Final Examination Mr. Froomkin Administrative Law 200(B) 24-HOUR OPEN-BOOK TAKE-HOME
This is a 24-hour take-home open-book examination, with length limits on the answers. Certain special rules about citation apply if you rely on, or make reference to, materials other than the casebook and class notes. Please remember to use your blind grading number on the exam.
"24 hour take-home," defined. You have the 24 hours of your choice to complete the exam, subject to the remainder of this paragraph. The exam will be administered by the Dean of Students Office. You can take the exam at any time during the regular examination period, so long as you pick it up and return it while the Dean of Students Office is open. The office is open during normal business hours, Monday to Friday. It may be possible for you to arrange to pick up and/or return the exam outside of normal business hours (e.g. on a Saturday). If you wish to make such an arrangement, please check in advance with the Dean of Students office to see if someone can arrange to be there at the necessary time(s).
"Open book," defined. This exam is "open world": you may consult any reference source except other human beings. The exam has, however, been carefully designed so that full and excellent answers can be crafted without reference to any source other than the casebook and class notes. Your instructor believes that reference to external sources is unnecessary, and bordering on unwise (if only as a waste of your limited time). The use of sources other than the casebook and class notes will probably require that you apply the special citation rule below. For obvious reasons, you are expected to refrain from discussing the contents of the exam with anyone from the time you pick up the exam until the end of the examination period.
Citation rules. Citations to cases and materials in the book may be in any short form that is understandable, e.g. Overton Park. In citing materials other than cases, clarity is usually achieved by including a page reference as part of the citation.
While you are free to consult other materials, it is neither necessary nor recommended. If you do so, and if you rely on those materials for any material part of your answer, you are required to provide a full citation to the source, just as if you were writing an academic paper (no penalties for improper Blue Book style will be levied). This rule applies whether or not you are quoting from the source. Failure to give proper citations will, if detected, be considered a serious Honor Code violation.
Length Limits. Each question on this exam has a length limit. This is a maximum, not a target. I will not read beyond the length limit. If you type (please type!), the following safe harbor rule will apply: each typed page with 1" margins on all four sides, which is printed in Courier 10cpi, Times Roman 12pt or Helvetica 12pt, with double-spaced text, will be presumed to have 250 words so long as there are no excessive textual footnotes. NOTE that the word limits are not the same for all questions.
Remember to use your blind grading number.
Some exam tips:
Read the questions carefully and think about your answer before beginning to write. Organization will count in your favor; unreadable writing will count against you — if I can't read it, I can't give credit for it. Don't forget to explain why you reject seemingly sensible options as well as why you select them.
The length limits are intended to be generous. Although writing styles vary, a very nice essay can probably be written in about 50% to 75% of the maximum permitted page length. A brilliant essay could be written in even fewer pages....
There are three (3) questions on this exam. You must answer all three questions. Note that the answer to Question 1 may be up to twice as long as the answers to Questions 2 or 3, and that the answer to Question 1 will be 50% of the exam grade, while questions 2 and 3 each count for 25% of the exam grade. Budget your time accordingly.
Good luck, and thanks for a terrific class.
QUESTION ONE: Smoking
PART A: MAXIMUM of 3,000 words (12 typed pages)
Concerned about the dearth of government activity to benefit the citizenry, the Clinton administration has secured the passage of a bill creating a new agency, the Health, Affluence, Life Organization. The agency is empowered to make all rules "which will make the nation as a whole better off" (subject, of course, to the APA). The statute further instructs the agency to conduct cost-benefit analysis before deciding to issue a rule, and allows it to issue rules only when the agency determines that the benefits of the rule outweigh its costs by a factor of 100:1 or more. The statute contains no provisions relating to judicial review other than a reference to the applicability of the APA.
The agency has now issued its first rule, after the appropriate notice and comment:
Rule 1. (1) From July 1, 1993, no one shall consume, sell, or purchase tobacco products in the United States and its possessions except as otherwise set out in this rule.
(a) It shall be an offense punishable by a fine of not more than $50,000 to manufacture, sell, buy, or consume, or to possess with an intention to sell or consume, any tobacco products unless authorized to do so under § 2 of this rule.
(b) For the purpose of this rule, "consume" includes but is not limited to smoking, chewing, or otherwise inhaling.
Section 2 of Rule 1 provides an exceptions procedure for persons who believe they are addicted to tobacco. Such persons may petition the agency for a "tobacco addict license" that will exempt them from Rule 1. Holders of such a license would be allowed to purchase and consume tobacco products and manufacturers would be allowed to sell to them.
Section 2 also states that the agency will accept petitions for a "tobacco addict license" on a case-by-case basis, in the order they are received. The rule states that the agency will grant petitions for a tobacco addict license to persons who show "clear and convincing evidence" that they are "so terminally addicted that they are unable to stop smoking, and that they fully understand the risks."
In the NPRM, and again in the final rule, the agency justified Rule 1 with voluminous studies showing the benefits outweighed the costs by far more than 250:1.
More than 7.6 million petitions were filed in the first week of the applications period, and the agency anticipates that there will be a 140-year waiting period before the tardier applicants' petitions can be heard.
You represent two people who are concerned about these developments.
Ms. Fume, your first client, was clever enough to get her application for a "tobacco addict license" hand-delivered to the agency only seconds after the application period opened on March 1, 1993. Ms. Fume's application consisted of:
(1) a letter requesting the license,
(2) her affidavit that she smoked 3 packs a day and had done so since the age of 15 and was hopelessly addicted,
(3) an affidavit from her doctor stating that she had been trying to get her patient to quit for eight years, with no success,
(4) a similar affidavit, regarding failed attempt to make Ms. Fume quit, from her live-in partner, who is also female.
Ms. Fume has just received what appears to be a form letter denying her application on the grounds that her application failed to demonstrate that she had made "reasonable efforts to quit, e.g. trying a nicotine patch" and hence would not be considered "to have provided clear and convincing evidence of addiction".
Ms. Fume would like to know if she has any avenues for judicial review. In addition to overturning the agency's decision, she would like an injunction allowing her to keep smoking after July 1, 1993, while the matter is being decided. In a meeting with you Ms. Fume, who is a lawyer, also raised two other points:
(A) Because it is so new, the agency has not published any procedures for applications, other than § 2 of Rule one, which just states where and when applications should be made and that a "clear and convincing" standard will be applied.
(B) Although she has no evidence on the subject, she wonders if the agency may have discriminated against her because she is gay.
Mr. Choke, your second client, sent in his application by first class mail. He hasn't heard anything back yet. He's getting worried.
Write a memorandum of not more than 3,000 words (12 typed pages) — and preferably fewer — setting out the legal theories and approaches by which you could use the court system to advance the interests of either and/or both of your clients.
Your answer should demonstrate a knowledge of the issues we have discussed in this course. Concentrate on any approaches that you think will work, but also give a short summary of why you have rejected any approaches that the partner in charge of this case might be expecting you to try but that you have concluded would be unsuccessful. The partner in charge of this project has concluded that no court could be persuaded to overturn the agency's factual findings as to whether smoking is dangerous, so for the purposes of this question, you should ignore that issue.
If you believe that all challenges are fundamentally hopeless on these facts, then you have the unenviable task of explaining to the partner in charge of the case in detail why none of the traditional avenues challenges to a regulation are appropriate here.
QUESTION TWO: c4hyper-noxide.
You represent the Environmental Coalition, a group of politically correct scientists and lobbyists. The Chairperson of the Coalition consults you about the following situation:
International Toxics, Inc. has invented a new catalyst, c4hyper-noxide, which it is vigorously marketing around the world. In 1990 OSHA issued a notice of proposed rulemaking (NPRM) stating that it was concerned about the long-run health effects of exposure to c4hyper-noxide. OSHA proposed maximum annual exposure limits based on an ambient air quality standard of 6 PPM for all workplaces using c4hyper-noxide. It invited comments on whether such a limit was necessary, on how the limit should be calculated, and at what level it should be set. In the NPRM OSHA discussed two studies that it said it had considered in determining the standard.
Many parties filed comments to the revised NPRM, including International Toxics, General Products, and the Environmental Coalition.
International Toxics submitted a comment stating that in its view gopher studies were irrelevant to human health issues because the biochemistry of the gopher was insufficiently understood. In addition, it stated that the Miami study "proves" that a 40 PPM standard would "be fully adequate to protect human health."
General Products is a manufacturer that uses c4hyper-noxide in its production of faux leatherette office furniture. It argued that rather than impose an ambient air quality standard at all, OSHA should simply require workers to wear filters or oxygen masks. General Products submitted a study that it had prepared, which showed that conversion of the plants in the U.S. that use c4hyper-noxide to comply with the 6 PPM standard would impose a one-time cost of $1.2 billion plus extra running costs of $60 million per year, while face masks would require a one-time purchase of under $120 million per year plus running costs of $10 million per year.
The Environmental Coalition's comment argued that the uncertainty regarding the gopher study should be dealt with by tightening not weakening the standard so as to "err on the side of protecting human health". It also argued that c4hyper-noxide should be banned outright. In support of this argument it pointed to a study published in Science (a widely-respected scientific journal) that compared the catalytic powers of c4hyper-noxide with common table salt and found that the salt was 82% as efficient as c4hyper-noxide. Regarding the "Miami" study, the Environmental Coalition commented that a 2-year study period was insufficiently long to be meaningful, as many workers would be exposed for far longer periods, and cancers also take much longer than two years to manifest themselves.
Last week OSHA published its Final Rule in the Federal Register, setting a 30 PPM standard. It explained the change from the 6 PPM level to 30 PPM as prompted by "a re-evaluation of the reliability of gopher studies, combined with concern over the economic effects of the costs of compliance with a 6 PPM standard."
In response to the comment by International Toxics, OSHA stated that it believed that International Toxic's concerns would be met by the revision to 30 PPM.
In response to General Products' comment, OSHA stated that it had a policy of avoiding rules requiring breathing apparatus whenever possible, because its experience had shown that workers did not comply with the rules. It further stated that General Products' concerns about cost would be met by the revision to 30 PPM.
In response to the Environmental Coalition, OSHA stated that it lacked the statutory authority to impose standards in excess of what was required to protect human health. [Note: for the purposes of this question, all the relevant legislation will be found in the Benzene case, starting on p. 324 of your casebook. You should assume that the legislation has not been amended subsequent to that decision.] It also responded that it did not have the statutory authority to ban a substance simply because a safer but admittedly less efficient alternative existed.
* * *
In addition to the above information from the official record, your client informs you that they have received private, but highly reliable information (from a source whose name they have promised not to divulge) that until Dec. 20, 1992, OSHA was planning to announce the 6 PPM standard as a final rule. On Dec. 20, however, Vice-President Quayle met with the Administrator of OSHA. During that meeting Mr. Quayle expressed the view that "anyone who relied on a gopher for scientific information ought to have its head examined". The next day, the Administrator overruled her staff's recommendation and selected the 30 PPM standard. The Environmental Coalition has also learned that, unknown to OSHA or anyone else, the "Miami" Study was secretly funded by International Toxics.
Advise the Coalition as to its options. How, if at all, can a court challenge be brought against the introduction of c4hyper-noxide into the workplace? Keep your advice to within 1,500 words (6 typed pages).
Question Three: Retroactivity
"If it is unfair, or unjustified, to apply a new policy retroactively, the courts should hold that application arbitrary, capricious, an abuse of discretion whether the policy is promulgated in a rulemaking or an adjudicatory proceeding; otherwise they should uphold it."
- Breyer & Stewart
Make the best case either FOR or AGAINST this proposition. Keep your reply to within 1,500 words (6 typed pages).