(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]
Notes of Decisions
Stephen M. Rodgers v. Dep't of the Navy, 2015 MSPB 45 (MSPB 2015).
“5 C.F.R. § 1201.101 (a). Only those ex parte communications that involve the merits of the case or violate rules requiring submissions to be in writing are prohibited.”
Robert Cauldwell v. Fed. Reserve Sys. (MSPB 2016).
· cites it 2× “5 C.F.R. § 1201.101 . Here, the agency representative did provide the appellant’s representative with an opportunity to participate in the conversation, albeit not a lengthy one.”
Robert Cauldwell v. Fed. Reserve Sys. (MSPB 2016).
· cites it 2× “5 C.F.R. § 1201.101 . Here, the agency representative did provide the appellant’s representative with an opportunity to participate in the conversation, albeit not a lengthy one.”
Brett A. Barnhart v. Dep't of the Army (MSPB 2016).
“I-3 RAF, Tabs 2-3; see 5 C.F.R. § 1201.101 (“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…”
Qiana Reid v. United States Postal Serv. (MSPB 2024).
“152 , ¶ 24 (2001); 5 C.F.R. §§ 1201.101 , 1201.102. Nevertheless, even if the administrative judge’s action was inappropriate, the appellant has not shown that she was harmed.”
David Oelberg v. Dep't of Agric. (MSPB 2024).
“5 C.F.R. § 1201.101 ; see 5 One of the applications was for current agency employees only, which the appellant was not.”
Anwar Shaikh v. Smithsonian Inst. (MSPB 2024).
“5 C.F.R. § 1201.101 . Administrative judges are prohibited from engaging in ex parte conversations regarding the merits of an appeal.”
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