ACUS adjudication committee debates expanding public participation while guarding against ex parte risks

The Administrative Conference of the United States' Committee on Adjudication met to review a draft recommendation and consultants' report advising agencies on when and how to expand public participation in agency adjudication. Consultants Dean Michael San Ambrogio and Professor Glenn Slushevsky said their research—surveys of dozens of agencies plus interviews—identified contexts where nonparty input can aid decisions and where established tools (amicus briefs, intervention, focused outreach) may be appropriate. "ACUS hasn't done anything focused on public participation in adjudication since 1971," San Ambrogio said, framing the project as an update to long-standing practice.

The consultants proposed a conceptual framework dividing adjudications into categories—routine claim/dispute resolution, grants/permits, and discretionary policy decisions—and suggested matching participation tools to each. "Public participation will often be vital when agencies make individualized determinations in these types of adjudicatory proceedings," Slushevsky said, noting options such as amicus briefs, intervention, targeted notice and comment, and listening sessions. He and San Ambrogio described an approach they called (in the draft) "deliberation alongside adjudication," in which separate engagement activities could generate information that agencies might incorporate into adjudicative records "in appropriate circumstances."

Several committee members welcomed the effort but pressed for clearer limits. Jack Spearman raised a persistent concern about ex parte communications, saying the draft language on deliberations "raised an alarm bell of ex parte communications" and urged an explicit disclaimer that the committee was not addressing when hearings should be open to the public. Members discussed carving the draft so that more ambitious engagement would be recommended primarily for early or informal stages, permitting and licensing contexts, or proceedings likely to establish precedent—not routine, closed record reviews.

Wendy Blake and others underscored constraints at the appellate/record-review level: "we wouldn't allow you to add anything to the administrative record unless it fell within the appropriate exceptions," Blake said, urging language that recognizes administrative-record rules and other legal limits. Members debated whether to keep or remove language suggesting notice-and-comment processes in adjudications and agreed to narrow recommendations to interventions and amicus opportunities where appropriate.

Practical mechanics were also debated. Committee members discussed how agencies might solicit amicus briefs or permit expanded intervention in precedent-setting cases, and whether agencies should review or revise their definitions of "interested members of the public." Examples were cited: FERC's pre-filing process was mentioned as an analogous mechanism for channeling early public input into later decisionmaking. Members noted that agencies already vary widely (the Nuclear Regulatory Commission was cited for a narrower intervention standard) and recommended flexible language—factors to consider rather than a fixed test—so agencies could adapt recommendations to their procedures.

The Paperwork Reduction Act (PRA) emerged as a practical limit on some outreach (surveys, focus groups). Members discussed OIRA guidance and generic clearances as a path to reduce PRA obstacles for routine public-engagement activities; consultants said their report cites an OIRA memorandum on generic clearances and PRA exclusions that could support such guidance.

The committee did not take formal votes. Staff and the committee-on-style were asked to integrate the edits discussed—especially clearer preamble caveats about scope and explicit references to legal constraints on ex parte communications and the administrative record—and circulate a revised draft. The committee scheduled its next meeting for April 15 at 1:00 p.m.

The outcome: substantive discussion and substantial drafting remaining. The committee's direction was to preserve the draft's focus on targeted participation (amicus briefs, intervention, outreach) while clarifying legal boundaries and operational guidance; the group deferred final wording to staff and committee-on-style for the next meeting.