Fact Pattern 15-1 Congress Creates the Federal Authority on Homelessness (FAH) and Gave

Fact Pattern 15-1
Congress creates the Federal Authority on Homelessness (FAH) and gave it broad powers to issue regulations, conduct searches, investigate areas where homelessness is a particular problem, and bring actions against those who discriminate against the homeless, or fail to follow FAH regulations.
In March 2009, FAH issued a rule that businesses with 15 or more employees cannot discriminate against the homeless in employment. The regulation states that businesses must take steps to recruit homeless people as employees and must provide homeless employees with adequate shelter. No public hearings are held and the final rule was published in the Federal Register in June, 2009.
In October, 2009 FAH inspectors arrive at Elroy's Tackle Shop in Eureka, California. Elroy employs 18 people, including clerks, cashiers, and fishing guides. The inspectors ask Elroy what steps he has taken to hire a homeless person. He tells the inspectors that he has taken no steps, they fine him $5000 and inform him that he had better take such steps soon.
Elroy did not know FAH existed or that he had a duty to try to hire homeless people. He calls his attorney, Maia, and asks her what to do. She suggests that he file a complaint stating that FAH failed to follow proper procedures when it issued the rule.
-Refer to Fact Pattern 15-1. Suppose FAH claims its rule is an interpretative rule, not subject to court review, that it is not a substantive rule. If Elroy later sues the agency, what will the likely outcome of the case be? A court will:

A) dismiss the case for lack of standing
B) rule that the agency followed proper procedures in issuing the rule
C) rule that the agency did not follow proper procedures because it is a substantive rule
D) refuse to the hear the case because there is no actual controversy
E) rule in favor of Elroy because the agency violated the Privacy Act

Correct Answer:

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