At the hearing Childers testified that his complaints about his performance evaluation concerned "personal integrity" issues such as the truth or falsity of a comment by his supervisor that Childers took for his exclusive use a tool that was meant to be shared. Childers admitted that he was transferred from the area involved in the February 1996 performance evaluation to the refuel floor during a plant-wide reorganization that was initiated by a new superintendent and that involved 90% to 95% of all technicians and supervisors. Childers admitted that he was an experienced health physics technician with experience on the refuel floor, but asserted that CP&L expected him to fail on the refuel floor because the pace on the refuel floor was more hectic than he was used to and his experience on the refuel floor was limited. Childers also testified that he believed that safety concerns he expressed about scheduling problems on the refuel floor and about his personal exposure to radiation one day in June 1996 contributed to CP&L's decision to fire him.

   After an investigation, the Wage and Hour Division of the Employment Standards Administration of the Department of Labor concluded that Childers had been terminated due to unsatisfactory job performance and not in retaliation for safety complaints. Childers disputed this finding, and his claims were referred for an administrative law hearing. 29 C.F.R. §24.5.

   There was no support in the record for Childers' theory that his complaints about scheduling problems possibly linked to safety risks on the refuel floor influenced the company to fire him. Childers himself testified that he made the complaints to a supervisor who probably took credit for raising the issue with others and did not reveal that the idea originated with Childers. Moreover, no one involved in the decision to terminate Childers knew he had expressed concerns about safety on the refuel floor. Thus, the ALJ concluded, Childers did not make even a preliminary showing that CP&L discharged him "because" of this activity. 1997-ERA-32 @ 11; 42 U.S.C.A. §5851(a).

   The fact that Childers expressed concern about four months before his discharge that his personal radiation dosage was higher than that of some other workers (albeit within legal levels) played no role in his termination. Childers' radiation dosage came down after that, and CP&L proved by clear and convincing evidence that the individuals who decided to fire Childers did so solely because of Childers' poor job performance on two separate occasions. 1997-ERA-32 @ 12.

   Moreover, the ALJ pointed out, Childers was not fired until his second significant failure to perform basic job functions; the people who supposedly "set him up" for failure were the same people who decided to give him a second chance after the first incident. Id. @ 13.

A. Stare decisis

   Adherence to decisional law promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. "Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right." Burnet v. Coronado Oil & Gas Co., 258 U.S. 393, 406, 52 S.Ct. 443, 447 (1932) (Brandeis, J., dissenting). At the same time, however, stare decisis is not an inexorable command; rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision." Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451 (1940). "[W]hen governing decisions are unworkable or are badly reasoned, '[the Supreme Court] has never felt constrained to follow precedent.'" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609 (1991) (internal citation omitted). The reasons for reversing an earlier ruling are always sui generis, but if a useful generalization can be made, it is that "[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved. The opposite is true in cases . . . involving procedural and evidentiary rules." Payne, 501 U.S. at 828, 111 S.Ct. at 2610 (internal citations omitted); cf. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276, 114 S.Ct. 2251, 2257 (1994) (renouncing earlier conclusion concerning meaning of APA phrase "burden of proof" because first analysis was "cursory" and did not "withstand[] scrutiny").

   Today we revisit the logic of Malpass, conclude that it does not withstand scrutiny, and that availability of subpoenas in §5851 enforcement hearings is sufficiently important to justify withdrawal of the Malpass dictum.

B. Administrative subpoenas are essential tools widely used by agencies responsible for assuring compliance with health and safety legislation

   An administrative subpoena is a formal demand that instructs an individual to produce either testimonial or documentary evidence. "Beginning with the Interstate Commerce Act in 1887, it became a conventional feature of Congressional regulatory legislation to give administrative agencies authority to issue subpoenas for relevant information." Pennfield Co. v. SEC, 330 U.S. 585, 603, 67 S.Ct. 918, 928 (1947) (Frankfurter, J., dissenting). This is because the power to gather information that is material to effectuation of

a statute's goals and purposes is "[t]hat power, without which all others would be in vain." United States v. Morton Salt Co., 338 U.S. 632, 648, 70 S.Ct. 357, 366 (1950). Cf. ICC v. Brimson, 154 U.S. 447, 486, 14 S.Ct. 1125, 1137 (1894) ("[O]f all the modes that could be constitutionally prescribed for the enforcement of the regulations embodied in the interstate commerce act, [the agency power to subpoena witnesses] will protect the public against those who . . . would subject commerce . . . to unjust and unreasonable burdens").

    Administrative subpoena power is generally quite broad, limited only by the Constitution and the requirement that the information being sought is relevant to the agency's statutory purpose, reasonably specific, and not unreasonably burdensome. Morton Salt, 338 U.S. at 642, 652, 70 S.Ct. at 363, 369; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 505 (1946). "To unreasonably hamper the [agency] by narrowing the field of inquiry beyond the requirements of the due protection of rights of citizens will be to seriously impair its usefulness and prevent a realization of the salutary purposes for which [the agency] was established by Congress." Interstate Commerce Commission v. Baird, 194 U.S. 25, 47, 24 S.Ct. 563, 570 (1904).

C. The "express authorization" rule is not relevant to administrative subpoenas

   Yet, Malpass stated that subpoena power must be "explicitly delegated by Congress." And Malpass does not stand alone. Some commentators have also assumed that administrative subpoena power is delegable only by express statutory terms though none has explained the basis for this assumption. See e.g., Edward A. Tomlinson, Discovery in Agency Adjudication, 1971 DUKE L. J. 89, 97 n.19, 141-142; Administrative Conference of the United States, Recommendation No. 87-2, 52 Fed. Reg. 23,629, at 23,632 (June 24, 1987) (Congress should enact omnibus whistleblower legislation that would, inter alia, grant subpoena power to the Secretary of Labor for whistle blowing investigations and hearings, with provision for judicial enforcement); S. REP. NO. 101-349, §IIH(1) (1990) ("The authority to issue enforceable subpoenas is essential if whistleblowers are to have meaningful hearings before the Department of Labor. * * * ACUS and the Department of Labor both recognize the need to address this problem through express statutory language to eliminate any ambiguity about the existence of subpoena power for the Secretary of Labor").

   We must consider, then, the "express authorization" rule in relation to administrative subpoenas. "Express authorization" is a judge-made concept employed when application of traditional rules of statutory interpretation would result in highly unusual departures from important legal norms. For example, the Supreme Court applied the express authorization rule to bar interpretations of the National Security Act and the Armed Service Procurement Act that would have allowed the Defense Department to terminate civilian employees without the right of confrontation and cross examination. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400 (1959). "Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and wanted and has authorized their use." Id., 360 U.S. at 506, 79 S.Ct. at 1419. Such a decision "must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized . . . but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them." Id. 360 U.S. at 507, 79 S.Ct. at 1419.

   Consistent with these principles, express authorization has been deemed necessary for retroactive application of statutory law. "[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic." Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1497 (1994). Abrogation of executive, legislative and juridical immunities must be express, because the public interest is best served by such vital decision makers if they can exercise their functions with independence and without fear of personal consequences. Nixon v. Fitzgerald, 457 U.S. 731, 746, 102 S.Ct. 2690, 2699 (1982). Congress must be explicit if it intends American law to apply outside the territorial jurisdiction of the United States, in order "to protect against unintended clashes between our laws and those of other

nations which could result in international discord." EEOC v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 1230 (1991). Congress must provide clear and convincing expressions of intent to cut off the right to judicial review of agency action, because of the long custom, embodied in the Administrative Procedure Act, of free access to the courts. Reno v. Catholic Soc. Servs, Inc., 509 U.S. 43, 64, 113 S.Ct. 2485, 2499 (1993). And abrogation of sovereign immunity must be explicit in the statute because of sovereign immunity's ancient roots in Anglo-American law and the importance of the public fisc. West v. Gibson, 527 U.S. 212, 224, 119 S.Ct. 1906, 1913 (1999) (dissent); 18 Op. Off. Legal Counsel 52 (1994).

   In the administrative subpoena context (again, under a statute that expressly authorized administrative subpoenas), the Supreme Court rejected an early interpretation of the Interstate Commerce Commission's subpoena power that would have permitted the Commission to require any person to disclose any facts, "no matter how private, no matter what their tendency to disgrace the person whose attendance has been compelled," that the Commission might find helpful as it consider a potential legislative proposal relating to commerce with foreign nations or among the several states. "We could not believe, on the strength of other than explicit and unmistakable words, that such autocratic power was given for any less specific object of inquiry than a breach of existing law, in which, and in which alone . . . there is any need that personal matters should be revealed." Harriman v. ICC, 211 U.S. 407, 421, 29 S.Ct. 115, 119 (1908); cf. Ellis v. ICC, 237 U.S. 434, 35 S.Ct. 645 (1915); FTC v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 3336 (1924).

   To recite the issues to which the express authorization rule has been applied is to show the rule's irrelevance to the question whether administrative subpoena power must be express. As we have seen, administrative subpoenas have been a staple of federal legislation and agency practice for more than a hundred years. To infer subpoena power from statutory authorization to investigate and enforce compliance with a statute produces anything but a departure from a legal norm. To the contrary, application of the express authorization rule would produce an anomolous result by depriving the agency of an essential and commonplace mechanism for effectuating its duty to assure compliance with the statute.

D. Statutory mandates to provide formal trial-type hearings encompass subpoena authority

   Section §5851 does not merely charge the Secretary of Labor with providing hearings, it stipulates that the hearings be of the most formal type "on the record after notice and opportunity for public hearing." 42 U.S.C.A. §5851(b)(2)(A) ("An [adjudicative] order of the Secretary shall be made on the record after notice and opportunity for public hearing"). Thus, §5851 falls squarely within the category of administrative adjudications where procedural mechanisms routinely used by courts to manage the gathering of material evidence can be employed, whether mentioned in the enabling legislation or not.

   The U. S. Court of Appeals for the District of Columbia Circuit has certainly suggested as much by stating that unless an agency is required to issue adjudicative orders on the record after notice it cannot employ evidence-gathering mechanisms like subpoenas that are traditionally part of formal trial-type proceedings. "The Civil Service Commission had no statutory obligation to examine witnesses or hold an adversary hearing, much less issue a subpoena . . . . The Commission cannot confer upon itself the power of subpoena in the absence of a statute requiring it to hold hearings of the type involving subpoenas." Johnson v. United States, 628 F.2d 187, 193 (D.C. Cir. 1980) (emphasis added). See also Deviny v. Campbell, 194 F.2d 876, 879- 880 (D.C. Cir.), cert denied., 344 U.S. 826, 73 S.Ct. 27 (1952) (The Veterans' Preference Act "provides that 'after investigation and consideration of the evidence submitted, the Civil Service Commission shall submit its findings,' etc. Nothing in this statute indicates an intention to require a hearing of the adversary type, with compulsory confrontation of witnesses, etc. . . . The Commission cannot confer upon itself the power of subpoena in the absence of a statute requiring it to hold hearings of the type involving subpoenas") (emphasis added). Compare Atlantic Richfield Co. v. DOE, 769 F.2d 771, 795 (D.C. Cir. 1984) ("[O]ver the years . . . we have increasingly entrusted agencies with decision making affecting many rights and privileges hardly less important than those in discovery rulings. It seems to us incongruous to grant an agency authority to adjudicate which involves vitally the power to find the material facts and yet deny authority to assure the soundness of the fact finding. Without an adequate evidentiary sanction, a party served with a discovery order in the course of an administrative hearing proceeding has no incentive to comply, and ofttimes has every incentive to refuse to comply").

useful to execute the authority granted." Id. Cf. American Trucking Ass'ns v. United States, 344 U.S. 298, 309, 73 S.Ct. 307, 313 (1953) ("All urge upon us the fact that nowhere in the [Motor Carrier] Act is there an express delegation of power to control, regulate or affect leasing practices . . . . Our function, however, does not stop with a section-by-section search for the phrase 'regulation of leasing practices . . . . [W]e might agree with appellants' contentions [that express terms are necessary] if we thought it a reasonable canon of interpretation that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do include specific consideration of every evil sought to be corrected. But no great acquaintance with practical affairs is required to know that such prescience, either in fact or in the minds of Congress, does not exist").

E. An administrative subpoena is but a procedural mechanism for effectuating the legislative mandate to enforce by adjudication

   Even if the congressional mandate to conduct formal trial-type hearings did not encompass authorization for subpoena use, the adjudicating agency would be entitled to use subpoenas simply by virtue of the agency's discretion to choose procedural mechanisms. "[T]he formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202 (1978). This principle is "an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved." FCC v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467 (1965). In other words, when Congress delegates power to an agency to investigate and enforce, that delegation includes the power to resolve "subordinate questions of procedure." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439 (1940).

   That administrative subpoenas are merely procedural mechanisms is evident from the fact that the power to issue an administrative subpoena is not a coercive power. No matter what the agency finds out, it cannot, in the absence of any other power, use the information to do anything such as promulgate or enforce a rule, adjudicate a dispute, or otherwise "take any affirmative action which will affect an individual's rights." Hannah v. Larche, 363 U.S. at 441, 80 S.Ct. at 1514.

   Further, warrants, which are used for purposes far more intrusive than those of subpoenas as they serve as the procedural mechanism for government entry and search of private premises, have not been subjected to an express authorization requirement. For example, the Supreme Court ruled that the Occupational Safety and Health Act mandate to

OSHA to "enter without delay and at reasonable times any factory, plant, establishment . . . or environment where work is performed . . . and to inspect and investigate," 29 U.S.C.A. §657(a) (West 1999), could be enforced only if the agency had consent or a valid warrant yet the word "warrant"does not appear in the statutory provision. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816 (1978). Cf. Almeida- Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535 (1973) (construing section of INA that authorized certain automobile searches to require warrant or consent); Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981), cert. denied, 446 U.S. 940, 102 S.Ct. 1432 (1982) (assuming that INS was free to apply for a warrant in order to execute its statutory authority to enter premises to investigate possible statutory violations). If a warrant is a procedural device available to the agency when helpful, it must follow that a subpoena is a procedural device available to the agency when helpful. Cf. Atlantic Richfield, 769 F.2d at 795-796 (holding that statutory authorization to hold informal adjudications over price control violations encompassed authority to punish parties who refused to comply with discovery: "such sanctions need not be authorized eo nomine in the Secretary's enabling statute").

F. Agency lack of contempt power is irrelevant

   In an unpublished decision relying on Malpass, the Fourth Circuit ruled that an ALJ lacked subpoena authority under the whistleblower provision of the Federal Water Pollution Control Act, 33 U.S.C.A. §1367 (West 1986) (the FWPCA). Immanuel v. United States Dep't Labor, 139 F.3d 889 (unpublished table decision) (4th Cir. 1998), 1998 WL 129932. Section 1367(b) of the FWPCA provides, in relevant part, that the parties involved in a whistleblower complaint are entitled to a hearing and that "[a]ny such hearing shall be of record and shall be subject to section 554 of Title 5." In other words, the whistleblower provisions of the FWPCA and §5851 of the Energy Reorganization Act both require that enforcement proceedings be adjudicated in formal trial-type hearings.

   The Immanuel court reasoned that administrative subpoenas must be authorized by express terms in the enabling legislation because §§555(d) and 556(c)(2) of the APA state that agencies may issue subpoenas in adjudications when "authorized by law." 5 U.S.C.A. §555(d) (agency subpoenas "authorized by law shall be issued to a party on request"); 5 U.S.C.A. §556(c)(2) (providing that, subject to published rules of the agency and within its powers, employees presiding at administrative hearings may issue subpoenas "authorized by law"). The court apparently assumed that the term "authorized by law" means "authorized by express statutory terms": "unless the [F]WPCA specifically provides for the issuance of subpoenas by administrative hearing officers, the ALJ does not have the authority to issue them." Immanuel, 1998 WL 129932 **5.

   "Authorized by law" is clearly not the same as "authorized by explicit statutory text." Nor do the words "law" and "statute" represent interchangeable concepts. BLACK'S LAW DICTIONARY 889, 1420 (7th ed. 1999). And the term "law" most emphatically cannot stand in for "express statutory text," as the Seventh Circuit has pointed out: "[t]he APA requirement of legal authorization does not clearly require Express [sic] statutory authority. * * * [S]tricter standards requiring express legislative authorization have only been applied to novel assertions of agency power." Uniroyal, Inc. v. Marshall, 579 F.2d 1060, 1066-1067 (7th Cir. 1978) (holding that the detailed enforcement scheme and broad investigative powers established by Executive Order 11246 (which prohibits discrimination based on race, creed, color or national origin) impliedly authorized the Secretary of Labor to adopt discovery rules for the interval between investigation and hearing).

person . . . disobeys or resists any lawful order or process, or neglects to produce, after having been ordered to do so . . . or refuses to appear after having been subpoenaed . . . the administrative law judge responsible for the adjudication, where authorized by statute or law, may certify the facts to the Federal District Court having jurisdiction in the place in which he or she is sitting to request appropriate remedies"). There is no logic to the proposition that a command to appear or produce expressed in a document called a "subpoena" must be expressly authorized, but that a command to appear or produce by means of an ALJ order need not be expressly authorized. Cf. Morton Salt, 70 S.Ct. at 367, 338 U.S. at 648-649 (the statutory authority for issuance of an administrative subpoena did not, in fact, use the word "subpoena," but instead used "to require, by general or special orders").

H. Remand is unnecessary because the testimony Childers sought could not alter the outcome of this case

   As we explained at the outset of this decision, Childers' complaint against CP&L is that the company transferred him into the refuel area of the plant hoping he would make mistakes there and give the company an excuse to fire him. According to Childers the company did this in retaliation for complaints he made about "integrity" issues in his performance evaluation. However, the overwhelming weight of the record evidence, including Childers' own testimony, shows that the company's real reason for firing Childers was that for a second time in a short period he committed serious derelictions of duty that endangered other employees.

   Consistent with his theory of the case, Childers told the ALJ at the beginning of the hearing that he wished he could subpoena additional co-workers "to get their opinions of how things are run at the plant . . . . " Childers then questioned the co- workers who did appear on his behalf about his reputation for honesty and whether he, Childers, was adequately trained for work on the refuel floor. Childers never again referred to a need for additional witnesses, and nothing in his own testimony or in his examination of any of the witness indicates that the additional testimony from co-workers could have materially aided him in establishing that CP&L's decision to fire him was influenced by protected activity. Cf. Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir.), cert. denied, 119 S.Ct. 371 (1998) (remand unnecessary when it is clear that agency would have reached the same result had it applied correct reasoning); FEC v. Legi-Tech, Inc. 75 F.3d 704 (D.C. Cir. 1996) (remand is an unnecessary formality where the outcome on remand is clear).

   Finally, to the extent to which Member Brown's opinion diverges from the majority opinion, we expressly disavow it.

   ACCORDINGLY, the ALJ's recommended decision on the merits is adopted as our own and attached hereto. The ALJ's ruling that he lacked subpoena power under the ERA is rejected, and the complaint is dismissed.

    SO ORDERED.

       PAUL GREENBERG
       Chair

       CYNTHIA L. ATTWOOD
       Member

E. Cooper Brown, Member, concurring in part and dissenting in part:

   I concur in the majority's conclusion that the ERA implicitly empowers the ALJ with subpoena authority necessary to compel the attendance of witnesses at hearing. I write separately on the nature of the subpoena authority found within the ERA out of concern that the majority's discussion on this subject will inadvertently lead to abuse by litigants of that authority.

   The conclusion that the authority to issue witness subpoenas is implicit in the ERA does not fully resolve the question of whether an ALJ is thus required to issue such subpoenas when requested by a litigant. A determination must be made, applying the test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), as to whether due process compels issuance of the requested subpoenas in the particular case before the ALJ. In the instant case the record before this Board on appeal is inadequate for purposes of making that determination. I thus dissent from the majority's ultimate resolution of the present appeal, as I am of the opinion that before a final ruling on the merits can be made, the case should be remanded to the ALJ to afford Mr. Childers the opportunity to demonstrate why, consistent with Mathews v. Eldridge, his requested witness subpoenas should have been issued.

   Citing Malpass v. General Electric, 85-ERA-38&39 (Sec'y, Mar. 1, 1994), the ALJ in the instant case held that under 5 U.S.C. §556(c)(2) he was not permitted to subpoena witnesses to testify at the hearing absent express statutory authorization which the ERA did not provide. RD&O at 13. As here explained, the ALJ's reliance upon the Secretary's commentary in Malpass was misplaced.

   Consistent with 5 U.S.C. §556(c)(2) of the Administrative Procedure Act, 29 C.F.R. §18.24(a) authorizes the presiding ALJ to "issue subpoenas as authorized by statute or law." See also 29 C.F.R. §18.29(a)(4). In previous decisions addressing the authority of the ALJ and/or Secretary to issue subpoenas, both the Secretary and the Board have construed this language to preclude the issuance of subpoenas in the absence of express statutory authority, and determined that such authority was not to be found in the ERA or other environmental whistleblower protection statutes. See Oliver v. Hydro-Vac Services, 91-SWD-1, ARB Case No. 97-063 (ARB, Jan. 6, 1998); Immanuel v. Wyoming Concrete Indus., 95-WPC-3, ARB Case No. 96-022 (ARB, May 28, 1997), aff'd in part and rev'd in part sub nom. Immanuel v. U.S. Dep't of Labor, 139 F.3d 889 (4th Cir. 1998) (unpublished decision); Malpass v. General Electric, supra.

   Within the context of the ALJ proceedings under the ERA, Mr. Childers clearly has a property interest protected by due process. Johnson v. U.S., 628 F.2d 187, 194 (D.C. Cir. 1980). Accord Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39 (1985). Cf. Brock v. Roadway Express, 481 U.S. 252, 261 n.2 (1987) (right of employer to discharge employee for cause constituted protected property interest). However, the presence of a right to due process under the Fifth Amendment only requires that a party receive his "due" process; it does not require that every procedural device that the party may claim or desire, including the issuance of witness subpoenas, be provided. "Under the line of cases beginning with Goldberg v. Kelly . . . our determination of what process is due depends upon an analysis and weighing of three factors: [1] the nature of the benefit or status of which the individual is being deprived; [2] the need for the government to act efficiently and expeditiously in terminating this type of benefit or status; and [3] the extent to which the decision making process would be aided by the presence of the procedural safeguard that the individual seeks." Johnson v. U.S., 628 F.2d at 194, citing Mathews v. Eldridge, supra.

   Thus, before it can be concluded that witness subpoenas should have issued in the instant case, a determination must be made consistent with the test in Mathews v. Eldrige as to whether due process compels such a result. Required is a balancing of:

[T]he private interest that will be affected by the official action; . . . the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.