C.F.R. » Title 7 » PART 11—NATIONAL APPEALS DIVISION › Subpart A—National Appeals Division Rules of Procedures

7 C.F.R. § 11.7

Ex parte communications

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(a)(1) At no time between the filing of an appeal and the issuance of a final determination under this part shall any officer or employee of the Division engage in ex parte communications regarding the merits of the appeal with any person having any interest in the appeal pending before the Division, including any person in an advocacy or investigative capacity. This prohibition does not apply to:

(i) Discussions of procedural matters related to an appeal; or

(ii) Discussions of the merits of the appeal where all parties to the appeal have been given notice and an opportunity to participate.

(2) In the case of a communication described in paragraph (a)(1)(ii) of this section, a memorandum of any such discussion shall be included in the hearing record.

(b) No interested person shall make or knowingly cause to be made to any officer or employee of the Division an ex parte communication relevant to the merits of the appeal.

(c) If any officer or employee of the Division receives an ex parte communication in violation of this section, the one who receives the communication shall place in the hearing record:

(1) All such written communications;

(2) Memoranda stating the substance of all such oral communications; and

(3) All written responses to such communications, and memoranda stating the substance of any oral responses thereto.

(d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section the Hearing Officer or Director may, to the extent consistent with the interests of justice and the policy of the underlying program, require the party to show cause why such party's claim or interest in the appeal should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

Notes of Decisions
Cited in 3 cases, 2000–2006 · leading case: Holly Hill Farm Corp. v. United States, 447 F.3d 258 (4th Cir. 2006).
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Holly Hill Farm Corp. v. United States, 447 F.3d 258 (4th Cir. 2006). “7 C.F.R. § 11.7 (a)(1) (2005). It seems clear that the exchange at issue here related to procedural matters only, and was initiated merely to aid the Hearing Officer in determining whether the requested witness had relevant information not otherwise available.”
Prokop v. United States Ex Rel. United States Dep't of Agric., 91 F. Supp. 2d 1301 (D. Neb. 2000). “” 7 C.F.R. § 11.7 (a)(1). The regulations further provide that this prohibition does not apply to “[discussions of procedural matters related to an appeal.”
Holly Hill Farm v. United States (4th Cir. 2006). “7 C.F.R. § 11.7 (a)(1) (2005). It seems clear that the exchange at issue here related to procedural matters only, and was initiated merely to aid the Hearing Officer in determining whether the requested witness had relevant information not otherwise available.”
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