Constructive Notice through Federal Register

Brien Roche

The Federal Register is an official publication of the U.S. Government.  It in effect is the government’s newspaper.  By “newspaper” I mean it is the government’s way of circulating to the general public things that it deems to be of interest to the federal government and potentially to certain persons.  

The Federal Register is comprised of millions of pages.  It is published by the Government Printing Office.  Those items that are published in the Federal Register may constitute constructive notice. In particular to those people that are subject to or affected by the content of it. 

Constructive Notice Through Federal register

44 U.S.C. § 1507 says that “Unless otherwise specifically provided by statute, filing of a document, required or authorized to be published by § 1505 of this title, except in cases where notice by publication is insufficient in law, is sufficient to give notice of the contents of the document to a person subject to or affected by it”.  

That’s a mouthful.  In other words what it is saying is that unless there is some other statute that says otherwise or unless there is a law that says that notice by publication is insufficient, those things that are required or authorized to be published by 44 U.S.C. § 1505 are sufficient to constitute notice of the content of the document.  That notice applies to those persons who are subject to or affected by it.  

That statute is potentially a powerful statute. However it does have some degree of ambiguity associated with it.  In at least one case a federal judge said that publication in the Federal Register does not constitute notice.  That case was Taylor v. Omaha Property and Casualty Insurance Co. 739 F.Supp. 1069 (E.D. Va. 1990).  In that case Judge Hoffman refused to incorporate into a private insurance policy changes published in the Federal Register.  In that instance FEMA had expressly told the carrier that it needed to print and circulate those new policy terms.  That was required in order to make sure that the policyholders received notice of the changes in their flood insurance coverage.  The judge refused to find that the policyholders had constructive notice of those changes.

Constructive Notice-Case Law

There are a host of other cases wherein courts at both the state and federal level have held that publication in the Federal Register does constitute notice.  Wolfson v. U.S., 492 F.2d 1386 (Court of Claims 1974) (In a case under the Tucker Act where the plaintiff’s employer is the real party in interest the Court noted that when regulations are published in the Federal Register, they give legal notice of their contents to all who may be affected thereby.); One Hour Cleaners v. The Industrial Claims Appeal Office of the State of Colorado, 914 P2d 501, 504 (Colo Ct. App. 1995 ) (In workers compensation appeal of denial of medical coverage for diagnostic study, Court was required to take judicial notice of Medicare coverage for the study as published in the Federal Register.).

Also see Pease v. Zazza, 295 NW2d 43,48 (S.Ct. Iowa 1980) (Safety standards published in Federal Register shall be judicially noticed in this tort action involving a ditch cave-in.); Hadley v. Kellogg Sales Co., 243 F.Supp.3d 1074.1087 (N.D. Cal 2017) (In this false advertising claim the Court took judicial notice of food labeling documents in the Federal Register noting that the content of the Federal Register shall be judicially noticed.)

Therefore where it may be applicable, attention needs to be paid to the Federal Register. It is a powerful instrument of notice.  

Call, or contact us for a free consult. Also for more info on constructive notice through federal register see the Wikipedia pages. Also see the post on this site dealing with notice issues.