1. West’s Instructional Aids Series
ADMINISTRATIVE LAW RESEARCH
West’s Instructional Aid Series

2. CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions
2

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. COMPARISON OF STATUTES AND
REGULATIONS ROLES
STATUTES
REGULATIONS
• Passed by Congress
• Issued by agencies
• Provide for broad social and
economic goals and legal
requirements
• Get their power from Congress
• Get their power from the
Constitution
• Prescribe specific legal
requirements to meet
congressional goals
• Reviewed by courts for
constitutionality
• Reviewed by courts to determine
constitutionality, limits of delegated
authority, and whether they are
arbitrary and capricious
• Representative democracyCongress acts to represent
the will of the people
• Participatory democracy –
agencies must seek and consider
public comment
11

12. 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

13. 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

14. 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

15. RULEMAKING PROCESS
President
Executive Order
Delegated Authority
Congressional
Oversight
Judicial
Review
Congress
Agency
Public
Law
(Enabling
Statute)
Delegated Authority
Agency
Federal
Register
Federal
Register
Proposed
Regulation
Final
Regulation
Public Comment
Agency
Code of
Federal
Regulations
15

16. CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions
16

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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
affecting CFR parts are
regulations or proposed
regulations
p.2112
• Cites the page numbers
where relevant documents
begin
28

29. 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

30. FEDERAL REGISTER – READER AIDS
• Reader Aids section is located at
the back of each daily Federal
Register print issue.
Reader Aids
• 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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
that document
Best
37

38. 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

39. 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

40. TIPS FOR SEARCHING THE FR DATABASE
ON WESTLAW
• The Unified Agenda compiles agendas prepared semiannually 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

41. 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

42. 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

43. PARTS AFECTED ON WESTLAW
• Database: FR
• Query: pr(14 /5 part /5 121)
43

44. CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions
44

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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
published in the Federal
Register and CFR
– Mostly technical
standards, state law, and
regulations
Title 14
Parts 60-139
50

51. 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

52. CFR – LIST OF CFR AFFECTED SECTIONS
• List of CFR Sections
Affected in each
volume indicates the
type of change that
was made.
52

53. 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

54. CFR – ACCESSING SECTIONS WITH THE
INDEX AND FINDING AIDS
• Subject entries and agency
names are in one listing
Index
• Access by subject or
agency
• References CFR title and
part numbers, not
individual regulations
Index and Finding
Aids Volume
14 CFR 121
54

55. CFR – ACCESSING SECTIONS WITH THE
INDEX AND FINDING AIDS
• The List of AgencyPrepared 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-Prepared
Indexes Appearing in
Individual CFR Volumes
USCA authorities
55

56. CFR – ACCESSING SECTIONS WITH THE
INDEX AND FINDING AIDS
• The list of CFR
Titles, Chapters,
Subchapters, an
d Parts provides
an outline of the
CFR
organization.
List of CFR Titles, Chapters,
Subchapters, and Parts
56

57. 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

58. 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

59. 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

60. CFR SEARCHES ON WESTLAW
• If you know the citation of a CFR section
– Access the Find service
– Enter: 14 CFR 121.313
60

61. CFR SEARCHES ON WESTLAW
• Natural Language:
– Database: CFR
– Search: security to strengthen flight-crew doors in airplanes
Best
Best
61

62. 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

63. 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

64. 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

65. 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

66. 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.
Citing References
History
66

67. CONTENTS
• Introduction: The Role of Agencies
• Federal Register
• Code of Federal Regulations (CFR)
• Federal Administrative (Agency) Decisions
67

68. 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

69. 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

70. 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

71. • Official decisions of the Federal Power Commission
and the Federal Trade Commission published by the
United States Printing Office.
71

72. 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

73. FORMAL ADMINISTRATIVE DECISIONS
• Unofficial decisions of the Federal Energy Regulatory
Commission as published by CCH
73

74. 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

75. 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 reorganization /p radio television
Many of the 68 documents
retrieved with the above
search
cite to decisions of the
Federal Communications
Commission
75

76. 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

77. 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

78. 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

79. 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

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

81. 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

82. 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

83. 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

84. 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

85. 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

86. 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
86

87. 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
87