Federal Administrative (Agency)
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)
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 search
cites to decisions of the
Federal Communications
Commission
• 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.
Admin. Dec.
Apply
Limit KeyCite Display
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
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.
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
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