Vol. 40 No. 4
ByShawn G. Nevers
Shawn G. Nevers teaches legal research and is head of reference services at the Howard W. Hunter Law Library at Brigham Young University.
G.I. Joe was a favorite cartoon of mine growing up. I don’t remember much about it now, but I do remember that each episode ended with a public service announcement of sorts. Here’s how it went every time: Kid is about to do something dangerous (electrocute himself, hide in a trunk, or the like); soldier explains why he shouldn’t; kid says, “Thanks, now I know”; soldier responds, “and knowing is half the battle.”
This came to mind recently as I thought about researching administrative agency decisions. In my experience, law students have an underwhelming understanding of administrative law and procedure. Not that it’s all your fault. Law schools don’t make it much of a priority. Because of that, when it comes to researching administrative law, knowing really is half the battle.
Administrative agencies are unique creatures in the US legal system. They are part of the executive branch, but also possess quasi-legislative and quasi-judicial powers. This feels a bit strange because we’ve been taught about separation of powers since we were young. But it all works because an agency’s ability to make laws (regulations) and adjudicate disputes is granted to it by Congress and can be reviewed by the courts.
We don’t have space to talk about regulations here. We’ll have to save that for another day. Our focus is on the quasi-judicial role that produces administrative decisions. When working in many areas of the law, these are important resources that most law students know little about. So let’s begin the battle and get you in the know.
We’ll begin with “fleeting expletives.” On November 4, 2008, “fleeting expletives” took center stage at the US Supreme Court. At issue were objectionable words used by Nicole Richie and Cher on live television, which incurred the wrath of the Federal Communications Commission (FCC). Because they were used just once, these words were known in FCC-speak as “fleeting expletives”—a term that nearly sounds like an expletive itself.
So the country became familiar with “fleeting expletives,” but what does this have to do with legal research? Good question. I’m glad you asked. The original dispute in this case produced a Memorandum Opinion and Order finding apparent liability against Fox. But, while this document reads like a court opinion, you’ll find that it didn’t come from a court. It came from the FCC itself. That’s because Congress has granted the FCC the power to ensure broadcasters comply with federal laws and regulations. And it does so by adjudicating disputes and producing opinions.
What does this all mean for you, the legal researcher? Well, if your research involves you in a matter under the FCC’s jurisdiction, you don’t want to miss FCC opinions. Doing so may result in non-fleeting expletives or worse.
To find those opinions you’ve got to know they exist and where to find them. (That’s half the battle.) One helpful tool for identifying where agency decisions are found is The Bluebook. (Yes, I just used “helpful” and “Bluebook” in the same sentence.) The Bluebook’s Table 1.2 provides a nice list, although not exhaustive, of official sources of agency decisions.
For example, from The Bluebook I can quickly discover that the FCC publishes its decisions in theFederal Communications Commission Record. I can then search the FCC Record on Westlaw, Lexis, or a free (although inferior) version on the FCC website. Searching for fleeting expletives will give me the FCC’s decision that went to the Supreme Court, as well as the decision in a case involving Bono and the Golden Globe Awards that established the “fleeting expletives” policy.
One of the difficulties in dealing with administrative agencies (and, frankly, in writing this column) is how different each agency is. For example, some agencies, like the FCC, have few layers of administrative decisions—typically an initial decision by an administrative law judge and an appellate decision from the agency. Other agencies, like the IRS, the SEC, and the US Patent and Trademark Office, produce multiple decisions and other documents that you should be familiar with if researching in that field. The IRS, for example, produces Revenue Rulings, Treasury Decisions, Private Letter Rulings, and a host of other documents that you should get to know if you descend into the depths of tax research.
An explanation of how individual agencies work could fill volumes and bore you to tears. I’d like to avoid that. The fact is, performing good legal research requires you to study up on your agency and learn how it functions. Agency websites are often quite helpful in getting you up to speed on your agency.
Let’s look at an example. Say your supervisor needs you to do some research into whether a crime of possession of marijuana constitutes an aggravated felony under immigration law, which could trigger deportation. Because immigration law is federal, your instincts will tell you (at least they should) to research federal statutes and case law. But don’t stop there.
Some Internet research will help you learn that within the Department of Homeland Security immigration matters are handled by US Immigration and Customs Enforcement (formerly INS). However, if you look further you’ll find that the quasi-judicial role of immigration is handled by the Department of Justice’s Executive Office for Immigration Review. Within that department an immigration judge makes an initial ruling on removal, which can then be appealed to the Board of Immigration Appeals. So there’s an entire body of appellate “case law” from the Board of Immigration Appeals that you should be searching, in addition to federal cases and statutes, to make your research complete.
As with other legal sources, administrative decisions can and should be KeyCited or Shepardized. For certain agency decisions, like with the Board of Immigration Appeals, KeyCite is more comprehensive than Shepard’s. With other agencies, like the FCC, the services are more comparable in their offerings.
One overarching principle to know is that certain statutes grant and govern an agency’s adjudicative power. Every agency has an enabling statute that grants it certain power. Challenges to an agency’s decision will succeed if it can be shown that the agency reached beyond the power it was granted by Congress.
Additionally, the Administrative Procedure Act (APA) works with the enabling statute to govern federal administrative agencies. This act sets forth procedures an agency must follow as well as the standard by which federal courts review agency decisions. This makes the APA a critical piece of legislation for lawyers dealing with administrative agencies.
Researching administrative decisions can be tough if you don’t know much about them. I hope this column gets you in the know. Because knowing is half the battle.