Chapter 3
Part I
Informal Adjudications
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We have been talking about informal
adjudications
Most adjudications are informal
Goldberg hearings are the most structured
Matthews shows that they may be on paper
until the appeals
Can be as simple as talking to the principle
before getting suspended
Contrast with Federal Trials
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Article III judges in the federal system
 What are the protections for these judges?
 Can they be told what to do?
Are the attorneys for the parties independent of
the judge?
How are ex parte contacts handled?
Are Judges supposed to know the subject matter?
What goes in the record?
Formal Adjudications
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These are modeled on civil trials
They are defined in the APA
Requirements for Formal Adjudications
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Separate prosecuting and adjudication
functions, and no ex parte contacts with the
decisionmaker - 556(d)
An agency must allow such cross-examination
at the hearings as "may be required for a full
and true disclosure of the facts" - 556(d)
The hearing must be conducted by an ALJ who
is hired and assigned to cases according to set
standards
Attorney's Fees
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If the private party wins and the agency
position was not substantially justified, the
party can recover attorney's fees under the
Equal Access to Justice Act
Unusual, but it happens
Important to remember
Cost of Formal Adjudications
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Why do these requirements increase the
time and cost of adjudications?
 Who can be a party?
 How is this different from a trial?
They are only used when they are
specifically required by Congress
What language triggers a formal
adjudication?
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554(a) - "adjudication required by statute to
be determined on the record after
opportunity for an agency hearing"
Nuclear Power Plant Regulation
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Originally regulated by the Atomic Energy
Commission
Charged with both regulation and promotion
of nuclear power
Regulation was split off to the Nuclear
Regulatory Commission because of
conflicts of interest
Important administrative law battle ground
Why are Nuclear Power Plants
Controversial?
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What do they use as fuel?
What else is this used for?
What if it gets into the environment?
What happened at Chernobyl?
What would an accident like this mean near
a US city?
What does NIMBY mean?
Who Pays if there is an Accident?
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Price-Anderson Act
 Nuclear Energy Institute
 Mothers for Peace
Who really pays if there is a huge accident?
What are the advantages of nuclear
power?
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Why has France pushed for 50% nuclear
power?
What about the environment if there is no
accident?
What do we do to prevent accidents like
Chernobyl
What do you think?
Who should decide?
What type of Agency Action is Nuclear
Plant Licensing?
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What factors do we look for?
City of West Chicago v. NRC
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What did Kerr-McGee process in West
Chicago?
What had piled up?
Why did it pile up?
Disposal of Nuclear Waste
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Where do we dispose of nuclear power plant
waste in the US?
What has stopped the development of a
central depository at Yucca Mountain?
What is the impact on the nuclear power
industry?
Is this a smart strategy for stopping nuclear
power?
What was the Hearing About?
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KM wants to tear down some buildings and
receive and store more stuff on the plant site
What happens if they cannot do this?
Is this the right long term answer?
Why do they want to do this?
What act Provided for a Hearing?
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The controlling act, The Atomic Energy Act,
requires a hearing
Why do KM and the NRC want an informal
hearing?
Can the question be resolved by looking at the
NRC regs which only require an informal hearing?
What else controls?
What does the AEA Say?
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"the Commission shall grant a hearing upon
the request of any person whose interest
may be affected by the proceeding, and shall
admit any such person as a party to such
proceeding."
Do the Magic Words have to be in the
Statute?
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What do you look for?
Congress must clearly indicate its intent to
trigger the formal, on-the-record hearing
provisions of the APA. ... We find no such
clear intention in the legislative history of
the AEA, and therefore conclude that formal
hearings are not statutorily required for
amendments to materials licenses.
What about Previous Hearings on
Reactors?
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Court says it is not sure they were required,
but even if they were, that is not precedent
here.
What does the City Claim are its Liberty and
Property interests?
Does the court buy this?
 Why doesn't it matter?
 What due process did the city get?
How was Mathews v. Eldridge used in this
Case?
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What were the costs?
What were the benefits?
Would an oral hearing improve the accuracy of
the process?
What do the city politicians really want, beyond
endless delay?
Another Avenue to Formal Adjudications
Lane v. USDA, 120 F.3d 106 (8th Cir. 1997)
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Statute required hearings but did not say "on the
record" or otherwise refer to the APA.
The court held the hearings were covered by the
APA, since the statute called for formal hearings
and seemed to require that decisions be made on
an exclusive record.
Exclusive record – only the materials from the
hearing.