REPORT FOR THE
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

REPORT ON AGENCY LITIGATION WEBPAGES
Mark Thomson
Deputy Research Director, Administrative Conference of the United States

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).

Recommended Citation
Mark Thomson, Report on Agency Litigation Webpages (Nov. 24, 2020) (report to the Admin. Conf. of the U.S.).

TABLE OF CONTENTS

Introduction

2

I. The Value of Public Access to Agency Litigation Materials

2

A. Ensuring the public can follow the law

2

B. Promoting accountable and transparent government

4

C. Access to private parties’ litigation filings

6

II. Public Access to Agency Litigation Materials

7

A. Federal law regarding publication of agencies’ litigation filings

7

B. Federal laws regarding publication of court decisions in agency cases

9

C. PACER

10

D. Paid legal research services

12

III. Survey of Agency Litigation Webpages

12

A. Does the agency maintain an agency litigation webpage?

14

B. How easy is it to find and use the agency’s litigation webpage?

16

C. What’s on the agency’s litigation webpage?

18

IV. Exemplar: The FTC

19

A. The Cases and Proceedings webpage

20

B. The Amicus Briefs webpage

25

V. Potential Objections and Some Answers to Them

27

VI. Recommendations

31

Introduction
This report examines whether and how agencies should publish agency litigation
materials on their websites. The report defines “agency litigation materials” to include: (1)
judicial opinions in cases to which at least one agency is a party, and (2) substantive filings by
agencies in federal court cases. The report concludes that, because agency litigation materials are
useful for establishing, explaining, and clarifying agency policies, agencies should consider
creating and maintaining webpages cataloguing and linking to copies of agency litigation
materials. The report calls such webpages “agency litigation webpages.” It defines “agency
litigation webpages” as webpages on agencies’ websites dedicated to systematically cataloging
and linking to agency litigation materials — including pleadings, merits briefs, amicus briefs,
settlements, and court opinions — from cases in which the agencies participate and which relate
to the agencies’ regulatory or enforcement activities.
The report has six sections. Section I explains the value of making agency litigation
materials available to the public. Section II shows that federal law does not require agencies to
create anything like agency litigation webpages. Section III surveys agencies’ websites and
shows that, while a handful of agencies maintain robust and helpful agency litigation webpages,
most don’t. Section IV examines the FTC’s litigation webpages to highlight how specific
features can make litigation webpages particularly useful. Section V addresses some likely
objections to creating and maintaining agency litigation webpages. Section VI concludes by
offering some recommendations for federal agencies about developing and maintaining agency
litigation webpages.

1

I.

The Value of Public Access to Agency Litigation Materials
Broadly speaking, public access to agency litigation materials is desirable for two

reasons. First, because agency litigation materials often clarify how the Federal Government
interprets and aims to enforce federal law, they can help people understand their legal
obligations. Second, public access to agency litigation materials promotes accountable and
transparent government. Those two reasons distinguish agency litigation materials from litigation
filings by private parties.
A.

Ensuring the public can follow the law

The rule of law depends on people knowing, or at least being able to figure out, what the
law is and how the government will enforce it.1 It’s unreasonable to expect people to follow the
law if they can’t understand how it applies to them.2 Because federal agencies make, interpret,
and enforce most federal law,3 knowing what the law demands in a given situation often requires
knowing what agencies say about it.
Agency litigation materials often express, in a digestible format, agencies’ positions on
important topics. Litigation involving federal agencies naturally involves their most

See Tara Smith, Neutrality Isn’t Neutral: On the Value-Neutrality of the Rule of Law, 4 WASH. U. JUR. REV. 49, 59
(2011).
2
See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy Gutmann ed.,
1997) (describing “the trick the emperor Nero was said to engage in: posting edicts high up on the pillars so that
they could not easily read”).
3
See David S. Rubenstein, Administrative Federalism as Separation of Powers, 72 WASH. & LEE L. REV. 171, 175
(2015). In 2019, for example, the Federal Register was more than 70,000 pages. See National Archives, Federal
Register Pages Published 1936–2019,
https://s3.amazonaws.com/production.uploads.wordpress.federalregister.gov/uploads/
2020/04/01124109/stats2019Fedreg.pdf (last visited May 26, 2020). The Code of Federal Regulations consists of 50
titles and, in 2018, took up more than 185,000 pages. National Archives, Code of Federal Regulations Total Pages
1938–1949, and Total Volumes and Pages 1950–2019, https://s3.amazonaws.com/production.uploads.
wordpress.federalregister.gov/uploads/2020/04/01123111/cfrTotalPages2019.pdf (last visited May 26, 2020). And
those numbers do not even include the immense amount of law made every year by agency adjudicators and the
federal courts tasked with reviewing agency actions. See also Andrew Hessick, The Future of Administrative
Deference, 41 CAMPBELL L. REV. 421, 421 (2019) (“Agencies make most laws and adjudicate most disputes.”).
1

2

consequential and contested actions. Agency litigation materials thus tend to address the legal
questions about which the public most wants or needs clarification. Whereas many agency
publications, such as regulatory preambles and regulatory impact analyses, are dense and
voluminous,4 agency litigation materials tend to be concise and straightforward, zeroing in
quickly on key contested questions. And because most lawyers and courts draft agency litigation
materials for generalist audiences — whether judges or the public at large — they tend to
describe and synthesize issues in ways that avoid technical jargon.
Agency litigation materials can also help clarify the law by showing how abstruse or
ambiguous legal provisions apply to real-world factual scenarios. Because many agency
documents apply generally, agencies write them in general terms.5 Agency litigation materials,
by contrast, often address concrete disputes over how the law applies to specific, real-world
conduct. Agency litigation materials’ clarifying role can be especially important when the
applicable law comes from an array of sources, such as statutes, regulations, rules, executive
orders, adjudications, and court decisions. By collecting, compiling, and synthesizing the law
from those sources, agency litigation materials make it easier for the public to see the whole of
the law as it applies to specific circumstances.
And, of course, agency litigation materials often are the law, at least for practical
purposes. That is obviously true for court decisions in cases to which agencies are parties.6 But is
also true for interpretations of federal laws set forth in certain amicus briefs that federal agencies

4

Notices of proposed rulemakings for major rules, for example, are often hundreds of pages long. Richard J. Pierce,
Jr., Annual Review of Administrative Law: Response, 80 GEO. WASH. L. REV. 1493, 1497 (2012). The same is true
of regulatory impact analyses. See, e.g., Nat’l Ass’n for Fixed Annuities v. Perez, 217 F. Supp. 3d 1, 56 (D.D.C.
2016) (describing Department of Labor’s 382-page regulatory impact analysis); Ctr. for Auto Safety v. Peck, 751
F.2d 1336, 1342 (D.C. Cir. 1985) (addressing 263-page regulatory impact analysis).
5
The Administrative Procedure Act, for example, defines a “rule” as “an agency statement of general applicability.”
5 U.S.C. § 551(4).
6
See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (reiterating that judicial decisions are legally binding).

3

file.7 For those reasons, too, providing access to agency litigation materials advances the public’s
interest in knowing what the law is and how to follow it.
B.

Promoting accountable and transparent government

A lot of agency litigation concerns the reasonableness of the Government’s major policy
decisions. Has the Government acted arbitrarily or capriciously?8 Is the Government’s
interpretation of a statute or regulation reasonable?9 Because agency litigation so often turns on
questions like those, agency litigation materials often say a great deal, not just about the
substance of government policies, but about the processes and rationales underlying them.10
High-profile cases from the United States Supreme Court’s past two Terms show the
value of agency litigation materials as windows into government decisionmaking. Last Term’s
decision Department of Homeland Security v. Regents of the University of California11
concerned the legality of executive actions respecting the Deferred Action for Childhood
Arrivals (DACA) program, which allows millions of undocumented people to apply for
protection from deportation.12 The Term before that, in Department of Commerce v. New York,13
the Court addressed the legality of adding a citizenship question to the Census.14 Both cases

See, e.g., Beck v. PACE Int’l Union, 551 U.S. 96, 103–04 (2007) (deferring to position set out in amicus brief filed
by agency); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2417 n.6 (2019) (refusing to foreclose the practice of
deferring “to agency interpretations advanced for the first time in legal briefs”); Auer v. Robbins, 519 U.S. 452, 461
(1997) (holding that an agency’s interpretation of its own ambiguous regulation is “controlling unless ‘plainly
erroneous or inconsistent with the regulation’”).
8
See 5 U.S.C. §§ 553(c) & 706(2)(A).
9
See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 567 U.S. 837, 842–43 (1984); Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
10
See, e.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016) (explaining agency’s duty to
provide a reasoned explanation for its chosen course).
11
140 S. Ct. 1891 (2020).
12
See Amy Howe, Argument analysis: Justices torn, hard to read in challenge to decision to end DACA,
SCOTUSBLOG (Nov. 12, 2019), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-readin-challenge-to-decision-to-end-daca/.
13
139 S. Ct. 2551 (2019).
14
Id. at 2561.
7

4

garnered widespread public attention because of the consequential policies they involved.15 And
because both cases turned on whether the contested government action was supported by
reasoned decisionmaking, the materials filed by agencies and courts helped explain and clarify
the reasons for the Government’s policy choices.16
Those two cases are hardly outliers. Agency litigation materials routinely explain
discrepancies in agency practices,17 illuminate the statistical support (or lack thereof) for an
agency’s decision,18 and show how agencies’ actions do (or don’t ) square with other actions or
statements by agency or governmental officials.19
By shining a light on the Government’s legal and policy determinations, agency litigation
materials can help inform people of what their Government’s up to. Put differently, agency
litigation materials serve an important transparency function, one that helps make the
Government more accountable.20 Transparency and accountability are particularly important for
the modern administrative state, which scholars, judges, and politicians sometimes criticize as
too untethered from the people it is supposed to serve.21 By providing another lens through
which to understand and evaluate government decisions, agency litigation materials make it

15

See, e.g., Adam Liptak, Justices Appear Inclined to Let Trump End DACA, N.Y. TIMES A1 (Nov. 13, 2019)
(reporting on oral argument in the Regents case); Adam Liptak, Conservatives on Court Appear to Back New
Citizenship Query, N.Y. TIMES A1 (Apr. 24, 2019) (reporting on oral argument in the Department of Commerce
case).
16
See, e.g., Br. of Pet’rs, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., Nos. 18-587, 18-588, & 18-589, at
32–52 (explaining why the Department’s decision to rescind DACA was reasonable).
17
See, e.g., NRDC v. EPA, 777 F.3d 456, 466 (D.C. Cir. 2014) (addressing the “notable contrast” between agency’s
implementation of standards in 2008 and its implementation of the same standards in 1997).
18
See, e.g., State Farm Mut. Auto. Ins. Co. v. Dep’t of Transp., 680 F.2d 206, 231 n.30 (D.C. Cir. 1982) (citing
agency’s brief and noting the absence of data supporting agency’s action).
19
See, e.g., Am. Meat Inst. v. USDA, 760 F.3d 18, 25 (D.C. Cir. 2014) (explaining why agency’s statements from
prior rulemakings were not inconsistent with agency’s litigating position).
20
See Eric Berger, Deference Determinations and Stealth Constitutional Decision Making, 98 IOWA L. REV. 465,
522 (2013).
21
See Louis J. Virelli III & Ellen S. Podgor, Secret Policies, 19 U. ILL. L. REV. 463, 468 (2019) (identifying
relationship between transparency, accountability, and agency legitimacy).

5

easier for people to evaluate federal agencies and, if necessary, hold elected officials accountable
for the agencies’ actions.
C.

Access to private parties’ litigation filings

Litigation materials filed by private parties in cases against federal agencies do not
necessarily make it easier for the public to comply with the law. And because they aren’t always
a reliable indicator of the Government’s official position on a given subject, such private parties’
litigation filings don’t necessarily improve accountability or transparency — at least not to the
same degree agency litigation materials do. That’s not to say the public has no interest in private
parties’ litigation filings in cases involving federal agencies. Nor is it to say that such filings are
useless for understanding disputes about law and policy. Indeed, familiarity with private parties’
litigation filings is often essential to understanding the Government’s own litigation filings. The
point is simply that, because agency litigation materials come from the Federal Government
itself, they are uniquely relevant to debates about what the Federal Government is doing and
what federal law requires.

II.

Public Access to Agency Litigation Materials
However helpful agency litigation materials might be, federal law does little to mandate

public access to them. When it comes to agencies’ own litigation filings — pleadings, briefs,
declarations, settlements, and the like — only the Freedom of Information Act (FOIA) requires
disclosure, and then only when members of the public specify the materials in which they are
interested. The E-Government Act of 2002 requires federal courts to make their written opinions,
including opinions in cases involving federal agencies, available on websites. But that
requirement has not yielded “a satisfactory method of delivering usable and findable legal
6

information,”22 partly because most courts’ websites lack functions and features that would allow
users to easily identify cases about specific topics or agencies. The most comprehensive sources
of agency litigation materials are the Public Access to Court Electronic Records (PACER)
service and paid legal research services like Westlaw and Lexis, but features of each of those
sources might keep people from using them to find agency litigation materials.
A.

Federal law regarding publication of agencies’ litigation filings.

No federal law compels agencies to publicly disclose their own litigation filings without
being asked to do so. A few laws, like the Federal Records Act23 and the Paperwork Reduction
Act,24 might be read as encouraging broader electronic dissemination of agencies’ litigation
filings. But none of them mandates it.
FOIA comes closest by giving members of public the right to access many government
records, including agency’s publicly-available court filings, upon request.25 But it takes time and
effort to prepare and file a FOIA request, which may deter many interested citizens from making
them. Moreover, it can take months for agencies to process and respond to FOIA requests. In
2018, for example, agencies took an average of 26 days to respond to so-called “simple” requests

Ian Gallacher, Cite Unseen: How Neutral Citation and America’s Law Schools Can Cure Our Strange Devotion
to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law, 70 Alb. L. Rev. 491, 515
(2007).
23
44 U.S.C. §§ 2901 et seq. Congress enacted the Federal Records Act “to assure efficient and effective records
management.” Id. § 2902. To effect that purpose, the Act requires “[t]he head of each Federal agency [to] make and
preserve records containing … documentation of the organization, functions, policies, decisions, procedures, and
essential transactions of the agency[.]” Id. § 3101. The Act does not address public dissemination of federal records.
24
Id. §§ 3501 et seq. The Paperwork Reduction Act requires agencies to disseminate “public information in an
efficient, effective, and economical manner,” id. § 3506(d)(1)(C), which, “nowadays, means online disclosure.”
Daniel J. Sheffner, Access to Adjudication Materials on Federal Agency Websites, 51 AKRON L. REV. 447, 459
(2017). Despite that requirement, however, the Act does not mandate electronic disclosure of agency litigation
materials. That’s because it defines “public information” as “any information … that an agency discloses,
disseminates, or makes available to the public.” Id. at 3502(12). Thus, the Act’s electronic dissemination
requirement applies only to materials the agency already discloses; it does not independently compel electronic
disclosure of materials.
25
Id. § 552(a)(3).
22

7

— ones agencies anticipate will involve small volumes of material and which agencies believe
they can process relatively quickly.26 Members of the public may be unwilling to wait so long to
learn what agencies are telling federal courts.
Making a FOIA request can also be expensive because agencies often charge fees for
searching for, reviewing, and duplicating records. While there is usually no charge for the first
two hours of search time or the first 100 pages of copying,27 the charges can pile up after that. At
the Department of Health and Human Services, for example, search fees usually range from
about $23 to $83 per hour, depending on the salary levels of the personnel needed for the
search.28 Costs for duplication can balloon if a request covers voluminous materials.
Even if a FOIA request turns up useful information, the responding agency will normally
share that information only with the requestor rather than with the entire public. An exception
requires agencies to “make available for public inspection in an electronic format” records “that
have been requested 3 or more times,”29 but most agency litigation filings are unlikely to come
within that exception. Thus, members of the public seeking to access agencies’ litigation filings
are unlikely to find FOIA all that helpful.
B.

Federal laws regarding publication of court decisions in agency cases

Federal law is a bit more proactive in requiring publication of federal court decisions,
including those in agency cases. In particular, the E-Government Act of 2002 requires federal
courts to establish and maintain “website[s] that contai[n] ... [a]ccess to the substance of all

Dep’t of Justice, Summary of Annual FOIA Reports for Fiscal Year 2018, at 12, available at
https://www.justice.gov/ oip/page/file/1170146/download#FY18.
27
5 U.S.C. § 552(a)(4)(A)(iv)(II).
28
See U.S. Dep’t of Health & Human Servs., What is the cost for getting records under the FOIA?, available at
https://www.hhs.gov/foia/faqs/what-is-the-cost-for-getting-records-under-the-foia/index.html (last visited May 26,
2020).
29
5 U.S.C. § 552(a)(2)(D)(II).
26

8

written opinions issued by the court, regardless of whether such opinions are to be published in
the official court reporter, in a text searchable format.”30
Federal courts comply with that requirement in part by posting links to their decisions on
their websites. While laudable, that approach is of limited value to members of the public
interested in litigation involving agencies. One reason is that most courts’ websites link only to
the courts’ decisions, not to parties’ filings.31 That limits the amount of information those
websites provide about agencies’ views and litigating positions. Another reason is that the search
functionality on courts’ websites is often imperfect, especially when one party to a case is a
federal agency. Based on several tests conducted for this study, it appears most court websites’
search engines omit relevant decisions in such cases, even when the person conducting the
search enters the agency’s name into the websites’ search engines. Some of that discrepancy
might stem from the search engines’ designs.32 Some of it might be because courts’ case captions
are inconsistent in identifying certain agencies. For example, a lawsuit against the United States
Environmental Protection Agency (EPA) might name “U.S. Environmental Protection Agency,”
“U.S. EPA,” or “Environmental Protection Agency” as the respondent, or it might name the
current or former EPA administrator. Thus, someone who searches for case names that include
“EPA” might not find all the cases involving that agency.
Even if each of the scores of federal courts throughout the country made an array of
agency litigation materials publicly available on their websites, and even if each of those

30

44 U.S.C. § 3502(a)
See GovInfo, https://www.govinfo.gov/app/collection/uscourts (last visited May 26, 2020) (collecting all federal
court opinions but no other litigation materials).
32
See Andrew T. Solomon, Making Unpublished Opinions Precedential: A Recipe for Ethical Problems and Legal
Malpractice?, 26 MISS. C. L. REV. 185, 209 (2006) (observing that “[m]any court websites have relatively primitive
search engines” and that many of them “do not allow Boolean searching, but rather [operate on] some
unsophisticated form of key word searching”).
31

9

websites made it possible to reliably identify all the cases in a particular court involving a
particular agency, checking each website regularly would take considerable time. For those
reasons, among others, court websites won’t always be adequate resources for members of the
public looking for agency litigation materials.
C.

PACER

The main way the Federal Government makes agency litigation materials — including
briefs, pleadings, settlements, and court opinions — available to the public is through PACER,
which lets users access and download PDFs of documents filed in federal courts across the
country.33 PACER’s supporters often hail it as a massive achievement in transparency,34 and in
many respects they’re right. But even PACER’s supporters acknowledge its shortcomings,35 a
few of which limit its usefulness as a tool to study and monitor agency litigation materials.
There are transaction costs to using PACER. For one, people who want to use PACER
must first register for an account. That requires, among other things, that they provide credit card
and billing information, which not everyone is willing or able to do.36 Once a person completes
the registration process, he or she may use PACER to search for court filings, but only at the cost
of $.10 per page the person accesses.37 Even if a search turns up no results, PACER still charges
the user a dime. There are price limits, such as a maximum charge of $3.00 per document,38 and

33

See https://www.pacer.gov/.
See, e.g., Lynn M. LoPucki, Court-System Transparency, 94 IOWA L. REV. 481, 484 (2009) (praising PACER as
“the world’s most transparent court system”).
35
See Dru Stevenson & Nicholas J. Wagoner, Bargaining in the Shadow of Big Data, 67 FLA. L. REV. 1337, 1359–
60 (2016); Adam Cohen, The Media That Need Citizens: The First Amendment and the Fifth Estate, 85 S. CAL. L.
REV. 1, 70 (2011).
36
See id.; see also David S. Ardia, Privacy and Court Records: Online Access and the Loss of Practical Obscurity,
2017 U. ILL. L. REV. 1385, 1452 (2017) (noting privacy concerns associated with providing credit card information
in exchange for accessing court records).
37
See PACER, PACER USER MANUAL FOR ECF COURTS 4, https://www.pacer.gov/documents/pacermanual.pdf
(last updated January 2020).
38
Id.
34

10

fee waivers in a narrow set of circumstnaces, such as when a user accumulates $30 or less in
search fees in a calendar quarter.39 But case filings are often split into batches, so that viewing all
the documents accompanying a filing can run more than $100. And the way filings are sorted
and labeled on court dockets means it’s seldom clear what information a given document
contains. So users are often required to click through and pay for dozens of documents in a single
filing before they find what they’re looking for.
On top of that, PACER’s search functionality can make it difficult to find cases involving
particular agencies. As an example, a person interested in identifying ongoing cases to which the
United States Fish and Wildlife Service (FWS) is a party could search for “Fish and Wildlife” in
PACER’s Case Locator feature, but that search would only pull up a fraction of the total cases
involving FWS.40 The same would be true if the person searched for “United States Fish and
Wildlife Service”41 or “U.S. Fish and Wildlife Service.”42 To come close to identifying all of the
cases to which FWS is a party, a person would have to search for all three of those terms, plus
the names of FWS’s recent directors. Even after conducting those searches, moreover, the person
would still have to scroll through and eliminate search results involving state fish-and-wildlife
agencies and private entities with phrases like “Fish and Wildlife” in their names.
PACER’s search functionality can also make it difficult to find cases involving specific
statutes, regulations, or types of agency action. If, for instance, someone were interested in cases
about FWS’s listing of species under the Endangered Species Act (ESA), PACER would not
afford that person any way to filter search results to include only cases about ESA listings. The

39

See U.S. Courts, Electronic Public Access Fee Schedule (Dec. 31, 2019), available at uscourts.gov/servicesforms/fees/electronic-public-access-fee-schedule.
40
A PACER search for “Fish and Wildlife” turns up just one result for the first five months of 2020.
41
A PACER search for “United States Fish and Wildlife Service” turns up 18 results for the first five months of
2020.
42
A PACER search for “U.S. Fish and Wildlife Service” turns up 17 results for the first five months of 2020.

11

person’s only option would be to open and review potentially hundreds of documents to sort out
the cases involving ESA listings. The cost and time involved in doing that make PACER an
imperfect way to locate and search agency litigation materials.
D.

Paid legal research services

Paid legal research services, like Westlaw43 and Lexis Advance,44 are the principal
alternatives to PACER. Such services make it easy to search for cases involving specific
agencies and subjects, but they cost significantly more than most private citizens can afford to
spend on legal research.45 Furthermore, paid research services often do not provides access to
certain filings in agency litigation matters. Sometimes those services make available some of the
parties’ briefs and pleadings, but users rarely get access to the full docket.
On top of that, not all paid research services are up to date. It can days before a newly
filed brief or opinion is available on some of them.46 Just like FOIA, federal court websites, and
PACER, therefore, paid research services will not always be a practical solution for ordinary
people looking to access agency litigation materials.
III.

Survey of Agency Litigation Webpages
Agency litigation webpages are a convenient way for people to examine agency litigation

materials. For purposes of this report, an agency litigation webpage is a webpage on an agency’s
website dedicated to systematically cataloging and linking to agency litigation materials from
cases in which the agency has participated and which relate to the agency’s regulatory or
enforcement activities. The documents linked on an agency litigation webpage can include

43

See www.westlaw.com.
See www.advance.lexis.com.
45
A subscription to Lexis Advance, for example, can cost up to $200 per month. See www.lexisnexis.com/enus/smalllawecommerce/.
46
See Thomson Reuters, Know the Difference, at 3 (2013), available at
https://info.legalsolutions.thomsonreuters.com /pdf/wln2/L-373938_v5.pdf.
44

12

pleadings, merits briefs, amicus briefs, court opinions, settlements, and judgments. When
agencies maintain up-to-date, search-friendly litigation webpages, people can visit them and
quickly find important filings in court cases concerning matters of interest. Agency litigation
webpages thus make it easier for people to learn about the law and to hold government
accountable for agencies’ actions.
Several federal agencies already maintain agency litigation webpages.47 Before this
report, however, there was no systematic study of them — where they can be found, what they
contain, and how easy they are to use. This report changes that. It includes a survey of websites
for 25 federal agencies of all stripes — big and small, executive-branch and independent,
regulatory and benefit-oriented, and so forth. The goal was simply to cover a broad and at least
somewhat representative swath of the federal administrative state, with a special focus on
agencies that often find themselves in federal court.
The survey results suggest that most federal agencies do not maintain active agency
litigation webpages. Among those that do, the quality of the litigation webpages varies
appreciably. Some contain vast troves agency litigation materials, others much more limited
collections. Some are updated regularly, others only sporadically. Some are easy to locate and
search; others are not. In short, there appears to be no standard practice for publishing and
maintaining agency litigation webpages.
This report presents the survey’s results in three tables. Table 1 shows that most surveyed
agencies don’t maintain an agency litigation webpage. Table 2 shows that, even among agencies
that maintain agency litigation webpages, there is noticeable variation in how easy it is to locate

47

See infra Table 1.

13

and use those webpages. And Table 3 shows that existing agency litigation webpages differ in
the categories of agency litigation materials they cover.
A.

Does the agency maintain an agency litigation webpage?

Table 1 shows which agencies surveyed for this report maintain agency litigation
webpages. It doesn’t identify or evaluate the agencies’ reasons for maintaining or not
maintaining litigation webpages. Suffice it to say there are many reasons an agency might choose
not to maintain a litigation webpage and it would be a mistake to evaluate particular agencies’
choices without more information about what motivated them.

14

TABLE 1
Agency

Litigation Webpage?

Army Corps of Engineers

No

Bureau of Land Management

No

Bureau of Prisons

No

Consumer Finance Protection Bureau (CFPB)

Yes

Commodity Futures Trading Commission
(CFTC)
Citizenship and Immigrations Services

Yes

Department of Commerce

No

Department of Defense

No

Department of Education

No

Department of Energy

No

Department of Health and Human Services

No

Department of the Interior

No

Department of Justice (DOJ)

Yes

Department of Labor (DOL)

Yes

Department of Transportation

No

Environmental Protection Agency (EPA)

Yes

Equal Employment Opportunity Commission
(EEOC)
Federal Aviation Administration

Yes

Food and Drug Administration

No

Federal Trade Commission (FTC)

Yes

Immigrations and Customs Enforcement

No

Internal Revenue Service

No

National Labor Relations Board (NLRB)

Yes

Occupational Safety and Health
Administration
Securities and Exchange Commission (SEC)

No

No

No

Yes

For purposes of this report, a webpage maintained by an agency is an agency litigation
webpage if it provides links to at least one class of agency litigation materials — such as case
summaries, pleadings, briefs, settlements, or court opinions — from at least five lawsuits filed in
the last decade. Webpages that don’t satisfy that criterion don’t materially advance either reason
15

this report gives for making agency litigation materials publicly available online.48 Thus, the
report does not treat them as agency litigation webpages.
Just nine of the 25 agency websites surveyed for this report have a webpage satisfying
this report’s definition of a litigation webpage. The other 16 agencies’ websites all contain some
recent litigation materials, but nothing like a comprehensive collection of them. Litigation
materials on those websites tend to be scattered, with no discernible link between them, making
them difficult to catalog and search. Because the materials are not systematically collected or
arranged on a single webpage, they do not comprise the sort of informational clearinghouse that
an agency litigation webpage does.
B.

How easy is it to find and use the agency’s litigation webpage?

Table 2 contains information about how easy it is to find and use the nine agency
litigation webpages identified by this report.
TABLE 2
Agency
CFPB

Search Engine and
Litigation Keywords
Yes

Litigation Webpage
Link in Menu Bar
Yes

Filtering Options on
Litigation Webpage
Yes

CFTC

No

Yes

No

DOJ

Yes

Yes

Yes

DOL

Yes

No

Yes

EPA

Yes

Yes

Yes

EEOC

Yes

Yes

Yes

FTC

Yes

Yes

Yes

NLRB

Yes

Yes

Yes

SEC

Yes

Yes

No

The first column in Table 2 shows whether the search engine on an agency’s website
makes it easy to find the website’s litigation webpage. For purposes of this report, a website’s
48

See supra Pt. I.

16

search engine makes it easy to find a litigation webpage if, when someone uses the search engine
to search for “litigation,” “cases,” “lawsuit,” “briefs,” “amicus,” and “settlement,” the first 20
search results includes at least one link to a litigation webpage. The easier it is to find an agency
litigation webpage, the more useful the webpage is likely to be to the public. Table 2 shows that
it’s easy to find litigation webpages on eight of the nine websites the survey identified as hosting
an agency litigation webpage.
The second column in Table 2 shows whether the menu bar49 on an agency’s homepage
contains a link pointing people toward the agency’s litigation webpage. For purposes of this
report, a menu bar points people toward a litigation webpage if: (1) it includes a link that is
readily identifiable as relating to litigation (for example, a link titled “Enforcement” or “Cases
and Proceedings”); and (2) that link directs website users to a webpage that either is, itself, a
litigation webpage, or that links directly to a litigation webpage. Table 2 shows that, of the ten
agency websites that this report identifies as hosting agency litigation webpages, eight have
menu bars containing links pointing people toward the agencies’ litigation webpages. By making
it easier for people to find agencies’ litigation webpages, such menu bars increase the value of
the agencies’ litigation webpages.
The third column in Table 2 shows whether agencies’ litigation webpages allow people to
filter the websites’ contents according to characteristics besides chronology. Filters can make
webpages more useful by allowing people to quickly identify materials relevant to their interests.
So, for instance, one of the NLRB’s litigation webpages lets users group petitions for review and
applications for enforcement according to the court in which they were filed, the type of

A menu bar is usually a horizontal or vertical bar, usually found on the top or left side of a website’s homepage,
typically containing drop-down menus with links to other pages on the website. Agencies often reproduce the
contents of menu bars at the bottom of their websites’ homepages.
49

17

document involved, the case name, and the case number.50 Likewise, one of FTC’s litigation
webpages allows people to filter case materials according to categories such as mission,51
enforcement type,52 industry,53 type of action,54 competition or consumer protection topic,55 the
court in which a case is pending, and the case name or number.56 Of the nine agencies surveyed
for this report that maintain litigation webpages, seven maintain litigation webpages that include
tools for filtering the webpages’ contents.
C.

What’s on the agency’s litigation webpage?

Table 3 shows what types of agency litigation materials are available from each of the
nine agencies surveyed for this report that maintain litigation webpages.

50

See NLRB, Petitions for Review & Applications for Enforcement, https://www.nlrb.gov/casesdecisions/decisions/appellate-court/petitions-review-applications-enforcement (last visited May 28, 2020).
51
Users can filter search results to show either cases involving competition or cases involving consumer protection.
52
Users can filter search results to show cases from any of five enforcement categories: civil penalty cases under
§ 7A of the Clayton Act; civil penalty cases arising out of alleged order violations; cases concerning alleged
violations of Part II of an FTC consent order; cases arising out of administrative complaints; and cases involving
federal injunctions.
53
Users can filter search results according to categories like “Alcohol,” “Energy,” and dozens of others.
54
Users can filter search results to show federal cases, administrative cases, or process-enforcement cases.
55
Users can filter search results according to categories like “Merger,” “Nonmerger,” “Section 5,” “Advertising and
Marketing,” “Credit and Finance,” and many others, including subcategories.
56
See FTC, Cases and Proceedings, https://www.ftc.gov/enforcement/cases-proceedings (last visited May 28, 2020).

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TABLE 3
Agency

Court
Opinions

Pleadings

Merits
Briefs
(Trial)

Merits
Amicus
Briefs
Briefs
(Appellate)

CFPB

No

Yes

No

No

No

Settlements
and
Consent
Orders
Yes

CFTC

Yes

Yes

No

No

No

No

DOJ

Yes

Yes

Yes

Yes

Yes

Yes

DOL

No

No

Yes

Yes

Yes

No

EPA

Yes

No

No

No

No

Yes

EEOC

No

No

No

Yes

Yes

No

FTC

Yes

Yes

Yes

Yes

Yes

Yes

NLRB

Yes

No

Yes

Yes

Yes

No

SEC

Yes

Yes

No

Yes

Yes

No

The agency litigation materials most commonly available on agency litigation webpages
are court opinions, appellate-court merits briefs, and amicus briefs. The agency litigation
materials least commonly available on agency litigation webpages are trial briefs and settlements
and consent decrees. Only the DOJ and the FTC make all six categories of agency litigation
materials available on their litigation webpages.
IV.

Exemplar: The FTC
The FTC maintains a pair of litigation webpages — one titled “Cases and Proceedings,”57

the other titled “Amicus Briefs”58 — that draw hundreds of thousands of unique page views
annually. Both webpages are easy to find, easy to use, and comprehensive. Anyone interested in
seeing what an especially useful agency litigation webpage looks like can find out by visiting the
FTC’s two litigation webpages, which are among the Federal Government’s best.

57
58

See FTC, Cases and Proceedings, https://www.ftc.gov/enforcement/cases-proceedings (last visited May 30, 2020).
See FTC, Amicus Briefs, https://www.ftc.gov/policy/advocacy/amicus-briefs (last visited May 30, 2020).

19

A.

The Cases and Proceedings webpage

The Cases and Proceedings webpage collects and organizes litigation materials from
cases to which the FTC is a party. To find the Cases and Proceedings webpage, a user can either
type “cases” into the FTC website’s search engine or click on the “Cases and Proceedings” link
under the “Enforcement” tab in the menu atop the FTC website’s homepage. The screenshot
below shows part of the FTC’s homepage, including the search engine in the top right corner and
the Cases and Proceedings link immediately below the Enforcement tab.

20

The FTC’s Cases and Proceedings webpage contains links to materials from all the
FTC’s cases, including those at the agency level and in federal court. To distinguish court cases
from agency proceedings, the Cases and Proceedings webpage identifies each matter as either
Federal (for court cases) or Administrative (for agency-level proceedings).
The Cases and Proceedings webpage also contains several filtering options so users can
find the content that most interests them. Users can, for example, limit their search results to
merits briefs by clicking the link to the webpage titled “Merits Briefs.” Or they can limit their
search results to federal court cases involving “Process Enforcement” by clicking the link to the
webpage titled “Process Enforcement.” They can also use the Cases and Proceedings webpage’s
advanced filters option to identify cases based on characteristics like the mission, industry, topic,
enforcement type, or type of action at issue; the court in which a case is pending; and the case
name or number. The screenshot below shows part of the Cases and Proceedings webpage, with
several filtering options visible in the bottom left corner.

21

22

If users are interested in cases on a topic that isn’t covered by the available filtering
options, they can often plug the topic into the webpage’s search function and find whatever
materials are available on that topic. Thus, users interested in the FTC’s actions to enforce “Do
Not Call” requirements can find all cases relating to that topic by typing “Do Not Call” in the
website’s search function, then using the website’s “Filter by content type” function to show
only court cases. Likewise, users interested in a particular type of documents can search for cases
involving that type of document. If, for example, users want information on settlements, they can
simply click the webpage’s “Case Document Search” link, enter “Settlement” in the box marked
“Document title,” and thereby find links to all documents with “settlement” in the title, along
with links to the cases in which those documents were filed.59
Users interested in learning more about a specific case need only click on the case’s
name, at which point the webpage will direct them to the case’s webpage. The webpage for each
case contains an impressive range of documents related to the case, including all the agency’s
filings in the case, a timeline, a summary of the litigation, and a note on the case’s status.
Sometimes it even includes FTC documents relevant to the dispute.60 The webpage for each case
also contains other information for identifying the case, including the civil action number, the
court where the case is pending, and the FTC matter and file number. A representative case
webpage is below.

59

See FTC, Case Document Search, Settlement, https://www.ftc.gov/enforcement/cases-proceedings/casedocument-search?title=&field_document_description=settlement (last visited June 2, 2020).
60
See, e.g., FTC, Soundboard Association, https://www.ftc.gov/enforcement/casesproceedings/p172100/soundboard-association (last visited May 30, 2020) (including a link to the letter at issue in the
litigation).

23

24

B.

The Amicus Briefs webpage

Users can easily find the FTC’s amicus briefs, too. A visitor to the FTC’s website can
either type “amicus” into the website’s search feature or click on the “Policy” tab at the top of
the site and then click on the link for amicus briefs on the resulting webpage. Either way, the
visitor will end up at the FTC’s “Amicus Briefs” webpage, which collects and chronologically
organizes all the FTC’s amicus briefs. Each brief comes with a summary of its contents, the
name and number of the case in which the brief was filed, the court where it was filed, and the
date it was filed. A screenshot of the Amicus Briefs webpage is below.

25

26

People who visit the Amicus Briefs webpage can filter results by searching for keywords,
or cases in specific federal courts, or cases that were filed in specific time periods. Together with
the Cases and Proceedings webpage, the FTC’s Amicus Briefs webpage gives visitors access to
an impressive array of materials, all presented in a useful and easily searchable manner.
V.

Potential Objections and Some Answers to Them
Just because some agencies maintain robust agency litigation webpages doesn’t

necessarily mean all agencies can or should. But it does invite questions about why more
agencies don’t make more of their litigation materials available on their websites. The two most
intuitive responses to such questions are: (1) some agencies’ litigation materials are already
available on DOJ’s website; and (2) the time, money, and effort required to maintain agency
litigation webpages isn’t worth it.
Neither response is entirely satisfactory on its own. The first assumes people know
enough about the Federal Government’s structure to recognize that DOJ often litigates on behalf
of other agencies. That assumption might be unwarranted given how little most people know
about the Federal Government.61 Indeed, it’s unlikely most trained lawyers can accurately
identify which agencies possess independent litigating authority.62 And besides, just because
some agencies’ litigation materials are available on DOJ’s website is no reason those agencies’
websites should not also provide access to the materials. If anything, DOJ’s efforts at archiving

See Annenberg Pub. Pol’y Ctr., Americans Are Poorly Informed About Basic Constitutional Provisions 2,
https://cdn.annenbergpublicpolicycenter.org/wp-content/uploads/2017/09/Civics-survey-Sept-2017-complete.pdf
(last visited June 3, 2020) (survey showing that most Americans know little about the Federal Government’s
structure).
62 See JENNIFER L. SELIN & DAVID E. LEWIS, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, SOURCEBOOK
OF UNITED STATES EXECUTIVE AGENCIES 106 n.401 (2d ed. 2018) (identifying 31 agencies that have at least some
independent litigating authority).
61

27

and providing access to its litigation materials should make it easier for other agencies to
compile and organize their own litigation materials.
That answer informs part of the second response to the second objection — that
maintaining an agency litigation webpage might be too costly, time consuming, and labor
intensive. In interviews for this report, representatives from several agencies explained that
creating their agencies’ litigation webpages was not too difficult; that maintaining them is
relatively easy; and that the value their agencies derive from the webpages greatly exceeds their
costs.
The NLRB’s litigation webpages operate on a content management system the NLRB
designed more than a decade ago. The system allows NLRB staff to create and maintain
litigation webpages simply by checking certain boxes and entering basic information on the
electronic forms they already fill out as part of the NLRB’s routine document filing protocols.
Nothing in that process requires that NLRB staff be proficient in creating or maintaining
webpages; the content management system automatically ensures that links to new documents
are available on the appropriate webpages. In interviews for this report, NLRB staff remarked
that, thanks to the content management system, creating and updating the NLRB’s litigation
webpages takes just seconds.
The FTC’s agency litigation webpages are created and maintained in much the same way,
although the FTC uses a different content management system for its website. When
Commission staff receive a new document in a litigation matter, they enter basic information on
the FTC’s standard document-intake form. The FTC’s content management system then uses that
information to create links to the document in the appropriate places on the FTC’s website,
including its agency litigation page. The content management system organizes the links

28

systematically, which minimizes the time FTC employees spend updating the Commission’s
litigation webpage. Here, again, creating and maintaining litigation webpages requires essentially
no technological expertise on behalf of the agency personnel responsible for publishing litigation
materials. The hardest part of the process, according to FTC staff, is generating and refining the
list of keywords and categories by which the content management system arranges agency
litigation materials.
This anecdotal evidence does not prove that creating and maintaining an agency litigation
webpage is always easy or cost-effective. An answer to that question will invariably depend on
circumstances unique to each agency. Among other considerations, it will depend on things like
the internal benefits of maintaining an agency litigation webpage; the public’s interest in having
ready access to certain categories of the agency’s litigation materials; the availability and cost of
alternative means of accessing the agency’s litigation materials; the extent to which creating and
maintaining an agency litigation webpage will advance the agency’s mission; the costs to the
agency of creating and maintaining an agency litigation webpage; the nature of the agency’s
litigation portfolio, including the quantity of litigation materials the agency generates each year
and the public’s interest in them; the degree to which an agency’s existing technological capacity
can accommodate the creation and maintenance of an agency litigation webpage; and the risk
that confidential or sensitive information about private litigants will be inadvertently disclosed
on the agency’s litigation webpage.
What the anecdotal evidence shows, though, is that creating and maintaining an agency
litigation webpage is not always difficult or unduly expensive. In at least some cases, creating
and maintaining a litigation webpage involves no more than that agency staff keep filling out the
document intake forms they already use. And the public benefits of an agency litigation webpage

29

can be considerable. Every agency official interviewed for this report emphasized that agency
litigation webpages enhance transparency, improve public understanding of agency activities,
help disseminate important information to people, and do so efficiently and in ways that don’t
divert resources from other agency activities. For those reasons, among others, every agency
official interviewed for this report recommended that agencies create and maintain agency
litigation webpages.
There are also ways to limit the amount of work that goes into an agency litigation
webpage. For instance, agencies can and should be deliberate in deciding which litigation
materials to publish. If laws or legitimate policy concerns make it difficult or risky to publish
litigation materials from certain categories of cases, agencies should feel free to exclude those
types of cases from their litigation webpages. And other categories of cases — like intra-agency
employment disputes and FOIA litigation — often have so little to do with the agency’s
regulatory and enforcement activities that agencies might reasonably omit them from their
litigation webpages. After all, including them will seldom advance the core purposes of a
litigation webpage and might even clutter the webpage in a way that detracts from its usefulness.
Similarly, there are whole categories of filings that agencies don’t need to include in their
litigation webpages because their contents are unlikely to be of interest to the public. Most
notices of attorney appearances fit in this category. So do most motions to compel, subpoenas,
and motions for continuances. Because those types of litigation filings tend not to concern
agencies’ regulatory or enforcement activities, there’s no need to include them on agencies’
litigation webpages. Indeed, including them on litigation webpages could overpopulate the
webpage and thereby make it harder for people to find the agency litigation materials most
relevant to their interests.

30

The bottom line is that creating and maintaining an agency litigation webpage need not
be a herculean endeavor. Agencies can and should tailor the process to their own unique
circumstances so that the public gets useful information without stretching the agencies’
resources to their breaking point.
VI.

Recommendations
Based on the findings in this report, here are some recommendations about agency

litigation webpages.
Recommendation 1: Where resources permit, agencies should maintain webpages
compiling and organizing links to all merits briefs, amicus briefs, judicial opinions, judgments,
settlements, and consent decrees filed in court cases in which the agencies participate and which
pertain to the agencies’ regulatory and enforcement functions.
This recommendation reflects the essence of this report: Agency litigation pages can be a
valuable way to share useful information with the public. Interviews conducted for this report
suggest that it’s possible to create robust, comprehensive litigation webpages without imposing
excessive costs or other burdens on agency personnel. To better inform people, agencies should
strive to publish as many litigation materials as they can. If agencies are reluctant to post all the
litigation materials they generate, however, they can adopt principled policies limiting the types
of litigation materials they post to their litigation webpages. What matters most is that agencies
create and maintain webpages providing people with access to the litigation materials most
germane to the agencies’ regulatory and enforcement missions.
Recommendation 2: Agencies should display links to their litigation webpages on the
menus and indexes on their websites’ homepages. The links should have labels making clear that
they relate to litigation.

31

Litigation materials are easiest to access on websites that display visible, descriptively
titled links to litigation webpages in their menus or site indexes. Links labeled “Litigation,”
“Advocacy,” or “Cases and Proceedings” often allude to litigation and thereby notify people that
clicking on them will probably lead them to agency litigation materials.
Recommendation 3: Agencies should assign litigation-focused keywords to their
litigation webpages to make the webpages easier to find using the agencies’ websites’ search
functions.
Search engines can also be useful tools for locating agency litigation webpages. That is
especially true if agencies program the search engines to turn up litigation webpages when users
enter litigation-focused search terms like “lawsuits,” “cases,” “briefs,” and “settlement.”
Agencies that create or maintain litigation webpages should ensure that their search engines
make those webpages easy to find by tagging them with litigation-focused keywords.
Recommendation 4: Agency litigation webpages should offer filtering and advanced
search options so that users can identify with greater precision the records or types of records
for which they are looking.
To simplify users’ searches for litigation materials and give advanced users more options
for narrowing and refining their searches, agency litigation webpages should offer filtering and
advanced search options related to litigation. Most agency litigation webpages already allow
people to search by specific words or phrases or by date. Litigation-specific options, however,
allow for more efficient and productive searches. Agencies should, for instance, consider
allowing users to filter search results according to the subject matter of the litigation, the court in
which a case was filed, and the type of document the user wants to review.

32

Agencies’ programmatic and litigation idiosyncrasies would likely dictate the varied
litigation-specific search and filtering options the agency makes available. For example, agencies
that litigate a wide array of subjects should employ a more robust set of litigation-specific search
and filtering options than should agencies that seldom litigate or that litigate only a narrow range
of case types. As with all recommendations in this report, agencies can and should tailor their
approaches to their unique circumstances.

33