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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.

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

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 by

Presiding Officer,

Commissioner, or

ALJ

Appeal to higher entity

within the Agency:

Exhaustion of Agency

Remedies

Original Jurisdiction

by District Court

  • By statute
  • Agency is plaintiff
  • Federal question
  • Mandamus action

AGENCY ACTIONS

COURT ACTIONS

CONTROVERSY

HENKELS interference

The following slides discuss the older way of agency recordkeeping and the services that Westlaw provides for those seeking to access past decisions. All recent and contemporary decisions can be found in digital format, but services like Westlaw can still help people find what they need faster.

For example, the EPA’s adjudication decisions can be found at “Filings, Procedures, Orders and Decisions of EPA's Administrative Law Judges”.

https://www.epa.gov/alj

DO NOT BOTHER WITH THE REST UNLESS YOU ARE REALLY CURIOUS ON YOUR OWN ABOUT TRACKING DOWN ADJUDICATION 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.

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.

Limit KeyCite Display

Apply

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

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.

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.