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Electronic Code of Federal Regulations

e-CFR data is current as of February 20, 2020

Title 5Chapter IISubchapter APart 1201Subpart B → Subject Group

Title 5: Administrative Personnel
Subpart B—Procedures for Appellate Cases

Ex Parte Communications

§1201.101   Explanation and definitions.

(a) Explanation. An ex parte communication is an oral or written communication between a decision-making official of the Board and an interested party to a proceeding, when that communication is made without providing the other parties to the appeal with a chance to participate. Not all ex parte communications are prohibited. Those that involve the merits of the case, or those that violate rules requiring submissions to be in writing, are prohibited. Accordingly, interested parties may ask about such matters as the status of a case, when it will be heard, and methods of submitting evidence to the Board. Parties may not ask about matters such as what defense they should use or whether their evidence is adequate, and they may not make a submission orally if that submission is required to be made in writing.

(b) Definitions for purposes of this section—(1) Interested party includes:

(i) Any party or representative of a party involved in a proceeding before the Board; and

(ii) Any other person who might be affected by the outcome of a proceeding before the Board.

(2) Decision-making official means any judge, officer, or other employee of the Board designated to hear and decide cases except when such judge, officer, or other employee of the Board is serving as a mediator or settlement judge who is not the adjudicating judge.

[54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62367, Oct. 12, 2012]

§1201.102   Prohibition on ex parte communications.

Except as otherwise provided in §1201.41(c)(1) of this part, ex parte communications that concern the merits of any matter before the Board for adjudication, or that otherwise violate rules requiring written submissions, are prohibited from the time the persons involved know that the Board may consider the matter until the time the Board has issued a final decision on the matter.

§1201.103   Placing communications in the record; sanctions.

(a) Any communication made in violation of §1201.102 of this part will be made a part of the record. If the communication was oral, a memorandum stating the substance of the discussion will be placed in the record.

(b) If there has been a violation of §1201.102 of this part, the judge or the Clerk of the Board, as appropriate, will notify the parties in writing that the regulation has been violated, and will give the parties 10 days to file a response.

(c) The following sanctions are available:

(1) Parties. The offending party may be required to show why, in the interest of justice, the claim or motion should not be dismissed, denied, or otherwise adversely affected.

(2) Other persons. The Board may invoke appropriate sanctions against other offending parties.

[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30609, May 27, 2005]

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