Ex Parte Communications: An Overview

What is “Ex Parte” Communication?

Ex parte means one-sided. In adjudicative proceedings, ex parte communications are communications between judges and jurors, parties, or any other people involved in the case outside of the presence of the opposing party. Both oral and written communications can be ex parte if they are off the record communications that are related to the merits of the case. Ex parte communications can interfere with due process, because one-sided, off the record communications may violate notice requirements, failing to apprise parties of matters that deprive them of their life, liberty, and property

The APA prohibits ex parte communications in formal rulemaking/adjudication. APA Section 557(d)(1)(B) says that “no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding [...]” (Remember, formal adjudication and rulemaking are generally indistinguishable and we treat them the same, as procedures governed by APA Sections 556 and 557, in this class.) 

While 557 prohibits ex parte communications in formal rulemaking/adjudication, there are no rules that prohibit ex parte communications in informal rulemaking and informal adjudication. In a rulemaking context, ex parte communications are a regular part of the commenting process required by APA Section 553(c). The D.C. Circuit Court called “informal contacts between agencies and the public” the “‘bread and butter’ of the process of administration” in Home Box Office v. Federal Communications Commission, 567 F.2d. 9 (D.C. Cir. 1977). 

Informal adjudication, similarly, does not prohibit lobbyists, industry lawyers, and other interested parties from communicating with agencies off the record. One thing to keep in mind when considering the role of ex parte communications in agency adjudication: Agency adjudication is unlike hearings with two private parties arguing before a judge. In agencies’ adjudicative proceedings, there is usually one private party facing off against a government agency rather than another private party. So, ex parte communications in this context would likely involve either the party going before the agency, or parties that would be affected by the agency decision, discussing the matter with the agency. Sierra Club v. Costle gives us a glimpse of what ex parte communication looks like in informal rulemaking and adjudication, and describes the courts’ permissive stance on ex parte communications in informal agency proceedings.