## Facts

- John Cervase, a practicing attorney proceeding pro se, sued the Office of the Federal Register seeking to compel publication of a more detailed “analytical subject index” to the Code of Federal Regulations (CFR).
- At the time, the CFR comprised roughly 120 volumes, and the Office had provided only a 164-page table of contents rather than a subject index Cervase considered usable.
- Cervase alleged that 44 U.S.C. § 1510 required a “general index” to the entire CFR and directed the Office to “prepare and publish” authorized indexes.
- Cervase also invoked FOIA’s indexing and public-access policies, asserting that inadequate indexing impaired public ability to identify applicable regulations.
- He claimed injury to his ability, as an attorney, to locate and apply federal regulations for himself and clients.
- The district court granted the government’s Rule 12(c) motion for judgment on the pleadings, reasoning that mandamus was unavailable, the Office was not a suable entity, and Cervase lacked standing; it also refused to accept Cervase’s proposed amended complaint.
- Cervase appealed.

## Issues

1. Whether judgment on the pleadings was proper where the complaint alleged a statutory indexing duty, noncompliance, and practical injury from inadequate CFR indexing.
2. Whether Cervase’s alleged inability to identify applicable regulations stated a sufficient injury for standing at the pleading stage.
3. Whether dismissal was warranted based on mandamus unavailability or the asserted non-suability of the Office of the Federal Register.
4. Whether the district court erred in refusing leave to amend to cure potential pleading or party defects.

## Decision

- The Third Circuit reversed the judgment on the pleadings and remanded for further proceedings.
- The court held the district court’s summary Rule 12(c) disposition was improper on the pleadings presented.
- The court concluded that standing, suability, and the availability and form of relief could not be resolved against Cervase through the cursory Rule 12(c) process used.
- The court held it was error to refuse Cervase leave to amend at this early stage.
- The court did not decide whether the Federal Register Act or FOIA ultimately required the specific “analytical subject index” Cervase sought.

## Legal Principles

- Rule 12(c) judgment is appropriate only when, accepting the nonmovant’s well-pleaded allegations as true, no material issue remains and the movant is entitled to judgment as a matter of law.
- Standing should not be rejected on the pleadings where the plaintiff alleges a concrete, work-related impairment tied to the asserted statutory duty, absent clear deficiency.
- Where the existence and scope of an alleged statutory duty are unresolved, it may be premature to rule out mandamus-type relief at the pleadings stage.
- If a defendant’s suability is uncertain or curable by naming an appropriate officer, dismissal without allowing amendment is generally improper.
- Leave to amend under Rule 15(a) should be freely given when justice so requires, particularly where identified defects may be curable.

## Conclusion

The Third Circuit reinstated Cervase’s action because the district court disposed of it too summarily on the pleadings and prematurely rejected standing, defendant identity, and potential relief, and it improperly denied leave to amend; the case was remanded for fuller consideration of the statutory duty and available remedies.


Cervase v. Off. of the Fed. Reg., 580 F.2d 1166 (3d Cir. 1978)