Admin Law Sample Exam 1 - No answers provided OLGA L.

MOYA, PROFESSOR 1992 FALL SEMESTER DECEMBER 11, 1992 ADMINISTRATIVE LAW I. (25% of Grade) a) The Town of Leander, in the State of Bliss, has been subject to persistent droughts which occur every few years and frequently require emergency allocations of water among competing uses. The Board of Councilpersons of Leander, in order to avoid the difficulties caused by making allocations when the crisis is upon them, wishes to enact a regulation that will designate in advance "inferior" uses for the water which will automatically be triggered when the water level at the town reservoir drops to a given level. These regulations could be ready for discussion by the board in January when there is no water shortage and none is in the offing. Advise the Board of Councilpersons how to proceed at their upcoming January meeting. What measures are required for legal acceptability and what would you advise for political or like reasons? Make realistic assumptions about Board priorities and resources. b) Assume the Board holds no hearings on its regulation and decides, based on what other communities have done in similar situations and what is "fair in the circumstances," upon the following priorities: When the reservoir falls 2 feet below its normal level for the season all use of water for swimming pools is forbidden; When it drops to 3 feet, all use of water for washing cars is forbidden; And at a drop of 4 feet, all watering of lawns and gardens is forbidden. These regulations become ordinances of the Town of Leander and violations of them can result in fines of up to $5000. The Board is specifically delegated the authority by the State of Bliss to make rules and regulations for the welfare of the Town of Leander. The State of Bliss Administrative Procedure Act is in all relevant ways identical to the federal APA. Winter in Leander blends into Spring and, as the fates would have it, Spring fails to bring rain. By May the water level at the reservoir is 1 foot 11 inches below Its normal level for that period and no rain is forecast. At this point you, a single practitioner and an expert in administrative law, as well as in family law, criminal law, commercial law, real estate law .... well all law since you're only one of a handful of lawyers in this town, are visited by Fred and Barney, the owners of Flintstone Car Wash, the town's only full service car wash. Fred and Barney tell you that they will be driven out of business as soon as the water reaches the second level prescribed in the Board's regulation. "What really gripes me", Fred complains, "Is that the regulation was passed without any input from those, like us, who will be severely affected by its application."

"Don't we have a right to appear at some kind of hearing before regulations like these are imposed?" asks Barney. Since you have an olympic size swimming pool in your backyard you are well aware of the problem the Flintstone brothers raise and you agree to take the case. By the way, it is common knowledge that there are only six swimming pools in Leander, yours, the local hotel's, the town's public pool, and three other residential pools owned by the town doctor, and two other lawyers. As an initial matter you decide to investigate the Flintstone's contentions, which sound reasonable, that some procedural due process rights ought to attach before administrative regulations can be promulgated. What obstacles and opportunities does your research reveal? What plan of action would you advise your clients take? What's the likely outcome of your plan of action? II. (25% of Grade) A. "Legislation by Adjudication" is a phrase commonly used to describe a certain administrative law process. What does it mean? Does the APA apply, if so how? Does the Wine Trade Commission Act utilize this process, if so how? Please be specific and comprehensive in your answer to each question asked. B. As in Judicial adjudications, agency adjudicative decisions finally determine facts and often make law in the process of resolving disputes. What is the force given to administrative agency findings of fact and interpretations of law by federal court Judges upon Judicial review of the different types of agency adjudicative actions? What is the court's role in these review proceedings? C. Explain the legal effect of an administrative law Judge's INITIAL decisions and RECOMMENDED decisions upon other 1) administrative law Judges within the same agency; 2) the agency itself; 3) other agencies; and 4) private individuals, both as parties to the proceedings and as nonparties but part of the regulated community. III. (25% of Grade) You are the General Counsel to the Wine Trade Commission and as such are the agency's chief legal advisor. What procedures and type of hearings would you recommend the agency conduct in order to comply with THE LAW and FUNDAMENTAL POLICIES OF FAIRNESS for each of the following actions referred to in the Wine Trade Commission Act? Cite appropriate authority and discuss the application and policy reasons for each. Keep in mind the participatory rights of parties and interested persons. 1) 6(c) suspension of a wine merchant's license; 2) 8(a) promulgation of rules; 3) 8(b)(6) issuance of an exemption for a labeling rule promulgated under 5.

IV. (25% of Grade) The Occupational Safety and Health Administration (OSHA) is currently considering the adoption of rules imposing new and possibly costly controls on the level of cotton dust in textile factories. The dust causes "brown lung" disease in workers. OSHA Is a constituent part of the Labor Department, and adopts rules using informal rulemaking techniques. After the conclusion of the public comment period, but before adoption of any rule, rumors begin to circulate that the Administrator is going to choose one of the most protectiveand expensiveof the options open to her. 1. What may the Chairman of the appropriate House oversight committee properly do to prevent or delay adoption of requirements that will cripple plants in his district already suffering badly from foreign competition? 2. What steps can the President take to impress on the Administrator the need to avoid contributing to national inflation? "Since she's in the Executive Branch, can't I Just tell her what to do?" he wants to know. "At least if I send her suggestions, can I be sure they'll stay confidential?" Some of the policy matters of which he wishes to advise her are not ready for public disclosure, he explains. (President Clinton thinks to himself, "What if I sent Hillary over to have lunch with Madam OSHA Administrator? Those two have a lot in common.") 3. Consider from the perspective of the Textile Workers Union what steps can be taken to help protect the Administrator against these foreseeable influences, to identify whether such pressures have been applied, or to secure correction or reconsideration of any rule which may have been "distorted" by them. END OF EXAM

Admin Law Sample Exam 2 - No answers provided SOUTH TEXAS COLLEGE OF LAW FINAL EXAMINATION FALL SEMESTER DECEMBER 1, 1994 PROFESSOR OLGA L. MOYA ADMINISTRATIVE LAW I. (NINETY MINUTES, 40 % OF GRADE) Recently the City Council of Kerrtown passed a law banning the use of all plastic bags and take-out containers in all restaurants in town. The law is to take effect 20 days after passage. The City Council believed that by banning some of the non-degradable plastic products filling up landfills, it was being environmentally aware and helping to cut back on the excesses of the "throwaway society." The members were so sure they were on solid political and moral ground here that they did not hold any hearings at which the public could speak to these Issues. Prior to the passage of the new law, one such member of the City Council (Babs) did take it upon herself to have private meetings with the local "Mothers Against Unnecessary Trash" and another (Bubba) telephoned Phil Porter and told him, "Look Phil, because I really like you and think you're a great fellow I will vote against this new law if you promise to give me a 50% discount on my restaurant bill every time my family or I dine at Phil's Porterhouse Deli. You scratch my back, I'll scratch yours." On the night the Kerrtown City Council voted and passed the new law the six Council members discussed the language of the bill and their rationale for passing it. The meeting was open to the public, but no one other than the members of the City Council spoke. The bill passed unanimously. Phil and Camille Porter were unable to attend because they were out of town on that evening and moreso, did not actually know the Council would be meeting and voting on the new law that night. Phil and Camille Porter own Phil's Porterhouse Deli, one of three restaurants in town that uses plastic plates, cups and containers. They are outraged that they never had the chance to speak directly to the entire council about their concerns with this legislation. They feel that they should be entitled to a one-on-one hearing with full participatory rights. They feel that Council member Bubba has singled out the three affected businesses and advocated for this new law because none of the businesses agreed to give Bubba special discount favors. They also argue that replacing the plastic cups will not only mean higher costs for them but, they maintain, for society as well. Plastic, they contend, can be recycled, and heavy cardboard coffee cups and plates cannot. it is not at all clear that landfills can accommodate paper and cardboard waste as easily as they can the thinner and reusable plastic products. There are no recycling facilities for either cardboard or plastic products in Kerrtown. The closest such facilities are 400 miles away and are not yet supplying Kerrtown with such recycling pickup. You are a general practitioner in Kerrtown and have served as a member of the City Council in years past. Thus, you know that the Council does not have an administrative procedure act that directly applies to them, but that for "fairness"

purposes they generally look to the Federal APA and the 1981 MSAPA for guidance. The Porters have hired you to represent them. What does your legal research unveil? What is your advice to the Porters? II. (SIXTY MINUTES, 35 % OF GRADE) In your studies of administrative law cases you have seen many instances of a legislative body which is too divided or uncertain on how to articulate policy, passing an organic statute with some vague language about protecting the "public interest" which tells the agency, in effect, to get the job done. Justice Brennan has argued, "[F]ormulation of policy is a legislature's primary responsibility entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people." Concerns such as those articulated by Justice Brennan have caused some legal scholars to rethink the virtues of the non-delegation doctrine, and to advocate a new and more modest requirement that delegated authority be accompanied by "standards and guidelines." What are the advantages and disadvantages of broad legislative delegations vs. Legislative delegations accompanied by standards from each of the following viewpoints: 1) the regulated community, 2) the agency and; 3) the courts upon review of agency action. III. (THIRTY MINUTES, 25 % OF GRADE) Applying the administrative law doctrine of claim preclusion please answer and explain your reasoning to the following short hypothetical. 1) Suppose a welfare recipient is civilly or administratively prosecuted for welfare fraud and the recipient wins. Can the state relitigate the issue in a subsequent criminal case? 2) Suppose the recipient loses at the civil proceeding. Can he relitigate the issue in a subsequent criminal case? 3) Now, suppose the state had first brought criminal charges and successfully prosecuted the welfare recipient for welfare fraud. Subsequently the state sues him to recover the illegal payments received. Can the recipient relitigate the issue of whether he was entitled to the payments? END OF EXAM