Cervase v. Office Of The Federal Register

580 F.2d 1166 (3rd Cir. 1978)


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 P and the public at large by making it almost impossible for them to know which federal regulations apply to them. P claims that the duty to prepare an analytical subject index arises out of two important federal statutes: The Federal Register Act of 19352 and the Freedom of Information Act of 1974. The Administrative Committee of the Federal Register is charged with the statutory responsibility for publishing the Federal Register and the Code of Federal Regulations. 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. Other regulations provide for the indexing of the Federal Register and the annual publishing of a subject index to the Code of Federal Regulations. 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. P 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. P 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. P alleged a violation of 44 U.S.C. §§ 1510(b) and (d), and also relied on the Administrative Procedure Act, as amended by the Freedom of Information Act. This Act imposes a separate indexing obligation on federal agencies. D 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 and that therefore the Committee's action is discretionary and beyond judicial review. The district court accepted this argument and P appealed.