5 C.F.R. § 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.
Notes of Decisions
Cited in 8
cases (3 in the last 5 years), 1984–2024 · leading case: Fed. Educ. Ass'n-Stateside Region v. Dep't of Def., 841 F.3d 1362 (Fed. Cir. 2016).
Fed. Educ. Ass'n-Stateside Region v. Dep't of Def., 841 F.3d 1362 (Fed. Cir. 2016). “DEFENSE See 5 C.F.R. § 1201.102 (prohibiting ex parte communica- tions “from the time the persons involved know that the Board may consider the matter until the time the Board has issued a final decision”).”
Robert L. Campbell v. Dep't of Transp., Faa, 735 F.2d 497 (Fed. Cir. 1984). “After a thorough investigation, the board’s Ethics Officer determined that the conversations were procedural in nature, did not relate to the merits of a board appeal, and, therefore, did not constitute a prohibited ex parte communication under 5 C.F.R. § 1201.102 . The full…”
Kohl v. U.S. Postal Serv., 115 F. App'x 49 (Fed. Cir. 2004). “However, there is no evidence that the communication concerned the merits of the case, which is all that is forbidden by 5 C.F.R. § 1201.102 . “As a general rule, we frown upon any communication between a judge and any party to litigation pending before that judge, when the…”
Tracy L. Dancy v. Dep't of the Navy (MSPB 2016). “254 , ¶ 6 (2010) (finding that ex parte communications regarding procedural matters, such as whether a party plans to file a response, are not prohibited); 5 C.F.R. § 1201.102 (prohibiting ex parte communications regarding the merits, as opposed to procedural aspects, of matters…”
Dale v. Dep't of the Navy, 705 F. App'x 990 (Fed. Cir. 2017). “” 5 C.F.R. § 1201.102 . As Mr. Dale correctly concedes, however, “under Board practice, ex parte communications are not prohibited per se.”
Mario Chiovitti v. Dep't of the Air Force (MSPB 2022). “254 , ¶ 6 (2010) (finding that ex parte communications regarding procedural matters are not prohibited); 5 C.F.R. § 1201.102 (prohibiting ex parte communications regarding the merits, as opposed to procedural aspects, of matters before the Board).”
Benjamin McKenzie v. Dep't of Homeland Sec. (MSPB 2024). “5 C.F.R. § 1201.102 . Here, the appellant 4 provided no evidence or argument to support his claim that the agency representative may have had ex parte conversations with the administrative judge.”
Anwar Shaikh v. Smithsonian Inst. (MSPB 2024). “5 C.F.R. § 1201.102 . To the extent that the appellant argues that the administrative judge engaged in improper ex parte communications with a representative for the Smithsonian Institution, we find that the record is devoid of any evidence to support the appellant’s bare…”
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