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Cervase v. Office of Federal Register

filed: May 30, 1978.



Gibbons, Garth, Circuit Judges, and Weiner,*fn* District Judge. Garth, Circuit Judge, dissenting.

Author: Gibbons


GIBBONS, Circuit 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.*fn1 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*fn2 and the Freedom of Information Act of 1974.*fn3 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.*fn4 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.*fn5

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.*fn6

In the 1937 amendment Congress, for the first time, imposed the indexing obligation on those responsible for preparing the periodic codifications.*fn7 The significance of this obligation within the framework of what is commonly referred to as the Federal Register System*fn8 is obvious. Codification of a document is prima facie evidence both of its text and of its continuing legal effect.*fn9 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.*fn10 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,*fn11 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.*fn12

The Administrative Committee of the Federal Register is charged with the statutory responsibility for publishing the Federal Register and the Code of Federal Regulations.*fn13 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.*fn14 Other regulations provide for the indexing of the Federal Register*fn15 and for the annual publishing of a subject index to the Code of Federal Regulations.*fn16 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,*fn17 as amended by the Freedom of Information Act.*fn18 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,*fn19 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 consider a tendered amendment which, judging from the information in the brief transcript which is available, would have added the Director of the Office of Federal Register as a party defendant. We do not know what else the proposed amended complaint would have stated since the district court refused to permit that amendment to be filed. We do know, however, that under 28 U.S.C. § 1331(a) there clearly was subject matter jurisdiction in the district court, regardless of the amount in controversy, over a complaint against the United States, any agency thereof, or any officer or employee thereof sued in his official capacity. Cervase's original complaint invoked jurisdiction under the mandamus statute, 28 U.S.C. § 1361, and sought a direction that the defendant prepare and publish an index in conformance with the statute. If the complaint had instead invoked jurisdiction under § 1331(a) and had otherwise stated a cause of action, the identical relief would have been available by way either of an injunction or perhaps of a declaratory judgment. 28 U.S.C. § 1653 states that "defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." Mindful of this admonition, we think that even if the district court had correctly concluded that mandamus would not lie, that court was obliged to examine the tendered amendment to see if it stated a claim cognizable under § 1331(a). The district court's failure to consider the amended complaint submitted by Cervase exceeded all bounds of permissible discretion. Since that amendment was not received, we do not know what was alleged respecting subject matter jurisdiction. But since such jurisdiction plainly does exist under § 1331(a), we will examine the pleading as if it had relied on both § 1361 and § 1331(a).

Certainly Cervase's complaint states a cause of action cognizable under § 1331(a). The regulations promulgated by the Administrative Committee impose an indexing obligation on the Office of the Federal Register. Although the regulations do not define the term "index," the Committee clearly intended that the word have its ordinarily understood meaning. Secondly, had the Committee attempted, by regulation, to define "index" to be something different than its ordinarily understood meaning, we would be faced with the question whether, in granting the rulemaking authority found in 44 U.S.C. § 1506, Congress intended to place such rules beyond judicial review. See 5 U.S.C. §§ 704 and 706. But such a construction would fly in the face of the fundamental purpose of the Federal Register Act - to eliminate the problem of secret law.*fn20 In our opinion, the Administrative Procedure Act provides aggrieved persons with an avenue for judicial review of the committee's regulations.

More fundamentally, even if Cervase's complaint is read to invoke jurisdiction only under § 1361, that complaint does state a claim for relief. Cervase does not complain about the regulations which deal with the manner and form in which the indices shall be prepared and distributed. Rather, he complains that the Director of the Office of Federal Register is not following those regulations. Certainly that ministerial office has no discretion to disregard them. It is his inaction for which judicial intervention is sought. Mandamus will lie to compel the Director to follow the administrative regulations. See Commonwealth of Pennsylvania v. National Ass'n of Flood Insurers, 520 F.2d 11, 26-27 (3d Cir. 1975).

The government also urged successfully in the district court that the Office of Federal Register could not be sued in its agency name. As we noted above, the district court refused to permit Cervase to file an amendment naming the Director as a party defendant. Whatever might have been said for the learning on federal sovereign immunity and on the status of federal agencies or officials as parties prior to 1976, that learning became obsolete with the passage of the Judicial Review Act.*fn21 This new statute amended 5 U.S.C. § 702 to provide for a general waiver of sovereign immunity whenever non-monetary relief is sought. In addition, it amended 28 U.S.C. § 1331(a) to provide for jurisdiction in the district courts over such actions without regard to the amount in controversy. The legislative history of Pub. L. No. 94-574 demonstrates that Congress intended both to eliminate sovereign immunity as a bar to judicial review of agency actions and to prevent the United States from raising technical objections to the parties named as defendants. Thus, even if Cervase had not ...

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