Administrative law complete_show3

West’s Instructional Aids Series

West’s Instructional Aid Series

ADMINISTRATIVE LAW RESEARCH

• Introduction: The Role of Agencies

• Federal Register

• Code of Federal Regulations (CFR)

• Federal Administrative (Agency) Decisions

CONTENTS

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• Legislative

• Judicial

• Executive– President

– Cabinet– Administrative Agencies

• are established by legislatures, agencies and are usually organized under the executive branch of government, often associated with a Cabinet position

• conduct legislative, executive, and judicial types of activities• exist on both federal and state levels (We will use the federal

system as the paradigm for state agencies.)

INTRODUCTION – THREE SOURCES OF LAW

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• Environmental Protection Agency

• Department of Transportation

• Federal Reserve Board

• Department of Agriculture

• United States Postal Service

• Department of Veterans’ Affairs

• Federal Aviation Administration• Because of the scope of Congressional delegation of

authority, each agency is unique in its structure, its personnel, and the nature of its regulations.

Unless talking about a specific agency, administrative agencies’ regulations and decisions must be discussed in broad generalizations.

EXAMPLES OF EXECUTIVE BRANCH AGENCIES

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• There are also agencies that are created by Congress as part of the executive branch but are not under the direct control of the president.

• Many of these are independent regulatory commissions.

• The president appoints, but cannot remove commissioners except for causes specified under the enabling statute.

• These agencies are often called the “headless fourth branch” of government.

INDEPENDENT ADMINISTRATIVE AGENCIES – THE FOURTH BRANCH?

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• Examples of regulatory commissions are the:– Civil Aeronautics Board– Equal Employment Opportunity Commission– Federal Trade Commission– National Labor Relations Board– Nuclear Regulatory Commission – Securities and Exchange Commission– Federal Energy Regulatory Commission– Federal Deposit Insurance Corporation– Federal Communications Commission

INDEPENDENT ADMINISTRATIVE AGENCIES – THE FOURTH BRANCH?

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• Board: National Labor Relations Board

• Commission: Federal Communications Commission

• Corporation: Federal Deposit Insurance Corporation

• Authority: Tennessee Valley Authority

• Department: Department of Transportation

• Administration: Social Security Administration

• Agency: Environmental Protection Agency

ADMINISTRATIVE AGENCIES MAY HAVE SEVERAL DIFFERENT NAMES

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• Legislative: Granted rulemaking authority:– Congress delegates authority to promulgate regulations to

administrative agencies• Enact enabling statutes• Establish the scope of agency authority

– Presidential Executive Order may also delegate authority to promulgate regulations to administrative agencies.

• Judicial: Congress may also grant power to hear and settle disputes arising from the regulation or the enabling statute.

• Executive: Congress may also grant power to investigate and prosecute violators of regulations.

ROLE OF ADMINISTRATIVE AGENCIES

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• The Securities and Exchange Commission is an example of an agency with powers similar to those of all three branches of government.– Legislative: promulgates regulations governing what

information must be given to investors.

– Judicial: conducts hearings to determine guilt and mete out punishment to violators of these regulations.

– Executive: enforces these regulations by prosecuting violators by disciplinary actions and stop orders.


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• Outcomes of agency actions include:– Rules or regulations (the two words are used

interchangeably), which have the same effect as statutes– Licenses, which include permits, certificates, other types

of permission– Advisory opinions, which are authoritative interpretations

of statutes and regulation but are not binding– Orders, which are the final disposition of any agency

action, other than rulemaking– Decisions, which adjudicate controversies arising out of

the interpretation of statutes or regulations; they are issued in the same manner as court decisions


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COMPARISON OF STATUTES AND REGULATIONS ROLES

STATUTES• Passed by Congress

• Provide for broad social and economic goals and legal requirements

• Get their power from the Constitution

• Reviewed by courts for constitutionality

• Representative democracy- Congress acts to represent the will of the people

REGULATIONS• Issued by agencies

• Get their power from Congress

• Prescribe specific legal requirements to meet congressional goals

• Reviewed by courts to determine constitutionality, limits of delegated authority, and whether they are arbitrary and capricious

• Participatory democracy – agencies must seek and consider public comment

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• The initiative behind promulgation of a new regulation or a change in a regulation can originate from many sources, including:– legislation that delegates authority– congressional hearings and reports– court orders – Executive Orders and Office of Management and Budget

Circulars– agency acting on its own initiative– emergency situations, technological developments, etc.– political pressures– Federal Advisory Committee recommendations– petitions and informal requests from affected parties

PROCESS OF PROMULGATION OF REGULATIONS

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• Regulation is proposed

• Office of Management and Budget reviews under Executive Order 12866

• Proposed rule is published in the Federal Register

• Public comment is invited

• Office of Management and Budget re-reviews regulation

• Final regulation published in the Federal Register

RULEMAKING PROCESS

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• Final regulation published in the Federal Register– Responds to comment– Amends Code of Federal Regulations– Sets effective date

• 30-day minimum for most regulations• 60-day minimum for major regulations• No minimum for good cause• Agency may delay or withdraw regulation before it becomes effective

• Agency submits regulation to Congress and Government Accounting Office, which can nullify the regulation

• Regulation is placed in Code of Federal Regulations (CFR)

RULEMAKING PROCESS

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PublicLaw

(EnablingStatute)

FederalRegister

ProposedRegulation

FederalRegister

Final Regulation

Code ofFederal

Regulations

Congress

Agency

CongressionalOversight

JudicialReview

Delegated Authority

Public Comment

President

AgencyAgency

Executive Order Delegated Authority

RULEMAKING PROCESS

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CONTENTS

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• Federal legislation in the 1930s began addressing numerous economic and social problems.

• Federal agencies were created to formulate the regulations that were to implement congressional intent.

• The public needed notice of the regulations that would help govern their lives as these new regulations went into effect.

• Courts began to rule that these “secret laws” were a violation of right of due process under the Constitution.

• A centralized filing and publication system was needed.

BACKGROUND

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• The Federal Register Act was enacted July 26, 1935.

• The Federal Register Act is codified in Title 44, Chapter 15, of the United States Code Annotated®(USCA®).

• It provides for a daily Federal Register to publish executive agency regulations and notices and presidential documents.

• The act was amended in 1937 to create Code of Federal Regulations, which arranges the regulations by government agency.

THE FEDERAL REGISTER ACT

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• Publication in the Federal Register:– Provides official notice of a regulation’s existence,

contents, and legal effect (constructive notice)

– Establishes the Federal Register text as true copy of original signed document

– Specifies the legal authority of the agency

– Gives regulations evidentiary status so they are admissible in court

– Shows how and why the Code of Federal Regulations will be amended

FEDERAL REGISTER

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• The Administrative Procedure Act (APA) was enacted June 11, 1946.

• The APA is codified in Title 5 of the USCA, sections 551, et seq.

• The APA provides that due process and public participation requirements must be met in the promulgation of a new regulation as published in the Federal Register.

THE ADMINSTRATIVE PROCEDURE ACT

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• Due process and public participation requirements– Must give notice of proposed rule

– Must take public comments and respond in final rule

– Regulations cannot be enforced if not published in the Federal Register

– Regulations cannot be effective until 30 days after publication

– Must publish statements of the organization and procedure for whom to contact for comment in the agency

– Must state the legal basis and purpose of the regulation

THE ADMINSTRATIVE PROCEDURE ACT

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• Published every week-day, except on federal holidays

• All daily issues from a year constitute a single volume with consecutive pagination throughout the year

• A single issue contains about 300 pages

• Annual volumes of the Federal Register can exceed 60,000 pages

• Contents are required to be judicially noticed by 44 USCA 1507

FEDERAL REGISTER

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• Table of Contents

• CFR Parts Affected section

• Presidential Proclamations, Executive Orders, Reorganization Plans, and Administrative Orders

• Agency Final Rules, Proposed Rules and Notices.

• Sunshine Act Meeting notices

• Unified Agenda of Federal Regulations

• Reader Aids

FEDERAL REGISTER – IN EACH ISSUE

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• Presidential documents (Executive Orders, proclamations, and other documents)

• Rules and regulations (having legal effect)

• Proposed rules and regulations (text as well as regulatory agendas and notices of hearings)

• Notices (announcements of application deadlines or license revocations)

• Notices of Sunshine Act meetings

FEDERAL REGISTER – ORDER OF MATERIAL IN EACH ISSUE

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• Executive Orders must be published in the Federal Register– Direct agencies to manage operations– Numbered consecutively– Reprinted annually in 3 CFR but not codified

• Proclamations must be published in the Federal Register– Ceremonial proclamations that recognize special occasions – Substantive proclamations that relate to international trade,

export controls, tariffs, or reservation of federal lands– Reprinted annually in 3 CFR but not codified

• Administrative Orders and miscellaneous documents’ publication is optional

FEDERAL REGISTER – PRESIDENTIAL DOCUMENTS

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Executive Orders can be retrieved using the Find command. For example, access the Find service and enter EO 12866

Note that this Executive Order is included in the Federal Register (FR) database on Westlaw®. Executive Orders are also included in the Presidential Documents (PRES) database on Westlaw.

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FEDERAL REGISTER – PRESIDENTIAL DOCUMENTS ON WESTLAW

• The Table of Contents is arranged by agency name.

• The Table of Contents lists regulations (rules), proposed regulations (rules), and notices.

Flightcrew compartment

Federal Aviation Administration

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FEDERAL REGISTER – TABLE OF CONTENTS

• CFR Parts Affected in This Issue lists document in numerical order by CFR title and part

• Appears at the front of eachprint issue after the Tableof Contents

• Indicates whether documentsaffecting CFR parts areregulations or proposedregulations

• Cites the page numberswhere relevant documentsbegin

p.2112

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FEDERAL REGISTER – CFR PARTS AFFECTED IN THIS ISSUE

• The Final Rule (regulation) as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CRR 121.313

USCA Authority

Action & Summary

121.313(f)

p. 2112

14 CFR Part 121

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• Reader Aids section is located at the back of each daily Federal Register print issue.

• Contains information on recentregulatory activity and new laws

• Includes– CFR parts affected during the

current month– Reminders of regulations going into

effect on the current day andcomments due next week

– List of recently enacted public laws– CFR customer service numbers and

addresses

14 CFR 121

Reader Aids

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FEDERAL REGISTER – READER AIDS

• Federal Register Index– issued quarterly

– annual cumulative issue

• Central Index System (CIS) Federal Register Index

• Use the Federal Register indexes to find regulations that were issued after the date of the most recent volume of the Code of Federal Regulations for that agency

• Daily Federal Register Index to CFR Parts Affected during the current month

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FEDERAL REGISTER – THE INDEX AND PREVIOUS FEDERAL REGISTERS

Pages

• This is the cumulative annualFederal Register Index for 2001

• There were 67,702 pagespublished in daily Federal Registerissues in 2001.

• There are many Federal AviationAgency actions listed in thisindex, but the final regulationpublished on January 15, 2002,concerning flightcrew compartmentdoors will be in the 2002 issuesof the index.

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FEDERAL REGISTER – THE PRINT INDEX

• LSA (List of CFR Sections Affected)– Printed each month

– Keyed to CFR parts and sections

– Online at www.access.gpo.gov/nara/lsa/aboutlsa.html

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FEDERAL REGISTER – THE INDEX AND PREVIOUS FEDERAL REGISTERS

http://www.access.gpo.gov/nara/lsa/aboutlsa.html

Final Rule as published in the Federal Register on January 15, 2002, and amending, among other regulations, 14 CFR 121.313.

USCA Authority

Action and Summary

121.313(f)

34

• Use a Find request when you know issue and page number of a Federal Register document

• Westlaw searches in the FR database– Natural Language searching works well.

– Use Terms and Connectors field searches when you need to retrieve a specific document(s) or have specific criteria as to agency and nature of document.

• Federal Register issues go online the same day that they appear in print.

• Westlaw coverage in FR begins with July, 1980.

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FEDERAL REGISTER – USING THE “FR” DATABASE ON WESTLAW

To retrieve a Federal Register document with a known citation, access the Find service and enter 67 FR 2112-01.

Citation

Find

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FEDERAL REGISTER

This is the same rule asfound usingthe print index.

The best portion of that document

The first page of the firstdocument retrieved

Best

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• Database: FR (Federal Register)

• Search: security to strengthen flight-crew doors in airplanes

FINDING DOCUMENTS WITH A NATURAL LANGUAGE SEARCH ON WESTLAW

Title & Part Nos.

Section No.

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• Database: FR

• Search: PR(14 & “part 121”) & flight-crew /s door /p 121.313

FINDING DOCUMENTS WITH A TERMS & CONNECTORS SEARCH ON WESTLAW

• To find recently proposed regulations (rule) by an agency

• Search: pr(“aviation administration” & proposed /4 rule) & flight-crew /s door & da(aft 2002)

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RECENTLY PROPOSED REGULATIONS

• The Unified Agenda compiles agendas prepared semi-annually by Cabinet departments, other executive agencies and independent agencies. Each agenda includes regulations to be reviewed in the upcoming year and regulatory activity completed in the past year.

• To retrieve a Unified Agenda from a specific agency:– pr(“unified agenda” & “aviation administration”)

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TIPS FOR SEARCHING THE FR DATABASE ON WESTLAW

• Useful Fields– The prelim field (PR) contains the type of document, the

issuing agency and any sub-agency, docket numbers, affected portions of the CFR, and other preliminary materials

– The caption field (CA) contains the subject matter of the document

– The summary field (SU) contains a summary of the document, if available

– The image field (IM) is a browsable field that shows which images are available for offline printing

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TIPS FOR SEARCHING THE FR DATABASE ON WESTLAW

• The current date and the last three dates of the Table of Contents appears automatically when you access the Federal Register Table of Contents (FR-TOC) database on Westlaw.

• You can perform a word search for other dates’ Table of Contents by editing the search.– Database: FR-TOC (Federal Register Table of Contents)

– Query: da(1/15/2002) & aviation

– Documents are arranged as they are in the print Table of Contents.

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TABLE OF CONTENTS ON WESTLAW

• Database: FR• Query: pr(14 /5 part /5 121)

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PARTS AFECTED ON WESTLAW





CONTENTS

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• The regulations first published in the Federal Register on a daily basis are then codified in the Code of Federal Regulations.

• The regulations that are published chronologically in the Federal Register are codified and arranged by title, then by chapter (one agency’s regulations) and finally by subject in the CFR.

• The CFR is divided into 50 titles, just like the USCA– Some titles covering the same subjects are numbered the

same in the CFR and in the USCA; others are not.

• Each title is divided into chapters, subchapters, parts, and sections.

• A regulation is cited by title, part, and section, e.g., 14 CFR 121.313 (Title 14, Part 121, Section 313).

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CODE OF FEDERAL REGULATIONS (CFR)

• The soft-cover volumes of the CFR are issued each year in sets on a staggered, quarterly basis:– Titles 1– 6 are current through January 1– Titles 17 – 27 are current through April 1– Titles 29 – 41 are current through July 1– Titles 42 – 50 are current through October 1

• Each new set contains the text of all regulations in force as of the current through date. New regulations are merged with, and revoked regulations are deleted from, the previous set of regulations.

• The color of each set of volumes is changed every year; a current full set may contain different colored volumes, depending on the time of the year.

• Title 3, which contains Presidential Proclamations and Executive Orders, is always white.

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CODE OF FEDERAL REGULATIONS (CFR)

• Table of Contents listing all material within the book: titles, subtitles, chapters, subchapter(s), parts, and sections – Subtitles are referenced to page numbers

• Material Approved for Incorporation by Reference ,which is regulatory material not published in the Federal Register or CFR– Has force of law as if it were published in the Federal Register

and CFR– Mostly technical standards, state law, and regulations

• Table of CFR Titles and Chapters• Redesignation Tables to help trace new location of parts

and sections of a regulation• List of CFR Sections Affected in the volume

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RESEARCH TOOLS IN THE CFR

• At the beginning of each print issue• Documents are listed by agencies in alphabetical

order– Cross-referenced from Cabinet departments to subordinate

agencies– Each agency document is arranged by category

• Rules• Proposed Rules• Notices

• Presidential documents are arranged as follows:– Executive Orders– Proclamations– Determinations/Memoranda

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CFR TABLE OF CONTENTS

• CFR titles are broken down by Chapter, Subchapter, and Part.

• Immediately preceding each part is a Table of Contents for the individual regulations contained within that part.

121.313

Table of Contents

Title 14Chapter 1Parts 60-139

Subchapter D

Part 121

49

• Material Approved for Incorporation by Reference is regulatory material not published in the Federal Register or CFR– Has force of law as if were

published in the Federal Register and CFR

– Mostly technical standards, state law, and regulations

Title 14Parts 60-139

50

CFR – MATERIAL APPROVED FOR INCORPORATION BY REFERENCE

• Table of CFR Titles and Chapters

• Redesignation Tables to help trace new location of parts and sections of a regulation

Table of CFR Titles and Chapters

Redesignation Table

Title 14Parts 60-139

51

• List of CFR Sections Affected in each volume indicates the type of change that was made.

52

CFR – LIST OF CFR AFFECTED SECTIONS

• CFR Index and Finding Aids is single volume– Revised annually

– Index with subject entries and agency names in one listing• Since 1980, a thesaurus has assured that all

agencies use the same terminology for subject headings

– Parallel Table of Authorities and Rules

– List of Agency-Prepared Indexes Appearing in Individual CFR Volumes

53

CFR – ACCESSING SECTIONS

• Subject entries and agency names are in one listing

• Access by subject or agency

• References CFR title and part numbers, not individual regulations

Index and FindingAids Volume

Index

14 CFR 121

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CFR – ACCESSING SECTIONS WITH THE INDEX AND FINDING AIDS

• The List of Agency-Prepared Indexes provides information on how to locate agency indexes in various CFR volumes.

• The Parallel Table of Authorities shows where regulations promulgated under statute or Executive Order have been placed in the CFR.

List of Agency-PreparedIndexes Appearing inIndividual CFR Volumes

USCA authorities

55


• The list of CFR Titles, Chapters, Subchapters, and Parts provides an outline of the CFR organization.

List of CFR Titles, Chapters, Subchapters, and Parts

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• The Alphabetical List of Agencies Appearing in the CFR is another means of accessing the regulations.

Alphabetical List of AgenciesAppearing in the CFR

57


• LSA: List of CFR Sections Affected– Issued monthly– Indicates final and proposed

changes made since the lastpublication of the CFR set

• CFR Parts Affected– In each volume of the Code of

Federal Regulations– Incorporated in the cumulative

list in the Reader Aids section

• CFR Parts Affected in this Issue – In each daily issue of the Federal

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CFR – UPDATING REGULATIONS IN PRINT

• The CFR database includes all 50 titles.

• The database incorporates all but the most recent changes to the Code of Federal Regulations.

• There is an approximately two-week lag between publication of the Final Rule in the Federal Register and incorporation into the CFR database.

• Historical CFR databases date back to 1984.– Database identifiers are CFR01, CFR00, CFR99, etc.

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THE CFR ON WESTLAW

• If you know the citation of a CFR section– Access the Find service

– Enter: 14 CFR 121.313

60

CFR SEARCHES ON WESTLAW

• Natural Language:– Database: CFR– Search: security to strengthen flight-crew doors in airplanes

Best

Best

61

CFR SEARCHES ON WESTLAW

• Useful fields – The prelim field (PR) contains the CFR title and other

headings that precede the caption

– The caption field (CA) contains the CFR section number and heading

– The notes field (NO) contains editorial and effective date notes

– The credit field (CR) contains USCA authority and Federal Register source notes

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THE CFR ON WESTLAW

• Terms and Connector searches in CFR– To retrieve all documents within a specific title and part

• pr(“title 14” & “part 121”)

– To retrieve all documents discussing a particular topic within a particular title• pr(“title 14”) & flight-crew pilot /s door• pr(“aviation administration”) & flight-crew /s door

– To retrieve all documents discussing a particular regulation• pr(“title 14”) & 121.313• pr(“title 14”) & 121.313(f)

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THE CFR ON WESTLAW

• When viewing a regulation, click the Table of Contents link on the Links for tab in the left frame.

• The Table of Contents opens to the regulation you are viewing in the right frame.

• You can expand or collapse any division in the Table of Contents.

Links for121.583

121.583

TOC

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THE CFR TABLE OF CONTENTS ON WESTLAW

• Previous and Next Section links allow you to move from regulation to regulation as if paging through the print regulations.

NextPrevious

65

READING THE CFR

• KeyCite History for the CFR – Shows recent changes to a regulation– Shows history of the regulation

• KeyCite Citing References lists the cases and secondary sources that have cited a CFR section.

HistoryCiting References

66

KEYCITE® RESULTS FOR THE CFR





CONTENTS

67

• Decisions of agencies can broadly be classified asAdvisory opinions

– not binding– authoritative interpretations of statutes and regulations that

indicate agency policy and expectations

Informal Adjudications– governed by special statutory requirements or agency’s own

regulations– due process concerns apply– discretionary– generally not reviewable by a court– conducted by presiding officers and not by independent

Administrative Law Judges (ALJ)

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DECISIONS OF ADMINISTRATIVE BODIES

• Formal Adjudications: Quasi-judicial decisions – adjudicate disputes arising out of the interpretation or

violation of enabling statutes or regulations– reported much as case law is – usually delivered in written format– the role of the court is often performed by an independent

Administrative Law Judge (ALJ) or agency commissioner(s).

– proceedings are usually fact-finding inquiries into how regulations apply to a particular situation

– agencies are not strictly bound by prior decisions but the decisions have precedential value so attorneys who practice before an agency can use the decisions as an important primary source of the law.

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FORMAL ADMINISTRATIVE DECISIONS

• Publication of Decisions

– Official versions are available in most law and university libraries that are official depositories of the U.S. Government Printing Office

– Usually issued first as a slip opinion or advance sheet

– Many agencies eventually bind their decisions in permanently numbered volumes

– Some agencies publish only in pamphlet format, or only on microfiche

– In any format, most decisions have some sort of finding aids, such as an index, table of cases, or tables of statutes or regulations cited

70


• Official decisions of the Federal Power Commission and the Federal Trade Commission published by the United States Printing Office.

71

• Publication of decisions– Unofficial versions are reproduced in looseleaf services,

sometimes with sequentially numbered bound volumes.– Unofficial versions tend to be far more current and better

indexed than the official decisions.– Unofficial versions are also placed on Westlaw. Westlaw

contains the decisions of many federal and state agencies, including:

• Federal Communications Commission, Federal Labor and Employment Commission, Equal Employment Opportunity Commission, Internal Revenue Service, Interstate Commerce Commission, National Mediation Board, Federal Trade Commission, Federal Maritime Commission, Department of the Interior, Attorney General, and Department of Agriculture.

72


• Unofficial decisions of the Federal Energy Regulatory Commission as published by CCH

73


• Each agency has its own method of indexing decisions so few generalizations can be made.– Official versions are usually more poorly indexed and slower to

be indexed than unofficial versions– Individual volumes may have finding aids, such as a table of

contents, a table of cases reported, a list of opinions/decisions/orders, an index by type of action, a topical index, or an index-digest.

– Some sets of decisions may have finding aids, such as an index or digest for the set.

• Secondary sources, such as the American Law Reports or law review articles, often discuss agency decisions in the context of discussing a court case or a statute.

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FINDING AN AGENCY DECISION

• Westlaw is probably the fastest way for an attorney who does not regularly practice before a particular agency to find a decision or decisions that discuss a particular topic.

• Database: TP-ALL (Texts, Periodicals and Law Reviews)

• Query: f.c.c. f.c.c.r. /10 decision /p merger re-organization /p radio television

Many of the 68 documents retrieved with the above searchcite to decisions of theFederal CommunicationsCommission

75

FINDING AN AGENCY DECISION ON WESTLAW

• KeyCite lists administrative decisions that cite to court cases– Click the Citing References link.

– Click the Limit KeyCite Display button at bottom of screen.

– Clear All, then select Administrative Decisions

– Click Apply to see the 257 decisions that cite to this case.

Administrative Decisions

Apply

76

USING KEYCITE WITH AN AGENCY DECISION ON WESTLAW

• When you know the document’s citation, access the Find service and type– 16 F.C.C.R. 16087 – 32 FCC 2d 360

• When you know the parties name and the database identifier– Database: FCOM-FCC – Search: ti(nynex & “new england”)

• When you know the fact pattern, specific proper names, or unique terms– Database: FCOM-FCC– “captain kangaroo” /p child /s programming schedul!

• When you want to retrieve documents that discuss an issue– Database: FCOM-FCC Search in Natural Language: misleading (deceptive false) advertising vitamins

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FINDING AN AGENCY DECISION ON WESTLAW

• Precedent might not have as strong a role in updating an administrative decision as it would in case law but you still need to know: – Whether judicial review has overturned an agency decision

– Whether later agency decisions have disapproved of the decision

– the agency’s position on a particular issue

Administrative Decisions

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UPDATING AN AGENCY DECISION

• It is possible to retrieve KeyCite History results for the decisions of some agencies. See the above decision of the Federal Communications Commission. It was vacated, in part.

Vacated in Part

Decision in Question

History

79

UPDATING AN AGENCY DECISION

• Board of Immigration Appeals

• Equal Employment Opportunity Commission

• Environmental Protection Agency

• Federal Commerce Commission

• Federal Communications Commission

• Federal Energy Regulatory Commission

• Federal Government Contracts Board

• Federal Securities and Exchange Commission

• Internal Revenue Service (rulings and memoranda)

• National Labor Relations Board

• Office of Comptroller General

• Patent Office• Public Utility Reports• Tax Court

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SAMPLE AGENCIES WHOSE DECISIONS CAN BE UPDATED WITH KEYCITE®

• Access a database containing case law, administrative law, analytical materials, or any other type of material that might contain a discussion of the administrative decision.

• Devise a Terms and Connectors search that will include some of the essential items in the citation of the decision within a few words or the same sentence of the party or agency name.– Database: FENV-EPA

– Query: “asbestos removal” /s e.a.d.

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UPDATING AN AGENCY DECISION USING WESTLAW AS A CITATOR

• Once an Administrative Law Judge has issued a decision, that decision can usually be appealed to a higher entity within the agency.

• Those appealing an agency decision must usually exhaust agency remedies before moving the action to a federal court.

• The final agency decision can usually be appealed – to a federal court of appeals if Congress has provided an

appeals process – to the federal district court if no provision for appeal has been

specified

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JUDICIAL REVIEW OF AGENCY DECISIONS

• The appeal of these decisions can be found in the Supreme Court Reporter®, the Federal Reporter®, and the Federal Supplement® in print and in the corresponding databases on Westlaw: – Supreme Court cases are in the SCT database– Federal Reporter cases are in the CTA database– Federal Supplement cases are in the DCT database

• Summaries of these cases can be found in West’s Federal Practice Digests®, and the United States Supreme Court Digest® – SCT-HN, CTA-HN, and DCT-HN are the corresponding

databases on Westlaw.

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JUDICIAL REVIEW OF AGENCY DECISIONS

• Constitutionality

• Agency acted outside the scope of delegated authority

• Procedural due process violations

• Arbitrary and capricious decision

• Abuse of agency discretion

• Separation of powers

• When original jurisdiction can be granted to the United States District Court

• Interpretation of the language of the enabling statute or regulation

84

JUDICIAL REVIEW OF AGENCY DECISIONS – COMMON ISSUES

• When an agency is the plaintiff (See 28 USCA 1345) • When there is a federal question (See 28 USCA 1331)• When there is a mandamus action to compel an agency

to perform a duty owed to plaintiff• When there is a specific statute authorizing original

jurisdiction in the federal district court• Some examples of matters of original jurisdiction for the

district court– What constitutes an interpretive rule– Agency compliance with Sunshine Act– Exhaustion of remedies under Privacy Act– What constitutes agency “action”, “order,” decision,” final order,”

or “final decision” within meaning of statute authorizing judicial review

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WHEN DISTRICT COURT HAS ORIGINAL JURISDICTION OVER AGENCY DECISION

Judicial Review• To Court of Appeals if statute provides for appeal• To District Court if there is no provision for appeal

Decision byPresiding Officer,Commissioner, or

ALJ

Appeal to higher entitywithin the Agency:

Exhaustion of AgencyRemedies

Original Jurisdictionby District Court• By statute• Agency is plaintiff• Federal question• Mandamus action

AGENCY ACTIONS

COURT ACTIONSCONTROVERSY

86

• If you are unfamiliar with administrative law research, call the West Reference Attorneys. They are:

– available 24 hours a day, seven days a week– available to help you at no charge– licensed attorneys– fully experienced Westlaw users– a knowledgeable and friendly research resource

1-800-850-WEST1-800-850-9378

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CONCLUSION

Career

Administrative law complete_show3