Also known as: ex parte contact · ex-parte contact · ex-parte contacts · ex parte communication · ex parte communications
Written by attorneys — see sources 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.
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.
In June 1979 EPA promulgated revised new source performance standards governing emissions of sulfur dioxide and particulate matter from new coal-fired steam electric generating units capable of firing more than 250 million British thermal units per hour. The standards limited sulfur dioxide emissions to a maximum of 1.2 pounds per million British thermal units with a variable percentage reduction requirement ranging from 70 to 90 percent depending on the sulfur content of the coal burned. They also limited particulate matter emissions to 0.03 pounds per million British thermal units. The rulemaking arose from the Clean Air Act Amendments of 1977 which required the Administrator to revise the standards of performance for electric power plants within one year after enactment. Prior to the amendments the original 1971 standards had permitted compliance by burning low-sulfur coal without additional controls. In 1976 the Sierra Club and Navajo Tribe chapters petitioned the Agency to require a 90 percent reduction in sulfur dioxide emissions. This prompted an investigation that was accelerated by the statutory deadline and a district court stipulation requiring proposal in September 1978 and final promulgation within six months thereafter. During the rulemaking the Agency conducted extensive regulatory analyses in three phases. It employed econometric computer models to forecast national regional and plant-level impacts of alternative standards under assumptions of wet and dry scrubbing technologies. The Agency proposed a uniform 85 percent reduction standard in September 1978 held public hearings in December 1978 and received comments through January 1979. After the comment period closed the Agency performed additional modeling incorporating dry scrubbing and evaluated late-submitted data on coal reserves and washing. The final standards were published in June 1979 following consideration of comments from environmental groups electric utilities coal producers and other interested parties. Several parties including the Sierra Club the Electric Utilities the Environmental Defense Fund and the California Air Resources Board petitioned for reconsideration. The Agency denied those petitions in February 1980. Petitions for review were then filed in the United States Court of Appeals for the District of Columbia Circuit and consolidated for decision. The parties challenging the standards included environmental organizations seeking stricter controls and utilities seeking more flexible requirements. The Agency defended the balance struck among environmental economic and energy considerations.
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.
Supporting sources
…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.
Supporting sources
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.
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.