Cervase v. Office of Federal Register
| Decision Date | 05 January 1978 |
| Docket Number | No. 77-1392,77-1392 |
| Parties | John CERVASE, Appellant, v. OFFICE OF the FEDERAL REGISTER. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Robert J. DelTufo, U. S. Atty., Brian D. Burns, Asst. U. S. Atty., Newark, N. J., for appellee.
John Cervase, pro se.
Before GIBBONS and GARTH, Circuit Judges, and WEINER, * District Judge.
John Cervase, an attorney at law appearing pro se, appeals from the dismissal of his complaint on the government's motion under Rule 12(c) of the Federal Rules of Civil Procedure. The complaint alleges: (1) that the Office of the Federal Register is under a statutory duty to prepare and publish an analytical subject index to the Code of Federal Regulations; (2) that the Office has breached this duty by preparing only a 164-page table of contents to the entire 120-volume Code; and (3) that this breach of duty has injured Cervase and the public at large by making it almost impossible for them to know which federal regulations apply to them. The government filed an answer to this complaint, but later moved for judgment on the pleadings. On December 16, 1976, the district court granted the government's motion and dismissed the action. The court reasoned that mandamus would not lie to enforce the alleged statutory duty, that the Office was not a suable entity, and that the plaintiff had failed to satisfy the requirements of standing. In addition, the court declined to accept an amended complaint proffered by Cervase. The entire transcript of the exceptionally brief hearing on the government's Rule 12(c) motion is quoted in the margin. 1 Since we believe that such a summary disposition of Cervase's complaint was improper, we reverse the dismissal and remand the case for further proceedings.
Cervase claims that the duty to prepare an analytical subject index arises out of two important federal statutes: the Federal Register Act of 1935 2 and the Freedom of Information Act of 1974. 3 As amended, § 11 of the Federal Register Act provides in relevant part:
(b) A codification published under subsection (a) of this section shall be printed and bound in permanent form and shall be designated as the "Code of Federal Regulations." The Administrative Committee shall regulate the binding of the printed codifications into separate books with a view to practical usefulness and economical manufacture. Each book shall contain an explanation of its coverage and other aids to users that the Administration Committee may require. A general index to the entire Code of Federal Regulations shall be separately printed and bound.
(d) The Office of the Federal Register shall prepare and publish the codifications, supplements, collations, and indexes authorized by this section.
Act of Oct. 22, 1968, Pub.L. No. 90-620, ch. 15, § 11, 82 Stat. 1277 (codified at 44 U.S.C. § 1510) (emphasis added). This version of § 11 was adopted as part of a general recodification of laws relating to public printing and public records. Since that recodification was not intended to make any substantive changes in the law, we must look to the prior Federal Register Act of 1935, as amended, to determine the purposes underlying the statutory requirement that there be both a "Code of Federal Regulations" and a general index to that code.
Prior to 1935, although federal regulations of general applicability might have affected legal relations, they often were not conveniently available to those to whom they applied. Consequently, in that year Congress first imposed the requirement that such regulations be published in the Federal Register. 4 The Act also provided that a document required to be published would not be valid against any person who lacked actual knowledge thereof. However, publication of the document in the Federal Register was deemed sufficient to give notice to any person subject to or affected by the document. 5
The original Federal Register Act provided for a compilation of all existing agency regulations of general applicability and legal effect. In 1937, however, that Act was amended to provide for codification instead of compilation, with a new codification to be made after five years. 6
In the 1937 amendment Congress, for the first time, imposed the indexing obligation on those responsible for preparing the periodic codifications. 7 The significance of this obligation within the framework of what is commonly referred to as the Federal Register System 8 is obvious. Codification of a document is prima facie evidence both of its text and of its continuing legal effect. 9 Publication of the document in the Federal Register makes it effective against the world. But without the retrieval mechanism provided by an adequate index, a person might never be aware of a document containing a regulation affecting him until some federal bureaucrat produced a copy of the document and attempted to apply it to him. Indeed, the affected individual might already have changed his position in complete ignorance of the existence of the regulation. Such ignorance would avail him not, however, since publication in the Federal Register gives him constructive notice of the existence of the regulation. The Federal Register Act was enacted because of widespread dissatisfaction with the unsystematic manner in which executive orders, agency regulations, and similar materials were being made available to the public. 10 The basic object of this statutory reform was to eliminate secret law. We think that the indexing obligation is a central and essential feature of this congressional plan. Without that obligation the periodic codification of regulations cannot serve the congressional purpose of providing public access to what has been published in the Federal Register.
The first codification appeared in 1938. Although the codification system was suspended during World War II, 11 it was revived by executive order thereafter and a new codification appeared in 1949. In 1953 Congress amended the Act to provide for more frequent revisions. 12
The Administrative Committee of the Federal Register is charged with the statutory responsibility for publishing the Federal Register and the Code of Federal Regulations. 13 However, through a regulation the Committee has delegated the authority to administer the Office of the Federal Register to the Director of the Federal Register. 14 Other regulations provide for the indexing of the Federal Register 15 and for the annual publishing of a subject index to the Code of Federal Regulations. 16 Neither the Federal Register Act nor these regulations make this matter of indexing discretionary. On the contrary, there is a plain and mandatory duty to provide indices.
Cervase claims that the 164-page table of contents is so totally inadequate that it cannot be considered to be in compliance with that mandatory duty. In his brief to the district court Cervase observed that the 1938 codification consisted of 14 volumes, with a general index of 513 pages. The current codification has grown to 120 volumes covering fifty titles, while what passes for an index has actually shrunk to 164 pages. By contrast, the general index to the fifty titles of the annotated United States Code comprises eight bound volumes and eight supplements, or a total of 9024 pages.
Although his complaint alleged only a violation of 44 U.S.C. §§ 1510(b) and (d), in his brief to the district court Cervase also relied on the Administrative Procedure Act, 17 as amended by the Freedom of Information Act. 18 This Act imposes a separate indexing obligation on federal agencies:
Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if
(i) it has been indexed and either made available or published as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
5 U.S.C. § 552(a)(2) (emphasis supplied). Since Cervase's amended complaint was not filed, we do not know whether it sought relief against any other agencies for failure to comply with the statute quoted above. But Cervase did argue that § 1510(b) should be construed in pari materia with the Freedom of Information Act. That Act reaffirmed Congress' commitment to the principle of meaningful public access, by means of indexing, to records of agency action.
The government urges that under the Federal Register Act the Administrative Committee of the Federal Register is authorized to prescribe regulations providing for the manner and form in which the Federal Register shall be printed, compiled, indexed, bound, and distributed, 19 and that therefore the Committee's action is discretionary and beyond judicial review. Apparently the district court, in its cryptic reference to mandamus, accepted this argument. However, we believe that this argument is defective for several reasons.
Even assuming for the moment that a writ of mandamus was not available to Cervase, we think that the district court erred in dismissing the complaint. As mentioned earlier, the court refused to...
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