Also known as: ex parte contact · ex-parte contact · ex-parte contacts · ex parte communication · ex parte communications
Written by attorneys · grounded in primary & secondary sources — see below
Communications between a judge or administrative decisionmaker and one party to a proceeding without notice to or presence of the opposing party. Such contacts undermine the requirement that decisions rest solely on the record developed through adversarial testing and notice. Limited exceptions exist for scheduling or administrative matters when no substantive advantage results and prompt notice is given to all parties.
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Esther Eisenberg filed a motion to dismiss in her contract dispute with Elemental Pharmaceuticals. The assigned judge met privately with Elemental's counsel to discuss the motion's merits without notifying Esther or her lawyer. The judge later issued an order denying the motion that relied on arguments raised only in the private meeting.
Eric Espinoza requested a continuance in his employment case against Eclipse Manufacturing. The judge telephoned Eclipse's counsel to confirm a new hearing date but failed to notify Eric or provide any opportunity to respond. Eric later learned of the call only after receiving the rescheduled order.
Ewan Eckhart sought an emergency injunction against Everest Holdings. The judge received a late-night call from Everest's lawyer about logistical details and granted the injunction the next morning without notifying Ewan. The judge had no basis to conclude that Ewan would suffer no tactical disadvantage from the contact.
Ella Emerson requested a trial date change in her tort suit against Echo Systems. The judge spoke with Echo's counsel about the request and issued a new schedule without promptly informing Ella of the conversation or giving her a chance to respond. Ella discovered the contact only after the order was entered.
Eduardo Enriquez challenged an EPA rule on environmental grounds. After the comment period closed, agency officials met privately with industry representatives to discuss the rule's economic impact. The final rule incorporated points raised only in that meeting, and no record of the discussion was placed in the public docket.
A judge may engage in ex parte communications for scheduling, administrative, or emergency purposes that do not address substantive matters when circumstances require it. The judge must reasonably believe no party will gain a procedural, substantive, or tactical advantage and must promptly notify all other parties of the substance of the communication while giving them an opportunity to respond.
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…the future, and spur the provision of information which the agency needs. The possibility of course exists that in permitting ex parte communications with rulemakers we create the danger of "one administrative record for the public and this court and another for the Commission." Under the Clean Air Act procedures, however, "[t]he…
…3, 1981, the court heard oral arguments by ’ petitioner PATCO, respondent FLRA, intervenor FAA and amicus Skirlick. II.
A judge who inadvertently receives an unauthorized ex parte communication bearing on the substance of a matter must promptly notify the parties of the substance of the communication and provide them an opportunity to respond.
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The APA's ban on ex parte contacts applies in formal rulemaking but not in informal rulemaking. Informal rulemaking permits greater flexibility for agency decisionmakers to receive input outside the formal record, though due process concerns may still arise in some circumstances.
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The exclusivity of the record under APA section 556(e) ensures that decisions rest only on evidence presented in the proceeding. Ex parte contacts can nullify parties' rights to know and contest evidence used against them, violating fairness principles that require notice and an opportunity to respond.
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