ADMINISTRATIVE LAW SPRING 2017
FINAL EXAM Professor Lucas
Instructions 1. At the beginning of your answer to each question, clearly and unambiguously identify the question being answered, i.e., Question 1, 2, 3, or 4. 2. Question 1 is worth 40 percent of your final exam grade. Question 2 is worth 25 percent of your final exam grade. Questions 3 and 4 are separately worth 12.5 percent of your final exam score. If you choose to match time during exam with point value, then you should spend no more than 80 minutes on Question 1; 50 minutes on Question 2; and 25 minutes on Questions 3 and 4. 3. You are welcome to abbreviate party names in your answer, but please make sure the abbreviation is clear, e.g., “W.A.M.� for Wolfgang Amadeus Mozart. 4. If you complete the exam before closing time, please quietly leave the exam room. You may keep the exam, but may not distribute it to others. 5. I will not answer questions after the beginning of the exam. Please note in the exam text if you had an issue with a question or did not understand the prompt.
Good luck!
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Question 1 On January 27, 2017, Donald J. Trump, President of the United States (“President Trump”) issued an executive order directing, among other matters, the temporary suspension of entry of certain foreign nationals into the United States. The United States District Court for the Western District of Washington issued a temporary restraining order enjoining nationwide enforcement of the executive order. The United States Court of Appeals for the Ninth Circuit affirmed. On March 6, 2017, President Trump issued a revised executive order, which in relevant part, restricts travelers from six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The order states: In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high. Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order. The order takes administrative notice of alleged threats to the security of the United States homeland arising from international terrorist operations in the six subject countries. Section 3 provides waivers for residents from the six subject countries under the discretion of the Secretary of Homeland Security. In particular, the revised order provides that the Secretary, through officers of United States Customs and Border Protection Agency, could waive enforcement of the pause of entry on a case-by-case basis in the following circumstances:
Situations in which the person was previously admitted for work or study he or she wants to resume;
Situations in which the person was outside the United States at the time of the order but has significant contacts inside it;
Situations of significant business or professional obligations;
Situations involving visitation of a close family member who is a U.S. citizen or resident;
Situations involving young children or infants; and
Situations involving people employed by the United States or who have been of service to this country
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The revised order clarifies that the temporary pause of entry (or “travel ban”) shall not apply to foreign nationals from the subject countries who before the effective date of the order had been granted asylum, visa status, or refugee protection by the Department of State. Despite language indicating discretion, customs officers typically follow detailed guidelines promulgated through Department of Homeland Security (“DHS”) memoranda that advise when a potential entrant is subject to a waiver. For example, in other immigration areas, DHS has stated that “young” children are those under the age of 10 years, “close” family members mean those only within a nuclear family, and “significant business” interests require business ownership. After publication of the revised travel order, a group of faculty at the Hutchinson (KS) Community College filed suit against the United States (the “Government”). The faculty group named “Sunflower Profs for Syrian Success” (“SPSS”) contends that the revised travel order will limit their ability to work with Syrian students, to collaborate with Syrian scholars, and if Syria invokes a reciprocal ban, will limit their ability to travel to Syria for academic research. There are currently no Syrian students or scholars at Hutchinson Community College, nor have any of the group ever traveled or had plans to travel to Syria. In addition to the Sunflower Profs for Syrian Success, Iman Abdulmajid, a Somali citizen and famous fashion model known commonly as Iman, also filed suit to challenge the temporary pause in entry of Somali nationals.1 Iman states that she had planned to participate in a fashion show at the Prairie Dunes Golf Course in Hutchinson, Kansas in August 2017 where she was likely to receive payment of roughly $400,000. Iman typically models in Europe and lived there until recently with her late husband, English performer David Bowie. Iman has, however, been to the United States on numerous occasions since the 1970s. Both Sunflower Profs for Syrian Success and Iman have filed suit in the United States District Court for the District of Kansas. As a threshold matter, the government contends plaintiffs lack standing. Plaintiffs contend the order violates separation of powers doctrine, due process, and the APA, both due to requirements for notice-and-comment rulemaking and because the DHS case-by-case review process permits impermissible agency bias arising from comments made by President Trump and cabinet members about citizens of the subject countries. Please evaluate all arguments to be raised by the Government and both plaintiffs. Which party is likely to prevail and why?
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For this question, assume Iman has only Somali citizenship. 2
Question 2 The City of Los Angeles, California receives the majority of its water supply from the Colorado River Aqueduct, which is a system of reservoirs, canals, pump stations, storage facilities, power plants, and pipelines. The movement of water through the aqueduct from one system to another, e.g., Colorado River to man-made canal, is known as water transfer and is regulated by the Environmental Protection Agency (EPA). EPA typically takes a hands off approach to water transfers, choosing not to subject them to the requirements of the National Pollutant Discharge Elimination System (“NPDES”) permitting program established by the Clean Water Act of 1972. Critics contend that water transfers can move harmful pollutants from one body of water to another, potentially putting local ecosystems, economies, and public health at risk. Critics also contend that the Clean Water Act expressly requires regulation in the area to avoid the “addition of any pollutant to navigable waters from any point source.” Their argument provides further that a party must obtain an NPDES permit in order to discharge a specified amount of a specified pollutant even when the pollution arises from a public benefit use, such as water transfers for Southern California’s water supply. In the event an NPDES permit is not provided, then the transfer can be a polluting Clean Water Act violation. While acknowledging these concerns, the EPA has held to its position. Promising to “eliminate 95 percent of regulations, maybe more,” President Donald J. Trump has directed EPA Administrator Scott Pruit to formalize its non-enforcement of Clean Water Act provisions to water transfers under a rule known as the Water Transfers Rule. In essence, the EPA is mandating that water transfers, even if with polluting effects, are not Clean Water Act violations. Explaining the perceived departure from Clean Water Act and NPDES rules, the EPA explained its “holistic approach to the text” of the statute (CWA) to oversee all activities, including positive effects to the economy, concerning the nation’s waters. On what bases, will plaintiffs claim the EPA action is unlawful? Is the agency’s interpretation of the statute entitled to deference? If so, what type? Does the problem also present a State Farm issue? If not, then what type of issue more accurately reflects a State Farm issue? Finally, what injury must parties allege to satisfy the standing inquiry?
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Question 3 The CBS television network, formerly known as the Columbia Broadcasting System, operates a television network airing outstanding programming such as “60 Minutes” and the critically acclaimed comedy “Two Broke Girls.” CBS has more than 240 affiliated television stations throughout the United States. CBS provides programming to its affiliates through chain operating agreements. Under such agreements, CBS enters into contracts with its affiliates that CBS will provide programming for most of the broadcast day and the affiliates would agree to air the majority of the CBS television network schedule. Because CBS wanted a strong relationship with viewers throughout the United States, the network typically entered into fiveyear agreements with its affiliates and required five hours of CBS programming on its affiliates each day. The FCC regulates broadcast television networks and stations and in 2017 promulgated a rule known as the “Chain Broadcasting Regulations.” The rule forbade the FCC from providing or renewing a license for any affiliated station that had entered into an affiliate agreement longer than two years and precluded licensing to any affiliate required to air more than four hours per day of network broadcasts. The rule does not become effective until January 1, 2018. Counsel for CBS recently called you and would like to challenge the regulation prior to its January 2018 effective date. The FCC contends that the proper avenue for challenge is by affiliated stations seeking licenses, not networks. The FCC also contends any challenge is premature. What will you advise counsel for CBS? Is CBS a proper plaintiff and does the network present a justiciable question? Please evaluate the arguments to be raised by both parties.
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Question 4 Joan Crawford was a part-time driver for the United Parcel Service (UPS). When Crawford became pregnant, her physician advised her that she should not life more than 20 pounds. UPS, however, required drivers like Crawford to be able to lift 50 pounds and informed her she could not work during her pregnancy and would not receive pay. Crawford claimed that UPS’s actions violated the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act of 1964, which forbids a covered employer from discriminating any individual because of the person’s sex or on the basis of pregnancy, childbirth, or related medical conditions. Subsequent to passage of the Acts, the Equal Employment Opportunity Commission (EEOC) issued guidance for the provisions directing that an employer must treat one with pregnancyrelated physical limitations in the same manner as “other medical conditions.” EEOC states that if other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function. Earlier EEOC guidance did not resolve the ambiguity of the term “other medical conditions.” Rather, it simply tells employers to treat pregnant persons like those with other disabilities, without clarifying how that instruction should be implemented when an employer does not treat all non-pregnancy-related disabilities alike In March 2017, however, EEOC promulgated an additional guideline to address the ambiguity stating that an employer must treat pregnant employees suspended from lifting-related work in a manner similar to other employees unable to lift above a certain amount for 90 days or more. The EEOC further provides that an employer must provide substitute or “light” duty to a pregnant employee even if the employer has no policy permitting other employees to perform light duty obligations. UPS does not permit drivers unable to lift above a certain weight to remain employed with the firm, so the EEOC interpretation creates a need for UPS to find substitute tasks for pregnant employees as a separate class. In May 2017, Crawford filed suit under the aforementioned provisions and contends the 2016 EEOC guideline is entitled to deference. What types of deference, if any, would the parties wish for the court to apply to the EEOC interpretation? Should a court defer to the EEOC 2016 interpretation in any way?
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END OF EXAM Good luck in your future endeavors!
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