNA arguably responsible for human intelligence. He strongly believes that patenting something like this is morally offensive and refused to cooperate in prosecuting a patent filed in his name. He was fired and now asks a court to order the PTO to allow him to argue personally against issuance of "his" patent. Cases we covered suggest that courts will likely find:
A. Clone's being able to protest in writing affords whatever process may be due.
B. Clone's liberty interests warrant a right to appear in person.
C. Clone's property interests warrant a right to appear in person.
D. Clone need not raise the issue in the PTO before bringing this suit.
[See Cogar; also Digital v. Parker.]
17. Agency's statute specifies that "any person" may comment on the proposed resolution of certain cases. Bill Poorhouse did so, but the Agency did not follow his advice. Whether Poorhouse has standing to seek review is most apt to be resolved by:
A. evidence of his being uniquely affected by Agency's action.
B. the extent to which Agency rules permit court review.
C. what Congress intended regarding such persons.
D. the holding in Toilet Goods.
[This comes from our discussion of Bromberg -- as well as, e.g., Colligan much later in the course.]
18. Most PTO procedures are informal. Yet, decisions may be reviewed in bench trials as well as upon direct appellate review. This most strongly suggests that:
A. bench trials proceed without any assumption that Agency is correct.
B. direct appellate review is intended to compensate for Agency process shortcomings.
C. indirect appellate review must necessarily yield exactly the same results as direct appeals.
D. bench trials are intended to compensate for possible Agency process shortcomings.
[This is most closely tied to our discussion of Fregeau when it was noted that clearly erroneous review of another court's clearly erroneous review would not necessarily yield the same result as direct clearly erroneous review.]
19. On review of a BPAI decision, the CAFC intends to reverse and remand. If the CAFC were to consider earmarking an issue as the only one to be considered on remand,
A. it would find no precedent for so constraining a PTO Board.
B. it would find many decisions so constraining PTO Boards.
C. this would represent a common attitude of courts toward agencies.
D. this would represent an uncommon attitude of courts toward agencies.
[This was discussed most pointedly in the context of Wella -- particularly with regard to the concurrence.]
20. You have protested Examiner Smith's handling an application because you overheard him refer to the inventor as a "nut case. " A petition to substitute Examiners was not viewed favorably. Smith then rejected all claims but one, and the BPAI affirmed. On statutory review, a court:
A. can consider only the merits.
B. might justifiably review more intensely than otherwise.
C. might justifiably review less intensely than otherwise.
D. will refuse jurisdiction if the process issue is also appealed.
[This is most closely related to Bose; the CAFC can consider process issues when it otherwise has a basis for jurisdiction.]
21. Invoking 5 U.S.C. § 552(b)(3) because secrecy must be preserved under 35 U.S.C. § 122, the PTO refused to make certain records available. On review, the N. H. District Court affirmed. On appeal, the 1st Circuit transferred to the CAFC saying, "This case obviously involves patents. "
A. The CAFC has a "plausible" basis for jurisdiction if the District Court's jurisdiction could be seen as based at least in part on 28 U.S.C. § 1338.
B. The CAFC must re-transfer because all such appeals in D. C. have been thus far decided by the CADC.
C. The CAFC has a "plausible" basis for jurisdiction if the District Court's jurisdiction was based solely on 28 U.S.C. § 1331.
D. The 1st Circuit's transfer clearly satisfies the "well-pleaded complaint" rule.
[This is most closely related to Christianson.]
22. The FTC has enjoined Company from advertising that its patented pyramids enhance beverage flavor. On review, a court should find the following most compelling in deciding whether to enforce the FTC order:
A. One agency should not be able to forbid what another agency requires.
B. A court can only accept or reject an FTC order as written.
C. Patent Examiners usually take applicants' recitations of utility at face value.
D. Patent Examiners usually independently verify recitations of utility.
[This is a straight-forward take-off on Decker.]
23. Client submitted safety studies to Agency to secure product marketing approval. Now, it has learned that another company has filed a FOIA request for copies of those studies. In an action opposing their release, Client:
A. should have no difficulty establishing that they contain trade secrets.
B. can prevent release of commercially valuable, confidential data.
C. can prevent release of commercially valuable data.
D. has standing under FOIA itself.
[This is resolved by Public Citizen]
24. Administrators have heretofore allowed more time to file Form Z than C. F. R provisions literally permit. Hardnose, the new Commissioner, in a speech to all Agency personnel, told them to "shape up. " Soon thereafter, attorney Grizga's Form Z was rejected as untimely. A reviewing court is apt to:
A. affirm; Hardnose has every right to insist that "Agency rules be followed. "
B. reverse; the C.F.R. provisions have no statutory basis.
C. affirm; lawyers must be presumed to know the law.
D. reverse; Agency's current interpretations of regulations do not necessarily bind others.
[This can be resolved by either Kaghan or Nielson -- the most basic issue is: "What is the law?" not whether it can be enforced.]
25. In light of the well-established practice of registering works of very doubtful copyrightability, courts generally accord registered works a weak presumption of copyright validity. This implies:
A. that courts should accord refusals to register equally weak presumptions of validity.
B. no inconsistency in reviewing very deferentially refusals to register.
C. that registerability is not a question of fact within the Copyright Office's expertise.
D. that registerability is not a Chevron-type question of law.
[This comes from our discussion of Oddzon.]
26. Beta recently began using a mark similar to Alpha's and has filed to register it in the PTO. Alpha sent a letter of protest to the PTO and further seeks, in District Court, a preliminary injunction against Beta's use of the mark. As discussed in class:
A. the court need not delay in considering the preliminary injunction.
B. Alpha's common law action is preempted.
C. the court must require Alpha to exhaust its administrative remedies.
D. the court must await the outcome of formal hearings in the PTO.
[This comes from our discussion of Wembley, Citi Traffic and Nader.]
Part II
[20 points]
Answer any 20 of 24.
Please select the statement that best matches each numbered term and enter the corresponding letter in the space provided on the answer sheet. [Again, not a key, but comments added to lettered statements.]
1. Intramural appeals 13. APA § 559
2. Injunctive orders 14. Non-delegation doctrine
3. Abuse of discretion 15. Delegation of authority
4. Substantial evidence 16. Retroactive
5. Clearly erroneous 17. Residuum rule
6. Jencks rule 18. Prejudice
7. Statutory review 19. Cost of litigation
8. Rule making 20. Law of the case
9. Informal adjudication 21. Exhaustion requirement
10. Formal adjudication 22. Standing
11. Procedural rules 23. Legislative veto
12. Private bill 24. Dependent agency
A. Requires substantive standards specific enough for courts to review meaningfully. -- See, e.g., Amalgamated Meat Cutters.
B. Denies presidential participation in law making. -- See Chadha.
C. Addressed by § APA 557(b).
D. in the context of adjudication, called "ad hoc". See contents heading II.A. and, e.g., Chenery.
E. The standard for appellate review of judicial fact finding. -- See F.R.C.Pro. 52(a); also Law and Fact article.
F. Standard often used for appellate review of sanctions. -- See, e.g., Gerritson or Hyundai.
G. Conditioned on provisions in organic or enabling legislation. -- intended to match statutory review; standing also would have been credited.
H. More likely to be modified than other agency sanctions. See Listerine.
I. The standard for appellate review of jury fact finding. -- See , e.g., Law and Fact article.
J. Exempt from important APA § 553 requirements. -- See Fresolla.
K. Sometimes ignored in assessing the magnitude of harm. -- See SOCAL.
L. Generally required before courts defer to agency rules. -- See, e.g., Merck
M. Rebuts a finding by implication that APA requirements do not govern.
N. Governed by APA § 554. -- Essentially a definition.
O. General legislation that is constitutional if "fair". -- See Patlex.
P. Agency action for which the APA does not provide procedural minima. -- See § 554(a).
Q. Usually required before courts will reverse for agency errors. -- Last clause of § 706(2).
R. May be used, e. g. , to extend the life of a patent. -- Private bill were mentioned at least twice in this regard.
S. Coupled with agency rules, may affect the timing of court review. -- See Darby.
T. Executive appointees can be removed without cause.
U. Permits post-trial "discovery". -- Contrast between post- and pre-trial discovery discussed in the context of Robbins Tire.
V. May be helpful in preventing jurisdictional ping-pong. -- See Christianson.
W. Unlikely to be denied if a statute clearly confers it. -- intended to match standing; statutory review was also credited (once).
X. Calls for at least some competent evidence to support an agency decision. -- Discussed during review in context of Perales.
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