Administrative materials.
Jurisdiction | United States |
Section 58. Administrative materials.—Today's practitioner is far better off with respect to access to Federal regulations and similar administrative materials than was the lawyer of a generation ago. The fiasco of the Hot Oil Case,167 which involved a prosecution for violation of a non-existent regulation, the provision alleged to have been violated having dropped out through an inadvertence in the process of renumbering an amendment thereto, evoked an outcry168 that resulted in establishment of the Federal Register.169 Thereafter, all Federal regulations in force were collected in the Code of Federal Regulations, which has since been kept up to date,170 and so now there is no danger of further hidden-ball plays; although to be sure, as the essentially emotional dissent in the Merrill case171 teaches, there was for some time reluctance to apply the doctrine that publication of a regulation in the Federal Register binds all concerned quite as automatically as does passage of an Act of Congress.
But that doctrine can now hardly be questioned, and therefore in many Federal fields it is necessary for the practitioner always to check all of the pertinent directives promulgated pursuant to statutory authority, whether rules of court, reorganization plans, regulations, or administrative rulings. It is hardly necessary even to suggest such an obvious proposition to tax practitioners. Members of that segment of the bar have numerous excellent tax services at their disposal to keep them not only reasonably current in this respect but actually up-to-the-minute, and they are moreover thoroughly familiar with "the regulations problem"172 and with the pain it has caused and is causing them and their clients. It is difficult to resist the conclusion that, to an extraordinary degree, the Supreme Court for the last twenty years or so has sustained the Treasury in almost every contest that turned on the validity of tax regulations,173 even to the length of approving what can only be characterized as a post litem motam flip-flop.174
In many other fields, too, there are administrative rulings made by agencies and tribunals that operate in particular fields subject to Federal regulation. Many of these rulings are published in regular series of reports 175 and in numerous unofficial but entirely authoritative services.176 The specialist concerned must of course refer constantly to all such materials, and indeed cannot afford to neglect any of them. For instance, although a former Chief Judge of the Tax Court wrote that memorandum decisions of that tribunal are not to be considered as precedents,177 the Supreme Court recently relied on a Tax Court Memorandum to show that the Tax Court had abandoned an earlier and fully reported decision.178
Law officers' rulings may likewise be relevant; the most important of these are Opinions of the Attorney General, Decisions of the Comptroller General,179 General Counsel's Memoranda in the Treasury Decisions, and, for any question of military law antedating the creation of the Court of Military Appeals in 1951, the opinions of the service Judge Advocates General.180
Such rulings cannot be ignored by the brief-writer, because frequently courts cite them in support of the result reached in their opinions.181 On other occasions, however, an unbroken series of many rulings over a long period, even when duly cited and pressed upon the court, will be completely ignored.182 A somewhat different situation is presented in the Court of Claims; there a great deal of litigation involves the frank challenging, and indeed the frequent overturning, of prior determinations made by the Comptroller General on the precise demands that are in issue.183 It must always be borne in mind that all law officers' rulings are essentially ex parte, and that they are regularly made with an eye to executive preferences. As a very wise and discerning lawyer of an earlier day once remarked, every volume of the Op. Att'y. Gen. carries on its title-page the unseen but nonetheless unmistakable motto, "We strive to please."184 Accordingly, the lawyer litigating against the Government will not, realistically speaking, be very far in error if he treats law officers' rulings as being essentially in the nature of admissions against interest.
Where, however, a case turns on long-continued administrative practice that is not reflected in published services, or on a ruling or opinion that for some reason does not appear in the Federal Register,185 or on any information peculiarly within the knowledge of the agency concerned,186 the Government undoubtedly has the whip hand. Such materials are not normally available to outsiders, and where the documents in question are so old that they have been transferred to the National Archives, the obvious obstacle is that only a very few litigants are in a position to underwrite inquiry there.
Back in the days of the old Model T, a waggish fellow, seeing the report of a forfeiture case entitled United States v. One Ford Automobile, commented that this caption reflected a most unequal contest. Well, when a case turns on administrative materials, whether those are regulations or unwritten...
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