Federal Administrative (Agency) Decisions

Decisions of Administrative BodiesDecisions 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)

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.

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.

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.

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

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.

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 searchcites to decisions of theFederal CommunicationsCommission

• 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.

• Deselect all but Administrative Decisions check box.

• Click Apply.

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Admin. Dec.

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

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

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

Updating an Agency Decision

History

Vacated in Part

Decision in Question

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

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.

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

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.

Judicial Review of Administrative 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

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

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