Administrative Process final examination 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
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.
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.
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:
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:
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:
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:
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 Now, his license has been revoked for an indisputable third offense.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.
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,
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:
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:
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:
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:
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:
14. Following an ex parte process, Agency penalized Foober for using fraudulently false information to seek gizmo certification. Reviewing the facts, a Court:
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.
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:
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.
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:
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:
20. Those who prevail against agencies may recover attorney fees under:
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.
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:
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:
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.
| Top of page |
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 contactsA. 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).
Top of page
