Transcript Administrative Law Research

West’s Instructional Aids Series
Administrative Law Research
Contents
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions
Introduction:
The Role of Agencies
Contents
Introduction
Three Sources of the 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.)
Introduction
• Examples of executive branch agencies are the
– 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.
Introduction
Independent Administrative Agencies:
The Fourth Branch of Government?
• 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.
Introduction
• 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
Introduction
An administrative agency may be called a
– 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
Introduction
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.
Introduction
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.
Introduction
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
Introduction
Comparison of the Roles of Statutes and Regulations
•
•
•
•
•
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
Introduction
The Process of Promulgating Regulations
(Rulemaking)
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
Introduction
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
Introduction
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)
Introduction
President
Executive
Order
Delegated
Authority
Congress
Agency
Federal
Public
Register
Law
(Enabling
Statute) Delegated Authority Proposed
Regulation
Congressional
Oversight
Judicial
Review
Agency
Federal
Register
Final
Regulation
Agency
Code of
Federal
Regulations
Public Comment
Federal Register
Contents
Federal Register
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.
Federal Register
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.
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
Federal Register
The Administrative 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.
Federal Register
The Administrative 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
Federal Register
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
Federal Register
In Each Issue of the Federal Register
• 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
Order of Material in Each Issue of the Federal
Register
• 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
Presidential Documents Published in the
Federal Register
• 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
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.
Federal Register
Table of Contents
Federal Aviation Administration
Flightcrew compartment
• The Table of Contents is arranged by agency name.
• The Table of Contents lists regulations (rules), proposed
regulations (rules), and notices.
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
p.2112
• Indicates whether documents
affecting CFR parts are
regulations or proposed
regulations
• Cites the page numbers
where relevant documents
begin
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
Federal Register
Reader Aids
• Reader Aids section is located at the back of each daily
Federal Register print issue.
• Contains information on recent
Reader Aids
regulatory activity and new laws
• Includes
– CFR parts affected during the
current month
14 CFR 121
– 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
Federal Register
Finding Documents in Past
Federal Register Issues;
Indexes
• 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
Federal Register
Print Index
• This is the cumulative annual
Federal Register Index for 2001
• 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.
Federal Aviation Administration
Pages
Federal Register
Finding Documents in Past
Federal Register Issues
LSA
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
121.313
Title 14
Federal Register
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.
Federal Register
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• Federal Register issues go online the same day that they
appear in print.
• Westlaw coverage in FR begins with July, 1980.
Federal Register
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citation, access the Find service and enter 67 fr 2112-01.
Find
Citation
Federal Register
Finding Documents with a Westlaw Natural Language
Search
Database: FR (Federal Register)
Search: security to strengthen flight-crew doors in airplanes
This is the
same rule as
found using
the print index.
The best portion of
that document
The first page of the first
document retrieved
Best
Federal Register
Terms and Connectors
Other ways to retrieve the same update to a CFR part
– Database: FR
– Terms & Connectors search: pr(14 & “part 121”) &
flight-crew /s door /p 121. 313
Section No.
Title & Part Nos.
Federal Register
To find recently proposed regulations (rule) by an agency
–Database: FR
–Search: pr(“aviation administration” & proposed /4 rule)
& flight-crew /s door & da(aft 2002)
Federal Register
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(FR) Database on Westlaw
• The Unified Agenda compiles agendas prepared semiannually by Cabinet departments, other executive agencies
and independent agencies. Each agenda includes
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– pr(“unified agenda” & “aviation administration”)
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Federal Register
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– 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.
Federal Register
Parts Affected on Westlaw
The preliminary field of each document in the FR database on
Westlaw references the CFR part(s) affected.
Database: FR
Query: pr(14 /5 part /5 121)
Code of Federal Regulations (CFR)
Contents
CFR
Code of Federal Regulations
• 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).
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.
CFR
Research Tools in Each Volume of 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
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and sections of a regulation
• List of CFR Sections Affected in the volume
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
CFR
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.
CFR
Title 14
Parts 60-139
Paragraph f
121.313
• Regulation 121.313
• Paragraph (f) discusses requirements for the door to the
flight-crew compartment.
CFR
Material Approved
for Incorporation
by Reference
Title 14
Parts 60-139
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
CFR
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
CFR
Title 14
Parts 60-139
List of CFR Sections Affected
List of CFR Sections Affected in each volume indicates
the type of change that was made.
CFR Index
Access to the CFR:
Index and Finding Aids
• 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
CFR Index
Index and Finding
Aids Volume
14 CFR 121
Index
• Subject entries and agency names are in one listing
• Access by subject or agency
• References CFR title and part numbers, not individual
regulations
CFR Index
Index and Finding
Aids Volume
List of Agency-Prepared
Indexes Appearing in
Individual CFR Volumes
USCA Authorities
• 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.
CFR Index
Index and Finding
Aids Volume
14 CFR 121
List of CFR Titles, Chapters,
Subchapters, and Parts
The list of CFR Titles, Chapters, Subchapters, and Parts
provides an outline of the CFR organization.
CFR Index
Index and Finding
Aids Volume
Alphabetical List of Agencies
Appearing in the CFR
The Alphabetical List of Agencies Appearing in the CFR is
another means of accessing the regulations.
CFR
Updating Regulations in Print
• LSA: List of CFR Sections Affected
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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
Register
CFR
The Code of Federal Regulations
Database (CFR) on Westlaw
• The CFR database includes all 50 titles.
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to the Code of Federal Regulations.
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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.
CFR
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CFR
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– Database: CFR
– Search: security to strengthen flight-crew doors in
airplanes
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CFR
The CFR on Westlaw
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headings that precede the caption
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and heading
• The notes field (NO) contains editorial and effective date
notes
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Register source notes
CFR
• 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)
CFR
Table of Contents for the CFR Database
Links for
121.583
TOC
121.583
• When viewing a regulation, click the Table of Contents
link on the Links for tab in the left frame.
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viewing in the right frame.
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Contents.
CFR
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Documents in Sequence
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at the bottom of the right frame.
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regulation as if paging through the print regulations.
CFR
Updating CFR Regulations on Westlaw to Section
And Paragraph Number in FR Database
Database: FR
Search: pr(“14 cfr”) & 121.313(f)
“14 CFR” is in the prelim field. The part number is also in
the prelim field but, because it is built into the section
number, there is no reason to include it in the query.
CFR
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KeyCite
Recent Update
History
Citing References
• 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.
Federal Administrative (Agency)
Decisions
Contents
Administrative Decisions
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)
Administrative Decisions
Formal Agency 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.
Administrative Decisions
Formal 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
Official decisions of the Federal Power Commission and
the Federal Trade Commission published by the United
States Printing Office.
Administrative Decisions
Formal 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.
Administrative Decisions
Unofficial decisions of the Federal Energy Regulatory
Commission as published by CCH
Administrative Decisions
Finding an Agency Decision
• Each agency has its own method of indexing decisions so
few generalizations can be made.
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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.
Administrative Decisions
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 (All Law Reviews and Bar Journals)
• Query: f.c.c. f.c.c.r. /10 decision /p merger re-organization
/p radio television
At least one of the 31
documents retrieved with
the above search
cites to decisions of the
Federal Communications
Commission
Administrative Decisions
• KeyCite lists federal administrative decisions that have
been cited in court cases
• Click the Citing References link.
• Click the Limit KeyCite Display button at bottom of
screen.
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Admin. Dec.
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Administrative Decisions
Finding Orders and Decisions 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: Natural Language
misleading (deceptive false) advertising vitamins
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
Administrative Decisions
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.
Administrative Decisions
A Partial List of Agencies Whose Decisions
Can be Updated in KeyCite
• 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
Administrative Decisions
Updating 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.
Administrative Decisions
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
Administrative Decisions
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.
Administrative Decisions
Judicial Review of Administrative
Decisions: Common Issues
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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
Administrative Decisions
When Federal District Court has Original
Jurisdiction over Agency Matter
• 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
CONTROVERSY
AGENCY ACTIONS
Decision by
Presiding Officer,
Commissioner, or
ALJ
Appeal to higher entity
within the Agency:
Exhaustion of Agency
Remedies
COURT ACTIONS
Original Jurisdiction
by District Court
• By statute
• Agency is plaintiff
• Federal question
• Mandamus action
Judicial Review
• To Court of Appeals
if statute provides
for appeal
• To District Court if
there is no provision
for appeal
If you are unfamiliar with administrative law research,
call the Westlaw Reference Attorneys. They are:
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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