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					West’s Instructional Aids Series




  ADMINISTRATIVE LAW RESEARCH
  West’s Instructional Aid Series
CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions




                                              2
INTRODUCTION – THREE SOURCES OF
LAW
• 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.)



                                                                          3
EXAMPLES OF EXECUTIVE BRANCH
AGENCIES
• 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.
                                                            4
INDEPENDENT ADMINISTRATIVE
AGENCIES – THE FOURTH BRANCH?
• 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.


                                                          5
INDEPENDENT ADMINISTRATIVE
AGENCIES – THE FOURTH BRANCH?
• 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




                                                6
ADMINISTRATIVE AGENCIES MAY HAVE
SEVERAL DIFFERENT NAMES
• 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




                                                       7
ROLE OF ADMINISTRATIVE AGENCIES
• 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.


                                                                  8
ROLE OF ADMINISTRATIVE AGENCIES
• 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.




                                                              9
ROLE OF ADMINISTRATIVE AGENCIES
• 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




                                                                 10
    COMPARISON OF STATUTES AND
    REGULATIONS ROLES
         STATUTES                         REGULATIONS
• Passed by Congress             • Issued by agencies
• Provide for broad social and   • Get their power from Congress
  economic goals and legal       • Prescribe specific legal
  requirements                     requirements to meet
• Get their power from the         congressional goals
  Constitution                   • Reviewed by courts to determine
                                   constitutionality, limits of delegated
• Reviewed by courts for           authority, and whether they are
  constitutionality                arbitrary and capricious
• Representative democracy-      • Participatory democracy –
  Congress acts to represent       agencies must seek and consider
  the will of the people           public comment

                                                                            11
PROCESS OF PROMULGATION OF
REGULATIONS
• 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

                                                               12
RULEMAKING PROCESS
• 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



                                                       13
RULEMAKING PROCESS
• 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)

                                                                          14
    RULEMAKING PROCESS
                                  President



                             Executive Order       Congressional        Judicial
                            Delegated Authority      Oversight          Review
Congress


                                    Agency          Agency           Agency


                                   Federal          Federal
  Public
                                   Register         Register        Code of
   Law      Delegated Authority                                     Federal
(Enabling
                                   Proposed          Final         Regulations
 Statute)
                                   Regulation      Regulation


                                                  Public Comment                   15
CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions




                                              16
BACKGROUND
• 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.

                                                              17
THE FEDERAL REGISTER ACT
• 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.


                                                        18
FEDERAL REGISTER
• 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




                                                             19
THE ADMINSTRATIVE PROCEDURE ACT
• 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.




                                                         20
THE ADMINSTRATIVE PROCEDURE ACT
• 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




                                                                      21
FEDERAL REGISTER
• 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

                                              22
FEDERAL REGISTER – IN EACH ISSUE
• 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


                                                    23
FEDERAL REGISTER – ORDER OF
MATERIAL IN EACH ISSUE
• 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



                                                       24
FEDERAL REGISTER – PRESIDENTIAL
DOCUMENTS
• 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


                                                                    25
  FEDERAL REGISTER – PRESIDENTIAL
  DOCUMENTS ON WESTLAW




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.

                                                                          26
FEDERAL REGISTER – TABLE OF
CONTENTS
• The Table of Contents is
  arranged by agency
  name.
• The Table of Contents
  lists regulations (rules),
  proposed regulations
  (rules), and notices.
                     Federal Aviation Administration

                            Flightcrew compartment




                                                       27
FEDERAL REGISTER – CFR PARTS
AFFECTED IN THIS ISSUE
• CFR Parts Affected in This Issue lists document in
  numerical order by CFR title and part
• Appears at the front of each
  print issue after the Table
  of Contents
• Indicates whether documents             p.2112
  affecting CFR parts are
  regulations or proposed
  regulations
• Cites the page numbers
  where relevant documents
  begin

                                                       28
p. 2112
             14 CFR Part 121

Action &
Summary



                                         121.313(f)
                    USCA Authority




       • The Final Rule (regulation) as published in the
         Federal Register on January 15, 2002, and amending,
         among other regulations, 14 CRR 121.313
                                                               29
FEDERAL REGISTER – READER AIDS
• Reader Aids section is located at
  the back of each daily Federal
                                           Reader Aids
  Register print issue.
• Contains information on recent
  regulatory activity and new laws
• Includes                                 14 CFR 121

  – CFR parts affected during the
    current month
  – Reminders of regulations going into
    effect on the current day and
    comments due next week
  – List of recently enacted public laws
  – CFR customer service numbers and
    addresses
                                                         30
FEDERAL REGISTER – THE INDEX AND
PREVIOUS FEDERAL REGISTERS
• 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
                                                   31
    FEDERAL REGISTER – THE PRINT INDEX
• This is the cumulative annual
  Federal Register Index for 2001        Pages

• There were 67,702 pages
  published in daily Federal Register
  issues in 2001.
• There are many Federal Aviation
  Agency actions listed in this
  index, but the final regulation
  published on January 15, 2002,
  concerning flightcrew compartment
  doors will be in the 2002 issues
  of the index.

                                             32
FEDERAL REGISTER – THE INDEX AND
PREVIOUS FEDERAL REGISTERS
• 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




                                                          33
Action and
 Summary




                   USCA Authority
                                            121.313(f)




             Final Rule as published in the Federal Register on
             January 15, 2002, and amending, among other
             regulations, 14 CFR 121.313.
                                                                  34
FEDERAL REGISTER – USING THE “FR”
DATABASE ON WESTLAW
• 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.


                                                                      35
   FEDERAL REGISTER
                            Citation
               Find




To retrieve a Federal Register document with a known citation,
access the Find service and enter 67 FR 2112-01.
                                                            36
       FINDING DOCUMENTS WITH A NATURAL
       LANGUAGE SEARCH ON WESTLAW
       • Database: FR (Federal Register)
       • Search: security to strengthen flight-crew doors in airplanes



                                           The first page of the first
                                           document retrieved
This is the
same rule as
found using
the print index.



        The best portion of
                                Best
        that document

                                                                         37
FINDING DOCUMENTS WITH A TERMS &
CONNECTORS SEARCH ON WESTLAW
• Database: FR
• Search: PR(14 & “part 121”) & flight-crew /s door /p 121.313




        Title & Part Nos.




                                                   Section No.




                                                                 38
RECENTLY PROPOSED REGULATIONS
• To find recently proposed regulations (rule) by an agency
• Search: pr(“aviation administration” & proposed /4 rule) &
  flight-crew /s door & da(aft 2002)




                                                               39
TIPS FOR SEARCHING THE FR DATABASE
ON WESTLAW
• 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”)




                                                             40
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




                                                                    41
TABLE OF CONTENTS 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.



                                                               42
PARTS AFECTED ON WESTLAW




       • Database: FR
       • Query: pr(14 /5 part /5 121)   43
CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions




                                              44
CODE OF FEDERAL REGULATIONS (CFR)
• 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).
                                                              45
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.
                                                                  46
RESEARCH TOOLS IN THE 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
                                                                       47
CFR TABLE OF CONTENTS
• 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
                                                               48
                                Table of Contents




Title 14
Chapter 1
Parts 60-139
                               Subchapter D




                                          Part 121




                                                     121.313




      • 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.
                                                                     49
CFR – MATERIAL APPROVED FOR
INCORPORATION BY REFERENCE
• Material Approved for
  Incorporation by Reference is
  regulatory material not
  published in the Federal
  Register or CFR
  – Has force of law as if were   Title 14
    published in the Federal      Parts 60-139
    Register and CFR
  – Mostly technical standards,
    state law, and regulations




                                            50
                                                    Title 14
                                                    Parts 60-139




                                   Redesignation Table



Table of CFR Titles and Chapters
            • Table of CFR Titles and Chapters
            • Redesignation Tables to help trace new
              location of parts and sections of a
              regulation                                           51
CFR – LIST OF CFR AFFECTED SECTIONS
• List of CFR Sections
  Affected in each
  volume indicates the
  type of change that
  was made.




                                      52
CFR – ACCESSING 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 WITH THE
    INDEX AND FINDING AIDS
    • Subject entries and agency
                                   Index
      names are in one listing
    • Access by subject or
      agency
    • References CFR title and
      part numbers, not
      individual regulations
Index and Finding
   Aids Volume
                                           14 CFR 121



                                                   54
     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         List of Agency-Prepared   USCA authorities
  where regulations         Indexes Appearing in
  promulgated under         Individual CFR Volumes
  statute or Executive
  Order have been
  placed in the CFR.

                                                                         55
 CFR – ACCESSING SECTIONS WITH THE
 INDEX AND FINDING AIDS
• The list of CFR
  Titles, Chapters,
  Subchapters,
  and Parts
  provides an
  outline of the
  CFR                 List of CFR Titles, Chapters,
  organization.       Subchapters, and Parts




                                                      56
CFR – ACCESSING SECTIONS WITH THE
INDEX AND FINDING AIDS
• The Alphabetical List
  of Agencies
  Appearing in the
  CFR is another
  means of accessing
  the regulations.
                          Alphabetical List of Agencies
                             Appearing in the CFR




                                                          57
CFR – UPDATING REGULATIONS IN PRINT
• LSA: List of CFR Sections Affected
  – Issued monthly
  – Indicates final and proposed
    changes made since the last
    publication 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

                                          58
THE CFR ON WESTLAW
• 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.




                                                          59
 CFR SEARCHES 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
THE CFR 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




                                                                 62
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)




                                                                       63
            THE CFR TABLE OF CONTENTS ON
            WESTLAW
Links for
                      121.583


                                              121.583


               TOC




            • 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.
                                                                        64
READING THE CFR
• Previous and Next Section links allow you to move
  from regulation to regulation as if paging through the
  print regulations.
     Previous                                   Next




                                                           65
  KEYCITE® RESULTS FOR 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.



                      History
Citing References




                                                       66
CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions




                                              67
DECISIONS OF ADMINISTRATIVE BODIES
• Decisions of agencies can broadly be classified as
Advisory 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)


                                                                     68
FORMAL ADMINISTRATIVE DECISIONS
• 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.



                                                                 69
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
FORMAL ADMINISTRATIVE DECISIONS
• 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
FORMAL ADMINISTRATIVE DECISIONS




• Unofficial decisions of the Federal Energy Regulatory
  Commission as published by CCH
                                                          73
FINDING AN AGENCY DECISION
• 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.

                                                                       74
FINDING AN AGENCY DECISION ON
WESTLAW
• 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
  search
  cite to decisions of the
  Federal Communications
  Commission

                                                              75
Administrative Decisions

        USING KEYCITE WITH AN AGENCY
        DECISION ON WESTLAW

                                           Apply




  • 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.

                                                                      76
FINDING 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

                                                          77
Administrative Decisions



        UPDATING AN AGENCY DECISION
       • 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




                                                                         78
UPDATING AN AGENCY DECISION




             History


                        Decision in Question



                            Vacated in Part



• 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.
                                                                            79
SAMPLE AGENCIES WHOSE DECISIONS
CAN BE UPDATED WITH KEYCITE®
• Board of Immigration        • Federal Government
  Appeals                       Contracts Board
• Equal Employment            • Federal Securities and
                                Exchange Commission
  Opportunity Commission
                              • Internal Revenue Service
• Environmental Protection      (rulings and memoranda)
  Agency
                              • National Labor Relations
• Federal Commerce              Board
  Commission
                              • Office of Comptroller
• Federal Communications        General
  Commission                  • Patent Office
• Federal Energy Regulatory   • Public Utility Reports
  Commission
                              • Tax Court
                                                           80
UPDATING AN AGENCY DECISION USING
WESTLAW AS A CITATOR
• 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.



                                                            81
JUDICIAL REVIEW OF AGENCY DECISIONS
• 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



                                                                        82
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.


                                                        83
JUDICIAL REVIEW OF AGENCY DECISIONS
– COMMON ISSUES
• 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
WHEN DISTRICT COURT HAS ORIGINAL
JURISDICTION OVER AGENCY DECISION
• 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
                                                                        85
  CONTROVERSY             COURT ACTIONS


                          Original Jurisdiction
AGENCY ACTIONS            by District Court
                          • By statute
                          • Agency is plaintiff
    Decision by           • Federal question
  Presiding Officer,      • Mandamus action
  Commissioner, or
        ALJ
                          Judicial Review
                          • To Court of Appeals
Appeal to higher entity     if statute provides
 within the Agency:         for appeal
Exhaustion of Agency      • To District Court if
     Remedies               there is no provision
                            for appeal

                                                    86
CONCLUSION
• 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-WEST
                          1-800-850-9378




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