Deck 3: The Us Legal System and Alternative Dispute Resolution

Question 1

There is no right of appeal from a decision of an administrative law judge.

Answer 1

False
Explanation: An appeal to the full commission or the head of an agency may then be filed and that decision may be appealed to the circuit court of appeals.

Question 2

The primary type of rule making used by administrative agencies is informal rule making.

Answer 2

True
Explanation: The primary type of rule making used by administrative agencies is informal rule making, or notice-and-comment rule making.

Question 3

The Small Business Administration is an example of an executive agency.

Answer 3

True
Explanation: The Small Business Administration is an executive agency, Exhibit 3-1.

Question 4

Which of the following is generally defined as any body created by the legislative branch to carry out specific duties?

A) An administrative agency
B) A legal agency
C) A quasi-legal agency
D) A procedural agency
E) A regulatory agency

Question 5

Administrative agencies are located at the federal level only.

Question 6

Administrative law consists of procedural, but not substantive, rules.

Question 7

Which of the following are rules regarding the internal operations of an agency?

A) Procedural
B) Interpretive
C) Legislative
D) Adjudicative
E) Judicial

Question 8

If a statute is drafted in a manner that is ambiguous with respect to the type of agency rule making that is required, a court will interpret the rule as requiring formal rule making.

Question 9

Which of the following are rules of an agency that are policy expressions having the effect of law?

A) Procedural
B) Interpretive
C) Legislative
D) Adjudicative
E) Judicial

Question 10

Which of the following is an order issued by an agency to appear at a particular time and place and provide testimony?

A) A subpoena
B) A subpoena ducestecum
C) A summons
D) A summons ducestecum
E) A required documented appearance

Question 11

Under the Privacy Act a federal agency may not disclose information about an individual to other agencies or organizations without that individual's written consent.

Question 12

Federal administrative agencies are created by Congress through passage of ________________ legislation, which is a statute that specifies the name, functions, and specific powers of the administrative agency.

A) Administrative
B) Enabling
C) Statutory
D) Agency
E) Interstate

Question 13

What types of powers do administrative agencies have?

A) Legislative
B) Judicial
C) Executive
D) Legislative, judicial, and executive
E) Legislative and judicial, but not executive

Question 14

Which of the following consists of the substantive and procedural rules created by administrative agencies involving applications, licenses, permits, available information, hearings, appeals, and decision making?

A) Executive law
B) Congressional law
C) Administrative law
D) Enabling law
E) Rule law

Question 15

Which of the following is a type of rule that an agency may enact?

A) Procedural
B) Interpretive
C) Legislative
D) Procedural, interpretive, and legislative
E) Procedural and interpretive, but not legislative

Question 16

Prior to the passage of the Administrative Procedures Act, agencies could decide on their own how to make rules, conduct investigations, and hold hearings and trials.

Question 17

There is no right to a jury in administrative agency disputes.

Question 18

The Government in Sunshine Act requires that federal agencies publish in the FederalRegister places where the public can get information from the agency.

Question 19

Which of the following was the first federal administrative agency created?

A) The Interstate Commerce Commission
B) The Securities and Exchange Commission
C) The Internal Revenue Service
D) The Social Security Administration
E) The Food and Drug Administration

Question 20

Which of the following are rules that explain how the agency views the meaning of the statutes for which the agency has administrative responsibility?

A) Procedural
B) Interpretive
C) Legislative
D) Adjudicative
E) Judicial

Question 21

Which of the following is false regarding executive agencies at the federal level?

A) The administrative head of an executive agency is appointed by the president with the advice and consent of the U.S. House of Representatives.
B) Executive-agency heads may be discharged by the president at any time, for any reason.
C) Executive agencies are usually under one of the cabinet-level departments.
D) Executive agencies are generally located within the executive branch.
E) Executive agencies tend to have responsibility for making rules covering a broad spectrum of industries and activities.

Question 22

Which of the following is an act passed by Congress and serves as a major limitation on how federal agencies are run?

A) The Agency Restriction Act
B) The Regulatory Agency Act
C) The Agency Regulation Act
D) The Administrative Procedures Act
E) The Regulatory Restriction Act

Question 23

Which of the following is false regarding federal independent agencies?

A) Independent agencies are governed by a board of commissioners.
B) The president appoints the commissioners of independent agencies with the advice and consent of the Senate.
C) The commissioners may be removed in the discretion of the president.
D) No more than a simple majority of an independent agency can be members of any single political patty.
E) The agencies are generally not located within any department.

Question 24

Executive agencies are referred to as which of the following?

A) Judicial-level agencies
B) Adjudicative agencies
C) Cabinet-level agencies
D) Approval agencies
E) Presidential agencies

Question 25

Which of the following is a federal executive agency?

A) The Federal Deposit Insurance Corporation
B) The Equal Employment Opportunity Commission
C) The Nuclear Regulatory Commission
D) The Federal Deposit Insurance Corporation, the Equal Employment Opportunity Commission, and the Nuclear Regulatory Commission
E) The Federal Deposit Insurance Corporation and the Equal Employment Opportunity Commission, but not the Nuclear Regulatory Commission

Question 26

Agencies are classified as either ___________ or __________.

A) Legislative; executive
B) Legislative; independent
C) Judicial; independent
D) Executive; independent
E) Judicial; executive

Question 27

Which of the following was the result in AlexisPerezv. JohnAshcroft, the case in the text in which the plaintiff claimed that without formal rule making as required by law, the Immigration and Naturalization Service wrongfully imposed a rule requiring that applicants for visas to work in a professional capacity in a religious vocation have formal religious training?

A) The court ruled that no formal rule making was required because the agency was merely interpreting previously approved regulations.
B) The court ruled that no formal rule making was required because the Immigration and Naturalization Service was exempt from the Administrative Procedures Act.
C) The court upheld the rule on the basis that as a potential immigrant, the plaintiff lacked standing to sue.
D) The court struck the rule on the basis that the Immigration and Naturalization Service lacked the authority to pass any rules whatsoever when First Amendment freedom of religion rights were at issue.
E) The court struck the rule on the basis that all substantive rules adopted by an agency creating law must be implemented through formal rule-making procedures.

Question 28

Parties in a dispute before an administrative law judge may reach a settlement via a[n] _________________.

A) Certified agreement
B) Approved order
C) Sealed compromise
D) Consent order
E) Administrative acknowledgement

Question 29

Which of the following is a type of rule making done by agencies?

A) Formal
B) Informal
C) Hybrid
D) Formal, informal, and hybrid
E) Formal and informal, but not hybrid

Question 30

Which of the following is a term used to refer to agencies that do not clearly fall into either the classification of an executive agency or the classification of independent agency?

A) Combined
B) Hybrid
C) Joined
D) Registered
E) Judicial

Question 31

What do the initials ALJ represent in the administrative law arena?

A) Administrative Legal Journal
B) Agency Legal Jargon
C) Administrative Law Judge
D) Agency Legal Judge
E) Agency Law Jurisprudence

Question 32

Which of the following is true regarding decisions of a federal administrative law judge that are appealed into the federal court system?

A) Decisions of the administrative law judge are usually upheld.
B) Decisions of the administrative law judge are usually denied.
C) Decisions of the administrative law judge are upheld approximately 50% of the time.
D) Decisions of the administrative law judge are generally upheld as a matter of law unless a jury is requested.
E) None of these. There is no right of appeal into the federal court system.

Question 33

Which of the following is a federal independent agency?

A) The Consumer Product Safety Commission
B) The Veterans Administration
C) The Occupational Safety and Health Administration
D) The Consumer Product Safety Commission, the Veterans Administration, and the Occupational Safety and Health Administration
E) The Consumer Product Safety Commission and Veterans Administration, but not the Occupational Safety and Health Administration.

Question 34

Which of the following are exemptions from rule making that allow an agency to decide whether public participation will be allowed?

A) Rule making proceedings with regard to military or foreign affairs
B) Rule making proceedings with regard to agency management or personnel
C) Rule making proceedings with regard to public property of an agency
D) Rule making proceedings with regard to contracts of an agency
E) All of these

Question 35

Which of the following are the most common types of rule making done by agencies?

A) Formal and hybrid
B) Informal and hybrid
C) Formal and informal
D) Judicial and informal
E) Legislative and formal

Question 36

Which of the following are general statements about directions in which an agency intends to proceed with respect to its rule-making or enforcement activities?

A) Policy statements
B) Interpretative statements
C) Planning notices
D) Review statements
E) Warning notices

Question 37

In informal rule making, the date on which a rule becomes effective must be at least _________________ days after publication of the final rule in the FederalRegister.

A) 15
B) 20
C) 30
D) 45
E) 60

Question 38

Under which of the following does each concerned interest group and the agency send representatives to bargaining sessions led by a mediator with any agreement forwarded to the agency?

A) Mediation
B) Regulation
C) Reg-neg
D) Med-neg
E) Arb-med

Question 39

Which of the following is an order issued by an agency to appear at a particular time and place and bring specified documents?

A) A subpoena
B) A subpoena ducestecum
C) A summons
D) A summons ducestecum
E) A required documented appearance

Question 40

Executive agencies tend to focus on _______________ regulation whereas independent agencies are more often focused on _____________ regulation.

A) Social; economic
B) Political; safety
C) Social; political
D) Safety; social
E) Economic; safety

Question 41

How many days, if any, does Congress have in which to review proposed agency rules?

A) 0
B) 20
C) 30
D) 60
E) 90

Question 42

In order to be upheld in court, an agency's fact finding must be supported by which of the following?

A) Substantial evidence
B) A rational basis
C) Any evidence
D) Reasonable evidence
E) Non-hearsay evidence

Question 43

Reference - Four Paws Protection. Congress set up a new agency to more closely regulate testing of personal and cosmetic products on animals. Legislation was passed naming the agency the "Animal Protection Commission," and setting forth the function of the agency and its specific powers. Congress provided the agency with the power to make rules, investigate violations, and adjudicate charges of wrongdoing. The agency proceeded to properly give notice and issue rules. The rules provided for civil as well as for criminal penalties. Agency personnel issued an order for Fluffy Shampoo Corporation to attend a hearing regarding its animal testing and to bring to the hearing all company documents pertaining to animal testing. Fluffy Shampoo resisted on the basis that the agency had no power to compel its attendance at a hearing or to require it to provide any documents. Fluffy Shampoo also claimed that criminal penalties may not flow from violation of agency rules. The agency proceeded to issue a ruling that Fluffy Shampoo cease all activity based upon its refusal to cooperate. Which of the following is true regarding the claim of Fluffy Shampoo that the agency had no power to compel attendance and the provision of documents?

A) Fluffy Shampoo is correct because while the agency had the right to request voluntary compliance and refer Fluffy Shampoo to law enforcement if Fluffy Shampoo would not voluntarily comply, the agency had no power to require compliance.
B) Fluffy Shampoo is correct in that the agency could not require the provision of documents, but incorrect regarding the power of the agency to require attendance at a hearing.
C) Fluffy Shampoo is correct in that the agency could not require attendance at a hearing, but incorrect regarding the power of the agency to require the provision of documents.
D) Fluffy Shampoo is incorrect, and the agency had the power to issue a document called a subpoena requiring attendance at a hearing and a document called a subpoena ducestecum requiring that Fluffy Shampoo bring specified documents to the hearing.
E) Fluffy Shampoo is incorrect, and the agency had the power to issue a document called a certified order requiring attendance at a hearing and a document called a summons requiring that Fluffy Shampoo bring specified documents to the hearing.

Question 44

Reference - DUI Charge. Monique was licensed to train massage therapists. A new federal agency, the Aesthetic and Massage Commission, took very seriously its role of enforcing the statute enabling the Commission to do its work and providing that licensed massage therapists must refrain from "any act or conduct indicating bad faith, incompetence, dishonesty, or improper dealing." Monique, while driving home late one night from a party, was stopped by the police and arrested for driving under the influence of alcohol. She pled guilty to the offense. When the Aesthetic and Massage Commission discovered the offense, the officials of the agency met, decided that Monique might drink on the job, and that she might pose a danger to students. Accordingly, her license to teach massage therapy was revoked. Monique threatened to sue to retain her license and was told by the agency head that she had no right to appeal to court because of the nature of the Aesthetic and Massage Commission; and that, in any event, action by an agency is always upheld. Which of the following is true regarding the statement by the agency that assuming an appeal to court is available, agency action is always upheld?

A) The agency representative is essentially correct because agency decisions are upheld in over 99% of the cases and may only be overturned if fraud on the part of the agency is proven.
B) The agency representative is incorrect because agency decisions are usually struck down unless they are supported by clear and convincing evidence.
C) The agency representative is incorrect because agency decisions are usually struck down unless it can be established that an appeal of an agency decision is frivolous and without reason.
D) The agency representative is incorrect because agency decisions are struck down in approximately 50% of the cases on appeal.
E) The agency representative is incorrect because while agency actions are usually upheld, they may be struck down if the agency, for example, exceeded its power.

Question 45

Which of the following was the result in YanJuWangv. GeorgeValverde, the case in the text in which the plaintiff sued for a mandate compelling that the Department of Motor Vehicles set aside its revocation of plaintiff's noncommercial driver's license based on her allegedly cheating on an exam for a commercial driver's license?

A) The court ruled that the agency lacked statutory authority to revoke the noncommercial license.
B) The court ruled that the agency failed to provide a proper hearing prior to revoking the noncommercial license.
C) The court ruled that the agency could not revoke the noncommercial license because the plaintiff was not criminally prosecuted.
D) The court ruled that the agency could revoke the noncommercial license because the plaintiff was criminally prosecuted.
E) The court ruled that the agency could revoke the noncommercial license because it was granted the statutory authority to do so.

Question 46

Which of the following is false regarding the Freedom of Information Act?

A) Information may be obtained under the act regarding how an agency gets and spends its money.
B) Citizens are entitled to any records that the government has about them.
C) Records involving national security are exempted from the act.
D) Information regarding the agency's personnel records may be obtained under the act.
E) Records involving an individual's private life are exempted from the act.

Question 47

Reference - New Agency. Debby just got a job as an assistant in a new federal agency called the Accounting Commission that was set up to regulate the accounting and auditing profession. The agency is headed by commissioners who serve for fixed terms and cannot be removed for cause. Additionally, no more than a majority of the commissioners may be from the same political party. Her agency is getting ready to issue rules. The enabling legislation that set up the Accounting Commission specified that the agency could make rules but said nothing about the form of the rules. Debby's boss, Blaire, gave her some proposed rules and asked her to be sure that they were published and to take care of the next step in the approval process. Blaire also told her that at this point she was not very interested in hybrid rule making. What would be the next step in obtaining enactment of the rules after publication?

A) A vote in Congress
B) Approval by the president by executive order
C) A public hearing
D) Opportunity for all interested parties to submit written comments
E) A hearing before an administrative law judge

Question 48

Reference - New Agency. Debby just got a job as an assistant in a new federal agency called the Accounting Commission that was set up to regulate the accounting and auditing profession. The agency is headed by commissioners who serve for fixed terms and cannot be removed for cause. Additionally, no more than a majority of the commissioners may be from the same political party. Her agency is getting ready to issue rules. The enabling legislation that set up the Accounting Commission specified that the agency could make rules but said nothing about the form of the rules. Debby's boss, Blaire, gave her some proposed rules and asked her to be sure that they were published and to take care of the next step in the approval process. Blaire also told her that at this point she was not very interested in hybrid rule making. Which of the following is the most likely type of rule making in which the Accounting Commission was involved?

A) Informal
B) Formal
C) Legislative
D) Regulatory
E) Procedural

Question 49

Which of the following is a limit on agency power?

A) Political
B) Statutory
C) Informational
D) Political, statutory, and informational
E) Political and statutory, but not informational

Question 50

Which of the following has the power to create a federal agency?

A) The House of Representatives
B) The Senate
C) Congress
D) The President
E) The Administrative Regulatory Agency

Question 51

Which of the following are activities in which agencies may be involved?

A) Conducting research
B) Issuing permits
C) Managing property
D) Conducting research, issuing permits, and managing property
E) Conducting research and issuing permits, but not managing property

Question 52

Reference - Four Paws Protection. Congress set up a new agency to more closely regulate testing of personal and cosmetic products on animals. Legislation was passed naming the agency the "Animal Protection Commission," and setting forth the function of the agency and its specific powers. Congress provided the agency with the power to make rules, investigate violations, and adjudicate charges of wrongdoing. The agency proceeded to properly give notice and issue rules. The rules provided for civil as well as for criminal penalties. Agency personnel issued an order for Fluffy Shampoo Corporation to attend a hearing regarding its animal testing and to bring to the hearing all company documents pertaining to animal testing. Fluffy Shampoo resisted on the basis that the agency had no power to compel its attendance at a hearing or to require it to provide any documents. Fluffy Shampoo also claimed that criminal penalties may not flow from violation of agency rules. The agency proceeded to issue a ruling that Fluffy Shampoo cease all activity based upon its refusal to cooperate. Which of the following is the correct term for legislation passed by Congress specifying the name, functions, and specific powers of the Animal Protection Commission?

A) Enabling legislation
B) Enacting legislation
C) Approving legislation
D) Administrative regulation
E) Agency regulation

Question 53

According to the United Nations as discussed in the text, which of the following is true regarding e-government, meaning the delivery of government services through digital information technologies, including the Internet?

A) It is important because it reduces the cost of government while improving the quality of services and citizen access.
B) It is important because although it increases the cost of government, it improves the quality of services and citizen access.
C) It is important because it enables the government to keep closer track of perceived criminal activity
D) It is not important because face-to-face interaction with government employees is more efficient and cost effective.
E) It is not important because Internet sites cannot be kept sufficiently up-to-date to handle complex governmental issues.

Question 54

Which of the following is involved when an agency is referred to as a "captured" agency?

A) A belief that agency officials are unduly influenced by past ties to the industry regulated by the agency.
B) A belief that agency officials are unduly influenced by their political party.
C) A belief that agency officials are unduly influenced by politicians in the state in which the agency is located.
D) A belief that agency officials are unduly influenced by politicians in states most affected by the regulations put out by the agency.
E) A belief that agency officials are unduly influenced by the desires of Congress.

Question 55

To which of the following does the Freedom of Information Act not apply?

A) Congress
B) The federal courts
C) The executive staff of the White House
D) It does not apply to Congress, the federal courts, or to the executive staff of the White House
E) It does not apply to Congress or the federal courts, but it does apply to the executive staff of the White House.

Question 56

Reference - New Agency. Debby just got a job as an assistant in a new federal agency called the Accounting Commission that was set up to regulate the accounting and auditing profession. The agency is headed by commissioners who serve for fixed terms and cannot be removed for cause. Additionally, no more than a majority of the commissioners may be from the same political party. Her agency is getting ready to issue rules. The enabling legislation that set up the Accounting Commission specified that the agency could make rules but said nothing about the form of the rules. Debby's boss, Blaire, gave her some proposed rules and asked her to be sure that they were published and to take care of the next step in the approval process. Blaire also told her that at this point she was not very interested in hybrid rule making. Which of the following would be the appropriate location for publication of the proposed rules?

A) The CongressionalReview
B) The Congressional Record
C) The AgencyPeriodical
D) The Comment and Review Forum
E) The FederalRegister

Question 57

Which of the following has the power to dissolve a federal agency?

A) The House of Representatives
B) The Senate
C) Congress
D) The President
E) The Administrative Regulatory Agency

Question 58

Reference - New Agency. Debby just got a job as an assistant in a new federal agency called the Accounting Commission that was set up to regulate the accounting and auditing profession. The agency is headed by commissioners who serve for fixed terms and cannot be removed for cause. Additionally, no more than a majority of the commissioners may be from the same political party. Her agency is getting ready to issue rules. The enabling legislation that set up the Accounting Commission specified that the agency could make rules but said nothing about the form of the rules. Debby's boss, Blaire, gave her some proposed rules and asked her to be sure that they were published and to take care of the next step in the approval process. Blaire also told her that at this point she was not very interested in hybrid rule making. Which of the following is the appropriate agency classification for the Accounting Commission?

A) Executive
B) Independent
C) Administrative
D) Legislative
E) Judicial

Question 59

Reference - DUI Charge. Monique was licensed to train massage therapists. A new federal agency, the Aesthetic and Massage Commission, took very seriously its role of enforcing the statute enabling the Commission to do its work and providing that licensed massage therapists must refrain from "any act or conduct indicating bad faith, incompetence, dishonesty, or improper dealing." Monique, while driving home late one night from a party, was stopped by the police and arrested for driving under the influence of alcohol. She pled guilty to the offense. When the Aesthetic and Massage Commission discovered the offense, the officials of the agency met, decided that Monique might drink on the job, and that she might pose a danger to students. Accordingly, her license to teach massage therapy was revoked. Monique threatened to sue to retain her license and was told by the agency head that she had no right to appeal to court because of the nature of the Aesthetic and Massage Commission and that in any event, action by an agency is always upheld. Which of the following would have reached the decision at her hearing before the administrative agency?

A) An adjudicative law judge
B) An administrative law judge
C) A federal court judge
D) A superior court judge
E) A jury

Question 60

Reference - DUI Charge. Monique was licensed to train massage therapists. A new federal agency, the Aesthetic and Massage Commission, took very seriously its role of enforcing the statute enabling the Commission to do its work and providing that licensed massage therapists must refrain from "any act or conduct indicating bad faith, incompetence, dishonesty, or improper dealing." Monique, while driving home late one night from a party, was stopped by the police and arrested for driving under the influence of alcohol. She pled guilty to the offense. When the Aesthetic and Massage Commission discovered the offense, the officials of the agency met, decided that Monique might drink on the job, and that she might pose a danger to students. Accordingly, her license to teach massage therapy was revoked. Monique threatened to sue to retain her license and was told by the agency head that she had no right to appeal to court because of the nature of the Aesthetic and Massage Commission; and that, in any event, action by an agency is always upheld. Which of the following is true regarding the statement of the agency that Monique had no right to appeal to court?

A) The agency representative was wrong; and if Monique cannot resolve the issue within the agency, she may appeal to court for judicial review.
B) Because the agency was set up to protect the safety of the public, the agency representative is correct unless Monique can establish that she entered into a separate contractual arrangement with the agency when she was hired that gave her the right to appeal decisions to court.
C) Further information is needed regarding whether the agency was an executive agency or an independent agency because while actions of an independent agency may be appealed to court, actions of an executive agency may not be appealed to court.
D) Further information is needed regarding whether the agency was an executive agency or an independent agency because while actions of an executive agency may be appealed to court, actions of an independent agency may not be appealed to court.
E) Because the agency was set up to protect the safety of the public, the agency representative is correct; and Monique has no right to a court action and no right to enter into a contractual agreement with the agency regarding appeal rights.

Question 61

Reference - Disappointed Applicant. Polly, who had a regular driver's license to operate an automobile, decided that she really wanted to drive a tractor-trailer truck. She thought that it would be nice to earn money while seeing the country. Polly had all applicable training and went to her state's department of motor vehicle office to take the test required in order to obtain a license to drive a tractor-trailer truck. While taking the test, in an effort to relieve stress, Polly was stretching her neck and looking around at the other nervous test takers. The proctor for the exam saw her and accused her of stretching and straining to look at the exam answers of other test takers. Her application to drive a tractor-trailer was denied. The local agency department head was also furious with Polly and proceeded to revoke her regular automobile driver's license as well. Applicable statutes provide as follows: (1) "the DMV may suspend or revoke the privilege of any person to operate a motor vehicle upon any of the grounds which authorize the refusal to issue a license"; (2) "the DMV may refuse to issue a license to any person who has "committed any fraud in any application." Polly hears that you have just finished business law and asks for advice. She says that she had decided that she does not really want to drive a tractor-trailer truck because of her neck problems but that she really would like to have her license to operate a regular automobile reinstated. The statutes setting forth the authority of the agency are called ________________ statutes.

A) Enabling
B) Authorization
C) Enforcement
D) Dedicated
E) Final

Question 62

Set forth the steps involved in formal rule making.

Question 63

Set forth the stages and requirements of informal agency rule making.

Question 64

Why are administrative agencies at times referred to as the "fourth branch of government," and is this assertion true?

Question 65

Reference - Disappointed Applicant. Polly, who had a regular driver's license to operate an automobile, decided that she really wanted to drive a tractor-trailer truck. She thought that it would be nice to earn money while seeing the country. Polly had all applicable training and went to her state's department of motor vehicle office to take the test required in order to obtain a license to drive a tractor-trailer truck. While taking the test, in an effort to relieve stress, Polly was stretching her neck and looking around at the other nervous test takers. The proctor for the exam saw her and accused her of stretching and straining to look at the exam answers of other test takers. Her application to drive a tractor-trailer was denied. The local agency department head was also furious with Polly and proceeded to revoke her regular automobile driver's license as well. Applicable statutes provide as follows: (1) "the DMV may suspend or revoke the privilege of any person to operate a motor vehicle upon any of the grounds which authorize the refusal to issue a license"; (2) "the DMV may refuse to issue a license to any person who has "committed any fraud in any application." Polly hears that you have just finished business law and asks for advice. She says that she had decided that she does not really want to drive a tractor-trailer truck because of her neck problems but that she really would like to have her license to operate a regular automobile reinstated. Assuming Polly seeks to appeal revocation of her license to drive an automobile through any available avenues, what is the most likely result?

A) The agency decision will be upheld so long as it is determined that the agency head reasonably thought she was cheating, even if she was not.
B) The agency decision will be upheld so long as it is determined that substantial evidence supported the agency head's decision that she was cheating, even if she was not.
C) The decision will be reversed because Polly has decided that she no longer wants a license to drive tractor-trailer trucks.
D) The appeal will be dismissed because Polly had no right to review of the agency head's decision.
E) The revocation of her license to drive automobiles will be reversed because the agency had no authority to take that step.

Question 66

Set forth the steps involved in hybrid rule making.

Question 67

Reference - Four Paws Protection. Congress set up a new agency to more closely regulate testing of personal and cosmetic products on animals. Legislation was passed naming the agency the "Animal Protection Commission," and setting forth the function of the agency and its specific powers. Congress provided the agency with the power to make rules, investigate violations, and adjudicate charges of wrongdoing. The agency proceeded to properly give notice and issue rules. The rules provided for civil as well as for criminal penalties. Agency personnel issued an order for Fluffy Shampoo Corporation to attend a hearing regarding its animal testing and to bring to the hearing all company documents pertaining to animal testing. Fluffy Shampoo resisted on the basis that the agency had no power to compel its attendance at a hearing or to require it to provide any documents. Fluffy Shampoo also claimed that criminal penalties may not flow from violation of agency rules. The agency proceeded to issue a ruling that Fluffy Shampoo cease all activity based upon its refusal to cooperate. Which of the following is true regarding the claim of Fluffy Shampoo that criminal penalties may not result from violation of agency rules?

A) Fluffy Shampoo is correct.
B) Fluffy Shampoo is incorrect, but any criminal penalties may not exceed a fine of $1,000.
C) Fluffy Shampoo is incorrect, but any criminal penalties may not exceed a fine of $10,000.
D) Fluffy Shampoo is incorrect regarding its claim that all agencies lack the authority to institute a criminal penalty, but correct in that the Animal Protection Commission cannot enforce a criminal penalty because an agency can only enforce a criminal penalty if human health or national security is involved.
E) Fluffy Shampoo is incorrect, and criminal penalties may be imposed assuming statutory authority exists for the agency to do so.

Question 68

Reference - Disappointed Applicant. Polly, who had a regular driver's license to operate an automobile, decided that she really wanted to drive a tractor-trailer truck. She thought that it would be nice to earn money while seeing the country. Polly had all applicable training and went to her state's department of motor vehicle office to take the test required in order to obtain a license to drive a tractor-trailer truck. While taking the test, in an effort to relieve stress, Polly was stretching her neck and looking around at the other nervous test takers. The proctor for the exam saw her and accused her of stretching and straining to look at the exam answers of other test takers. Her application to drive a tractor-trailer was denied. The local agency department head was also furious with Polly and proceeded to revoke her regular automobile driver's license as well. Applicable statutes provide as follows: (1) "the DMV may suspend or revoke the privilege of any person to operate a motor vehicle upon any of the grounds which authorize the refusal to issue a license"; (2) "the DMV may refuse to issue a license to any person who has "committed any fraud in any application." Polly hears that you have just finished business law and asks for advice. She says that she had decided that she does not really want to drive a tractor-trailer truck because of her neck problems but that she really would like to have her license to operate a regular automobile reinstated. What should Polly do next assuming her state's administrative scheme is the same as the federal scheme?

A) She should appeal within the agency and later to court if she cannot receive a favorable agency determination.
B) She should immediately appeal to court bypassing any other agency proceedings.
C) She should appeal within the agency, but no later court proceedings would be possible.
D) She should file a writ to negate any results in connection with the first test because by law applicants are entitled to retake a licensure test at least once.
E) At the moment, there is nothing else that Polly can do to obtain reinstatement of her license; and she can only ask the agency for reconsideration of her position at a later date.

Question 69

When may an agency claim an exemption from rule making requirements on the basis that public notice and comment procedures are "impracticable, unnecessary, or contrary to the public interest" and what steps must be taken?