Part Iii - Administrative Processfinal Examination

Administrative Process Final Exam

Professor Erin B. Corcoran

Spring 2015

PART III - ADMINISTRATIVE PROCESSFINAL EXAMINATION

Instructions for Part III:

You may not consult any materials, written or electronic, other than any materials provided in the exam.

You will have approximately 100 minutes to complete Part III of the exam. Part III of the exam requires two written answers: part A and part B.

You must include your exam number on every page (do NOT put your name on this exam).

You must number your pages.

There is a word limitation of 1,000 for each answer in Part III. I will stop reading part A of the exam at word 1,000, and I will stop reading part B of the exam at word 1,000. Any additional words, in excess of the word limitation will not be read or graded. Also, while 1,000 words are the maximum words allowable for each answer in Part II, the questions can be answered sufficiently and for full credit in less than 1,000 words.

Honor Code Issues:

You are NOT permitted to discuss the exam, your exam answers or any questions you have about the exam with anyone other than the Registrar until all students have completed the exam. I will notify you by email when all students have completed the exam. If you discuss the exam before receiving that email, your score for the exam will be 0, and I will pursue honor code charges against you.

Question A: MAXIMUM 1,000 WORDS FOR YOUR ANSWER

Assume that all of the facts in this hypothetical are true and correct.

The Fair Credit Reporting Act (FCRA) imposes specific obligations on “consumer reporting agencies” with respect to the consumer information that they transmit. The FCRA limits the circumstances in which consumer reporting agencies may provide “consumer reports for employment purposes” and requires these agencies to “follow reasonable procedures to assure maximum possible accuracy of:” consumer reports; to issue notices to providers and users of information; and to post toll-free telephone numbers to allow consumers to request consumer reports. A negligent violation of these requirements “with respect to any consumer” subjects a consumer reporting agency to “actual damages,” attorney fees, and costs. In a “willful” violation, however, a consumer may choose between “actual damages” and statutory “damages of not less than $100 or not more than $1,000” and may also seek punitive damages.

Concordia, Inc. operates a website – “people search engine” – that provides information about individuals, including contact data, marital status, age, occupation, economic health, and wealth level. The search engine aggregates publicly available information regarding individuals from phone books, social networks, marketing surveys, real estate listings, business websites, and other sources into a database that is searchable via the Internet using an individual’s name, and displays the results of the searches in an easy to read format.

Vehda Singh has filed a complaint in the U.S. District Court for New Hampshire against Concordia, alleging that Concordia is a “consumer reporting agency” that issues “consumer reports” in violation of the FCRA. Singh is alleging that the search results associated with her name included inaccurate information indicating that she has more education and professional experience than she actually has, that she is married (although the fact is she is not), and that she is better situated financially than she really is. Singh is also alleging that the inaccurate information collected in Concordia’s search results had caused actual harm to Singh’s “employment prospects.” Her continued unemployment, she alleges, has cost her money and caused “anxiety, stress, concern, and/or worry about her diminished employment prospects.”

In replying to the complaint, Concordia has filed a motion to dismiss the lawsuit arguing that Vedha Singh lacks standing. You are a clerk for a federal judge on the U.S. District Court for New Hampshire. Your judge asks you to assess whether or not to grant Concordia’s motion to dismiss.

Question B: MAXIMUM 1,000 WORDS FOR YOUR ANSWER

Assume that all of the facts in this hypothetical are true and correct.

In 2011, a candle that a workman was using to inspect for air leaks ignited the Brown’s Ferry fire. The fire caused considerable damage to the nuclear power plant, and rendered the emergency core coolant system for one of the plants temporarily inoperable. Danger to the public was averted because back-up systems were able to shut down the unit safely. Nonetheless, the fire raised serious concerns about the adequacy of fire prevention practices and fire control measures at nuclear power plants. In 2012 following the Brown’s Ferry Fire the Nuclear Regulatory Commission (NRC) issued a report that recommended improved fire protection standards for operating nuclear power plants. Relying on the 2012 NRC report, the NRC then established technical guidelines for evaluating the fire safety of plants operating prior to January 1, 2013. The guidelines were entitled “Branch Technical Position 9.5.1.” In a number of cases, the evaluation process resulted in fire protection programs acceptable to both NRC staff and the plants in question. However, disagreement persisted on how duplicate systems should be designed. As a result of this disagreement, the NRC decided to use their rule making authority and onOctober 1, 2014, NRC issued a notice of proposed rulemaking and provided a 30 day comment period. The notice proposing the fire protection program included reference to the technical guidance it would be using in determining what changes would be made to the fire protection report. Specifically, the notice indicated that the agency would be relying on the 2012 Report on Brown’s Ferry Fire, guidelines it articulated in a memo “Branch Technical Position 9.5.1” and employed in the plant-by-plant safety evaluations.

In most cases in a nuclear power plant, it is possible to design duplicate systems for shutting down reactor units in case of an emergency such as a fire. The duplicate system is provided as a back-up, in case the primary shutdown system should be damaged or destroyed. It is thus especially important to ensure that the duplicated shutdown system cannot be damaged by whatever emergency disables the primary shutdown system.

In the plant-by-plant evaluations after the Brown’s Ferry fire, and in the notice of the proposed rulemaking, the NRC followed a “postulated hazard” approach to the protection of duplicate safe shutdown capacity. On this approach, a plant’s protection of such redundant shutdown capacity is tested by reference to a number of factors. In the fire protection program as proposed, these factors included the likely area within which a fire might spread, the fire extinguishing system used in the area, the accessibility of the area to fire fighters and equipment, the relative fire danger in the area, the availability of alternative methods for shutting down the reactor unit safely, and the fire retardant capacity of protective devices such as fire protective coatings.

Pursuant to these guidelines, NRC staff had approved the methods used to protect duplicate shutdown capacity at many power plants that had been operating prior to January 1, 2013. The final rule adopted by the NRC, however, abandoned the postulated hazards approach. Instead, the NRC stipulated three approved methods for protecting duplicated shutdown capacity. They are: (1) separation of the redundant system by a barrier able to withstand fire for at least three hours; (2) separation of the redundant system by a distance of at least twenty feet coupled with fire detectors and an automatic fire suppression system; and (3) enclosure of the redundant system in a fire barrier able to withstand fire for one hour with fire detectors and an automatic fire suppression system. These methods give no credit for fire retardant coatings and do not consider the relative fire danger of the area in which the redundant shutdown system is located.

Connecticut Light and Power is concerned that it may be especially difficult and expensive to redesign its operating power plant to meet the requirements in the final rule. They want to challenge the final rule. You are an associate at a law firm and your supervising partner has asked you to draft a memo to your client Connecticut Light and Power on the possible legal grounds they may have to challenge the final rule.