John CERVASE, Appellant, v. OFFICE OF the FEDERAL REGISTER
No. 77-1392
United States Court of Appeals, Third Circuit
Decided May 30, 1978
580 F.2d 1166
Submitted Under Third Circuit Rule 12(6) Jan. 5, 1978.
I would affirm the decision of the district court and hold Index Fund to its bargain.
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.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
John Cervase, an attorney at law appearing рro se, appeals from the dismissal of his complaint on the government‘s motion under
* Honorable Charles R. Weiner, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
I
Cervase claims that the duty to prepare an analytical subject index arises out of two important federal statutes: the Federal
(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,
Prior to 1935, although federal regulations of general applicability might have affected legal relations, they often were not conveniently available to those to whom
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 amendmеnt 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 System8 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, howevеr, since publication in the Federal Register gives him constructive notice
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 Register15 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
Although his complaint alleged only a violation of
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.
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 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 the 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
Certainly Cervase‘s complaint states a cause of action cognizable under
More fundamentally, even if Cervase‘s complaint is read to invoke jurisdiction only under
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 tо 1976, that learning became obsolete with the passage of the Judicial Review Act.21 This new statute amended
The size and complexity of the Federal Government, coupled with the intricate and technical law cоncerning official capacity and parties defendant, has given rise to numerous cases in which a plaintiff‘s claim has been dismissed because the wrong defendant was named or served.
Nor is the current practice of naming the head of an agency as defendant always an accurate description of the actual parties involved in a dispute. Rather, this practice often leads to delay and technical deficiencies in suits for judicial review.
The unsatisfactory state of the law of parties defendant has been recognized for some time and several attempts have been made by Congress to cure the deficiencies.
Despite these attempts, problems persist involving parties defendant in actions for judicial review. In the committee‘s view the ends of justice are not served when government attorneys advance highly technical rules in order to prevent a determination on the merits of what may be just claims.
[1976] U.S.Code Cong. & Admin.News pp. 6137-38 (94th Cong., 2d Sess.) (footnotes omitted). The district court‘s conclusion that the Office was not a suable entity was wholly inconsistent with the letter and spirit of the Judicial Review Act.
III
The judgment appealed from will be reversed and the case remanded to the district court for proceedings consistent with this opinion.
GARTH, Circuit Judge, dissenting.
On May 18, 1976, John Cervase, an attorney admitted to practice law in the State of New Jersey in 1929,1 filed an action pro se in the federal district court in New Jersey. He sought a writ of mandamus under
Complaint for Mandamus
1. The jurisdiction of the Court is invoked under
28 U.S.C. 1361 .2. Plaintiff is a citizen of the United States and the State of New Jersey, and a practicing lawyer.
3. Defendant is an agency of the United States. It is part of the National Archives and Records Service which is part of the General Services Administration.
4. The Code of Federal Regulations is a 120 volume set of regulations which have been made by federal departments and agencies. These regulations establish legal relations between the United States Government and the people.
5. Under
44 USC 1510(b &d) , Defendant owes a duty to the Plaintiff and to the people at large to prepare and publish an analytical subject index to the Code of Federal Regulations.6. Defendant has breached this duty by preparing and printing a 164 page index to the entire 120 volume Code of Federal Regulations. This index does not meet the standards of
44 USC 1510(b &d) or the Due Process Clausе of the Fifth Amendment to the Constitution of the United States.7. This breach of duty has injured Plaintiff and the people at large by making it almost impossible for them to know the federal regulations which apply to them.
WHEREFORE, Plaintiff prays for:
1. A mandamus directing Defendant to:
(a) Prepare and publish an analytical subject index to the Code of Federal Regulations before December 31, 1976;
(b) File in this Court before June 30, 1976 a detailed plan for achieving this goal;
(c) File in this Court before October 31, 1976 the final draft of the index. 2. An order directing Defendant to pay to Plaintiff all costs and reasonable attorneys’ fees;
3. All other relief which the Court may deem just and proper.
/s/
John Cervase
Counselor at Law
Pro Se
The record reveals that after the Government had filed its answer to the complaint, Cervase moved on October 8, 1976 for summary judgment. That motion, to which the Government responded by brief, was denied on November 3, 1976 by the district court.
The following day, November 4, 1976, the Government filed its motion for judgment of dismissal on the pleadings. This motiоn, which relied upon a brief previously submitted in opposition to Cervase‘s summary judgment motion, was served upon Cervase on November 3, 1976. Despite knowledge of the grounds on which the Government was relying, Cervase stood on his original mandamus complaint.
The Government‘s motion was initially scheduled to be heard on November 22, 1976, but was apparently rescheduled for hearing on December 13, 1976.
Then, for the first time, without having filed any motion to amend his complaint, Cervase proposed an amendment “adding the Director of the Office of the Federal Register as a defendant in the case.”2 Despite his having been put on notice at least as early as November 3rd that the Government would attack the jurisdictional basis of his action, Cervase at no time ever stated that he sought to amend the jurisdictional basis of his action. Nor did he at any time indicate any intent to rely upon
The district court, having no motion befоre it to amend the complaint and only Cervase‘s statement that he had “prepared an amendment to the complaint . . . adding the Director of the Office of the Federal Register as a defendant in the case,” denied Cervase‘s oral application, inasmuch as just prior to Cervase having made his “amendment” application, there had been a ruling in favor of the Government which had dismissed Cervase‘s complaint.
The district court based its ruling on “at least” three grounds:
1. A writ of mandamus will not lie to enforce a provision such as
As a second reason, the Office of Federal Register is not a suable entity.
And, finally, the plaintiff does not meet the required tests of standing to sue under relevant case law. (See, generally, Warth v. Seldin, 422 U.S. 490 (1975).4
Notwithstanding that the district court was clearly correct in dismissing Cervase‘s complaint, the majority opinion would rеverse that judgment and reinstate Cervase‘s complaint, but in a new guise.
Cervase, as is undisputedly evident, alleged jurisdiction solely under section 1361, as he sought only a writ of mandamus which would result in a direction to OFR. At no time did Cervase assert or even intimate that he was interested in any other jurisdictional predicate—and for good reason. First, the manner in which his complaint is framed speaks peculiarly to mandamus. Second, the relief sought by Cervase is peculiarly available only through mandamus. To substitute federal question jurisdiction under section 1331(a) in his complaint not only would require a com-
Yet the majority, ignoring the very pleading prepared by Cervase which expressly and unequivocally seeks mandamus, adds a gloss to his complaint by stating: “since such jurisdiction plainly does exist under
My disagreement with the majority therefore rests on two grounds. First, I believe, and I am convinced that the majority also believes, that the district court correctly ruled that mandamus is not available to redress Cervase‘s grievance. Second, I believe that having so ruled, and ruled correctly, the district court was under no obligation to solicit an amendment alleging
Mandamus
In our Circuit a writ of mandamus will not issue to achieve what Cervase seeks: a rewrite of the index to the Code of Federal Regulations. Rather, “[f]or a petition to state a claim upon which mandamus relief may be granted, it is imperative that the petitioner allege that the government owes the petitioner the performance of a legal duty ‘so plainly prescribed as to be free from doubt.‘” Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25 (3d Cir. 1975) (emphasis added). In short the duty must be the performance of a ministerial act—one that does not require discretion.
Here, the applicable statutes and regulations prescribe that the OFR provide only a “separately published” “annually revised” “general” “subject index.”
Congress, as acknowledged, has prescribed a “general” “subject” index.8 That index has been prepared and furnished by the OFR. This circumstance alone would defeat a mandamus action. Cervase, however, dissatisfied with the utility of a general subject index, seeks more. He seeks not just a general index but rather a particular type of index: an analytical subject matter
Aware of this basic mandamus principle,9 Cervase framed his argument not in terms of what the actual statutes require10 but in terms of how he interprets them. His argument may be summarized as:
(1) the appropriate statutes and regulations governing the C.F.R. index actually require not a “general” “subject index” as they state but rather an “analytical subject index“;
(2) the C.F.R. index is not an “analytical subject index“; and
In actuality however Cervase‘s contention that the C.F.R. index is inadequate and unconstitutional11 is no more than an interpretation by him of the legislative history which gave rise to the statute and the regulations. He supplements that interpretation by contending that because Congress intended an effective C.F.R. index, and further because only an “analytical subject index” is effective, Congress must have intended that the OFR provide an analytical C.F.R. subject index, even though
Whatever may be said with respect to the merits of Cervase‘s argument (and I too sympathize with his difficulty in having to make do with an inadequate index), neither his complaint, nor the relief it seeks, can be described as that which seeks “the performance of a legal duty ‘so plainly prescribed as to be free from doubt.‘” Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d at 25. Rather, in all fairness it can only be characterized as a “complain[t] about the regulations which deal with the manner and form in which the indices shall be prepared and distributed,” Maj.Op. at 1171 a complaint which the majority implicitly concedes is not remediable by mandamus.12 Indeed the majority, quite aware of the relevant statutes and regulations and also recognizing the controlling principles, was obliged to fall back on the shibboleth that what Cervase sought was no more than a direction that the OFR follow its own regulations. Id. at 1170-1171. Certainly if that was all that was at issue, I would agree, and I can safely assume the district court would have agreed, that mandamus would lie to compel compliance with one‘s own rules. See Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d at 26-27. The difficulty with this approach however is that OFR has followed its own regulations—but those regulations require no more than the publication of a “general” “subject index” in the manner and form determined by OFR and not by Cervase or by any other person or entity.
28 U.S.C. § 1331(a)
As the majority acknowledges, Cervase did not assert jurisdiction under
The rules that govern federal district court proceedings mandate among other requirements that a party‘s pleading state “the grounds upon which the court‘s jurisdiction depends.”
First we must recognize that in this case there was no “tendered amendment” which even suggested a reference to section 1331(a).20 Despite the absence of any such proposed amendment annexed to a motion to amend (neither of which was ever filed or submitted), the majority would nevertheless require such a non-existent amendment to be examined and, from the thrust of the majority opinion, also to be structured by the court to accommodate thе injunctive and declaratory allegations and relief which would be the concomitant of such a § 1331 complaint. See Maj.Op. at 1170-1171.
It must be obvious that any amendment based on 1331 jurisdiction would create a vastly different complaint than the mandamus complaint on which the court ruled.21 It must also be obvious that Judge Stern‘s dismissal of Cervase‘s mandamus complaint did not preclude Cervase from drafting and filing a new complaint incorporating the essential allegations supporting federal question jurisdiction—allegations necessarily different in substance and form from those asserted in his complaint in mandamus.
Hence I can only read the majority‘s holding as one which would require the district court (1) to invite an amendment from the plaintiff who theretofore had not seen fit to amend his complaint despite notice of its alleged deficiencies; and (2) (once having received the amendment if in fact the plaintiff does move to amend), to examine the amendment to ascertain the possibility of a claim cognizable under a different branch of federal jurisdiction. Inasmuch as the form of such a complaint would differ substantially from the form of a mandamus complaint, I would suppose that the district court would be obliged as well to either instruct the plaintiff in the intricacies of pleading injunctive and declaratory claims, or to restructure the “invited” amendment itself.
In either event it is apparent that whatever is revealed by Cervase‘s amended complaint (which to this day has yet to be submitted), it is not that complaint to which the defendant‘s motion is addressed. Nevertheless, the majority has held that the district court‘s failure to consider such an undrafted, unfiled, unarticulated “amended complaint” (one which may never see the
The majority cites no statute, regulation or decisional law which vests in the district court an obligation to invite and to еxamine jurisdictional amendments to deficient complaints. I also can find none.23 Nor is there any basis in logic, policy or practice for imposing such a duty. Instead, (1) where, as here, the plaintiff has had ample notice of a jurisdictional problem; and (2) where, without seeking to cure the jurisdictional defect by motion or otherwise, the plaintiff has stood on his complaint seeking only to add another defendant; and (3) where the district court has no motion to amend the complaint before it, and only a motion by the defendant to dismiss for lack of subject matter jurisdiction; and (4) where the district court then rules correctly on the principal and threshold issue presented—that of jurisdiction24—and (5) where the plaintiff does not assert before us any abuse of discretion by the district court relating to any purported jurisdictional amendment to his pleadings, I believe it to be a gross abuse of the function of appellate review to reverse the district court judge‘s obviously correct ruling.
Had the only ruling on Cervase‘s pleadings been to deny him the right to add another defendant, I undoubtedly would have agreed with the majority that the district court abused its discretion in not permitting the complaint to be amended to add the Director of the OFR as a defendant. However if that had been the only deficiency in Cervase‘s pleadings, there is no question in my mind but that distinguished district court judge would have properly exercised his discretion and would have permitted such an amendment. As I have pointed out however, faced with a complaint which was tailored explicitly and unequivocally for mandamus relief, there was no basis for District Judge Stern to rule other than as he did.
The majority‘s action would have been much more comprehensible to me had the
Because I am satisfied beyond question that the district court ruled correctly in dismissing Cervase‘s complaint—the only matter that was before that court—I am obliged to dissent from the majority‘s holding. My distress with that holding is even more pronounced because the majority has reached out unnecessarily to impose an unwise duty of ombudsmanship on the district court. If the majority‘s “oblig[atiоn]” requirement is sustained, district court judges must henceforth assume the role of both advocate and judge, a dual role which is obviously incompatible with and which undermines the very structure of our jurisprudence.
I would affirm Judge Stern‘s order which dismisses Cervase‘s complaint—the only order before us to be reviewed.
Notes
In this lawsuit the plaintiff seeks the issuance of a Writ of Mandamus under
While the Court is, of course, sympathetic to the complaint of the plaintiff and to other attorneys and citizens in general it cannot be gainsaid that CFR is difficult to use, and that the present system of indexing leaves much to be desired by way of completeness, accessibility and clarity.
Nevertheless, the motion of the United States for judgment on the pleadings must be granted for at least the following reasons:
1. A writ of mandamus will not lie to enforce a provision such as
As a second reason, the Office of Federal Register is not a suable entity.
And, finally, the plaintiff does not meet the required tests of standing to sue under relevant case law. See, generally, Warth v. Seldin, 422 U.S. 490 (1975). Accordingly, the complaint will be dismissed. Prepare an order, U.S. Attorney‘s office.
Mr. Cervase: Your Honor, may I just say one word for the record?
The Court: Yes.
Mr. Cervase: A pretrial conference is set for this morning on the case and the motion to dismiss came after that. I prepared an amendment to the complaint to present at the pretrial conference which I have with me now,—
The Court: It is unnecessary.
Mr. Cervase:—adding the Director of the Office of the Federal Register as a defendant in the case.
The Court: Sorry. There is no case to have a conference on.
New Jersey Lawyers Diary and Manual 608 (1978).(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 Administrative 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. (Emphasis added).
1 C.F.R. § 8.4 reads: Indexes. A subject index to the entire Code [of Federal Regulations] shall be annually revised and separately published. An agency-prepared index for any individual book may be published with the approval of the Director of the Federal Register. (Emphasis added).
Under FRCP 15, leave to amend a technical defect in a complaint should be freely granted. Wright, Fed.Prac. and Proc. Sec. 1471 and following. Here, Judge Stern abused his discretion by denying Plaintiff leave to amend the complaint to include the Director of Defendant. At most, the omission was a technicality which Rule 15 was designed to correct. (Emphasis added.)
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court‘s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.