Citizens Awareness Network, Inc. v. United States

391 F.3d 338 (1st Cir. 2004)


The NRC (D) relaxed its approach for certain types of licensing proceedings. In 1998, D adopted a policy on the conduct of adjudicatory proceedings, committed to expeditious adjudication and urged hearing officers to employ a variety of innovative case-management techniques in order to improve hearing efficiency. D's general counsel drafted a legal memorandum concluding that the Atomic Energy Act did not require reactor licensing hearings to be on the record and, accordingly, that D had the option of replacing the existing format with a truncated regime. D published a notice of proposed rulemaking on April 16, 2001, suggesting a major revision of its hearing procedures. D took the position that section 189 of the Atomic Energy Act, 42 U.S.C. § 2239, does not require reactor licensing proceedings to be on the record. D then published a final rule, along with a response to the comments that the proposed rule had generated. The final rule replicated the proposed rule. The statement of considerations for the final rule reiterated the Commission's view that reactor licensing hearings may be informal. The new rules do not provide for traditional discovery. Instead, parties in hearings governed by subpart L are required to make certain mandatory disclosures regarding expert witnesses, expert witness reports, relevant documents, data compilations, and claims of privilege. Under subpart L, the presumption is that all interrogation of witnesses will be undertaken by the hearing officer, not the litigants. Parties are allowed to submit proposed questions in advance of the hearing, but the presiding officer is under no compulsion to pose them. Parties are not allowed to submit proposed questions during the hearing unless requested to do so by the presiding officer. Cross-examination is not available as of right, although a party may request permission to conduct cross-examination that it deems 'necessary to ensure the development of an adequate record for decision.' A party seeking leave to conduct cross-examination must submit a cross-examination plan, which will be included in the record of the proceeding regardless of whether the request is allowed. Ps claim the new rules do not comply with the APA's requirements for on-the-record adjudication and, therefore, cannot stand.