ACUS recommends best practices to enhance public participation in policymaking by adjudication.
Public participation improves the quality, legitimacy, and accountability of agency decision making. Although public participation in federal agency rulemaking has been extensively studied, the role of the public in federal agency adjudication has received less attention.
A recent report commissioned by the Administrative Conference of the United States (ACUS) sheds light on how public engagement can improve agency adjudicative proceedings and decisions, and an ACUS recommendation that relies on the report offers agencies best practices for such engagement.
Agency adjudication is often perceived as involving issues of interest only to the formal parties to the proceeding. Agency adjudications, however, can—and often do—have a broader impact. Whether it is a decision to revoke a license, approve a major public infrastructure project, or set a new precedent in a public benefits determination, agency adjudications can affect the interests of, or otherwise be of concern to, persons beyond the formal parties to the adjudication.
Under the Administrative Procedure Act (APA), “interested persons” may participate in agency adjudications “so far as the orderly conduct of public business permits.” The report commissioned by ACUS explores when such public participation may be appropriate and how agencies should provide for it. The report examines the institutional structures, practices, and procedures used by federal agencies to solicit and support informed public participation in adjudicative proceedings and proposes strategies for enhancing public participation.
Agency adjudication is a vast and multifarious enterprise with different levels of procedural formality. In recognition of these significant variations, the report to ACUS developed a conceptual framework to categorize adjudicative proceedings and provide guidance on the varying levels and forms of public participation that are generally appropriate for each category.
Category A involves routine claim or dispute resolution and includes enforcement actions, benefits determinations, and standard disputes between private parties. Ambitious efforts to include the public in these proceedings are generally unnecessary and may be inappropriate unless the case is likely to establish new precedent or result in changes to existing policy, in which case it may be useful to consider amicus briefs, allow intervention by interested parties and designated representatives of the public, and perhaps solicit public comments or the opinions of unaffiliated experts.
Category B involves grants or denials of permission and includes rulings on applications for permits, licenses, and waivers. And Category C involves discretionary policy determinations regarding specific public projects that are non-adversarial, such as the selection of the route for an interstate highway. Public participation will often be vital when agencies make individualized determinations in these types of proceedings. In addition to amicus briefs and intervention, public notice and comment is generally a crucial tool for facilitating meaningful public engagement with such decisions. And agencies can go further in appropriate circumstances by undertaking targeted efforts to include unaffiliated experts and stakeholders who have not typically participated by drawing on existing tools that have proven useful in rulemaking, such as focus groups, listening sessions, and federal advisory committees.
Relying on this general framework, ACUS adopted Recommendation 2025-3, Public Participation in Agency Adjudication, at its June 2025 plenary session. The recommendation builds on prior ACUS recommendations by identifying best practices for public participation in agency adjudications in light of technological advancements and evolving methods for participating in agency decision making.
The recommendation encourages agencies to provide opportunities for public participation in their adjudications when appropriate to do so. Given each agency’s own circumstances and variations in the purpose, complexity, governing law, and degree of public interest in their administrative adjudications, what is appropriate for one agency may not be appropriate for another.
As a general matter, ACUS recommends that agencies allow public participation in adjudications if agency policy decisions will be significantly influenced by general facts not specific to the parties—sometimes known as legislative facts—and if adjudications have the potential to substantially affect the broader public, common in Category B and Category C adjudications. In addition to offering opportunities for intervention, participation as amicus curiae, and public notice and comment, the recommendation encourages agencies to solicit public input early in the adjudicative process through various methods, including public forums, focus groups, requests for information in the Federal Register, and virtual or hybrid public meetings. In Category A adjudications, where public participation is often less valuable, ACUS suggests that agencies allow interested persons to intervene as parties or submit amicus briefs in cases that involve important policy decisions or unusually complex or novel issues of law, fact, or discretion.
ACUS also emphasizes the importance of targeted outreach to potentially affected members of the public who may not otherwise participate and to groups that might represent otherwise unrepresented interests and views. The recommendation therefore notes the importance of communication, education, and transparency in this context, recommending that agencies publicize information about administrative adjudications in which there are opportunities for public participation, alert potentially affected members of the public that their interests may be at stake, educate the public on how to participate effectively, and provide advance notice of participation opportunities through means that are likely to reach interested persons who do not read the Federal Register.
By providing the public with meaningful opportunities to participate in agency adjudication, agencies can gather more comprehensive information and views, enhance the democratic legitimacy and accountability of their decisions, and increase public support for and confidence in their actions. Understanding the different types of agency adjudication and the best practices for facilitating and enhancing public participation in different contexts can provide valuable guidance to agencies when they seek to achieve the benefits of public participation in agency adjudication while preserving the rights of private parties and streamlining the potential cost and time of seeking public input.
The views expressed in this essay are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.
This essay is part of a series, titled “Strengthening Agency Processes Through Transparency and Engagement.”
