FINAL
EXAMINATION
ADMINISTRATIVE
LAW
PROFS.
HELMLINGER AND LIEBEN
SPRING
2006
INSTRUCTIONS
1.
You have a total of three (3) hours to complete this
examination. Though it is not required,
you may allocate 1-½ hours (90 minutes) to each question.
2.
This is a partial open book
exam. No materials are allowed with the
exception of ONE 8-1/2” by 11” PIECE OF PAPER with notes. Again, other than this, no outside materials
are allowed.
3.
The exam consists of two (2) essay questions, each of which is
divided into two or three subparts.
4.
Please answer these questions in the blue books provided to
you. Write only on the right hand side
of the page (skipping a page each time) and double-space your work. Please write legibly.
5.
Write your exam number on your exam envelope. Put your student exam number at the top of
this page, each page of questions, and each blue book. Do
not use your name, student ID number or Social Security number on any
exam materials.
6.
At the conclusion of the exam, return all exam materials to the
exam envelope and submit it to the proctor.
Do not seal the
envelope. Students who do not return all
exam materials at the end of the exam may not be graded.
PART ONE
Due to growing evidence regarding
the carcinogenicity of electromagnetic radiation fields, Congress creates the
Remedial Agency for Dangerous Radiation (“RADR”) tasked with protecting the
The Senate passed X-RAY to protect the public from the newly understood and emerging threat of electromagnetic fields and radiation, which emanate from all appliances, devices and other conveyances present in our work and home environments. Due to the magnitude and immediacy of the threat, it is important that the laws and regulations be enacted quickly with minimal litigation.
Shortly thereafter, pursuant to
Section 553 of the Administrative Procedures Act, RADR proposed in the federal
register certain rules called the Federal Rule for the Inhibition of
Electromagnetic Dangers (“FRIED”). Under
FRIED, RADR proposed an EMF level of 1 milliGauss (mG) as the legal limit for
radiation emanating from certain identified appliances, devices or discrete
objects. In the rule, RADR identified
studies indicating that this was the minimal level considered safe by many
preeminent scientists. RADR also found
that chronic and focused sources of EMF, such as cell phones, are the most
dangerous sources of EMF and that exposure from phones should be severely
reduced if not eliminated entirely. RADR
proposed to require all cell phone service providers to limit their customers’
cell phone usage to 30 minutes a day through the use of cell phones with
automatic shutoffs. RADR proposed such
requirements despite the fact that the U.S. Senate, in the context of other
laws, had made various statements that the unimpeded and free use of cell
phones is vital to the continued growth of the
During the 30-day comment period, the Toaster Oven Association of South Teaneck (“TOAST”) submitted comments that the high industry costs necessary for the R&D and eventual compliance with FRIED’s proposed levels would likely put many manufacturers of appliances and devices out of business. TOAST recommended an EMF level of 3 mG. RADR issued a final rule establishing an EMF regulatory level of 5 mG and finalizing the cell phone limitations as proposed. In the final rule, RADR agreed with TOAST’s comments that the agency should have considered the costs of the new requirements on the regulated community and stated, “In consideration of such costs and other information, RADR believed that it was appropriate to raise the EMF limit to 5 mG.” While staff level employees of RADR relied upon additional studies to finalize the higher standard, the other studies were never identified or provided to the public.
In an unrelated informal agency policy, RADR interpreted the statutory term ‘discrete object’ in Section 5 of X-RAY to also include power lines, which were not previously identified in FRIED for regulation, and established a standard of 4 mG for these sources. The Merriam-Webster Dictionary defines ‘discrete’ as “individually distinct” and ‘object’ as “something that may be seen or felt.”
(Question continues on next
page.)
Singularity Cellular, Inc. (“Singularity”) and International Communications Media (“ICM”) are two cell phone service providers regulated under FRIED. Singularity is in violation of FRIED by not providing cell phones with a 30-minute shutoff to its customers. RADR has failed to enforce against Singularity.
QUESTIONS to Part I:
1. NO Waves (a nonprofit group formed to advocate for more stringent EMF requirements) and ICM both want to directly challenge in federal district court the legality of FRIED. Neither entity submitted comments on the proposed rule. NO Waves claims that the 5 mG standard is not stringent enough. ICM claims that X-RAY did not authorize RADR to regulate cell phones the way it did under FRIED. ICM also wants to challenge RADR’s failure to enforce against Singularity, as it puts ICM at a competitive disadvantage. What are NO Waves and ICM’s best arguments and what are RADR’s best defenses?
2. The Acme Power Company (“APC”), a retail power provider whose power lines would be regulated under RADR’s informal policy, wants to challenge the legality of the policy. What are APC’s best arguments and RADR’s best defenses? (for this question, assume jurisdiction and reviewability and only discuss the merits of any legal claim)
3. NO Waves wants to file a lawsuit against Singularity for the violations of the requirements of FRIED. No member of NO Waves can demonstrate any actual harm from EMF waves, but its members can demonstrate that they routinely use cell phones. Will NO Waves have trouble with standing? Why or why not? How should NO Waves best plead its lawsuit to ensure standing?
PART TWO
The Athletic Achievement Administration (“AAA”) is a federal agency formed in the wake of several recent sports doping scandals that have shaken the public opinion and confidence in professional sports. To demonstrate its commitment to finding a solution, the U.S. legislature quickly passed the Authentic Achievement Act, which provides only that AAA is to be to an independent agency to regulate the use of sports “supplements” “to promote athletic accountability” and “to restore the public confidence,” and that the Administrator of the AAA is appointed by the President with the advice and consent of the U.S. Senate. With this charter, AAA promulgates an aggressive series of rules, among which is a requirement that all “supplements” administered to professional athletes must be licensed by AAA. “Supplements” are defined broadly to include “any substance used or ingested for the purpose of increasing athletic ability beyond the traditional means of training.” Because the supplements often are marketed to the public as well as professional athletes, AAA also requires all supplement manufacturers to provide “material disclosure” of the active ingredients and intended use for all supplements. Additionally, supplement manufacturers are required to provide a complete chemical formula for each supplement to AAA as part of the licensing requirement. To promote competition among supplement providers, AAA also published a “minute statement” that it will revoke or deny a license for any supplement provided to more than four teams in any one professional sport.
Body Better, Inc. (“BBI”) is a
pharmaceutical company that makes various health and fitness supplements. Its CEO is the brother of the
After Carrie Lou Rotten, a professional basketball player, publicly blames Flax-o-Lax for causing sudden, unanticipated weight loss, an AAA investigation reveals that Flax-o-Lax contains a very powerful laxative that interferes with a body’s absorption of nutrition. BBI thereafter submitted a revised licensing application to AAA for Flax-o-Lax, asserting a change in the intended use from muscle toning to weight loss. AAA never replied to the amended licensing application.
Instead, AAA sent a letter to BBI informing it that its license to manufacture and distribute Flax-o-Lax is suspended pending a review of any information BBI wishes to send to AAA to argue otherwise. BBI is allowing 15 days to send a written statement to AAA, which may include all arguments against the license revocation. AAA will provide an administrative law judge (“ALJ”) to review the statement from BBI and a written statement from AAA, and to determine whether the license suspension should become final.
Soon thereafter, the President sends a letter terminating the services of the Administrator of the AAA, noting that the Administrator’s services “no longer are consistent with the interests of my administration.”
Prior to any hearing on the licensing of Flax-o-Lax, Drug Co. purchases BBI. Drug Co. already provides a supplement licensed for the same purpose and similar to Flax-o-Lax to four professional basketball teams.
After BBI and AAA exchange arguments in writing before the ALJ, the ALJ rules in favor of AAA and upholds the license revocation.
(Question continues on next
page.)
QUESTIONS to Part II:
1. What arguments should Drug Co. (formerly BBI) have included in its statement to the ALJ?
2. What issues must Drug Co. (formerly BBI) address in any appeal of the ALJ’s ruling?
3. For consideration in a personal injury action but prior to any judicial filing, can Carrie obtain the chemical formula for Flax-o-Lax from AAA?
4. May the President remove the Administrator of AAA?