Ex Parte Communication

HPPOS-126 PDR-9111210297

See the memorandum from J. P. Murray to J. G. Keppler dated February 3, 1981.

Ex parte provisions prohibit discussion - written or oral - by one party to a proceeding with a "judge." Judges include licensing boards, appeal boards, administrative law judges, the Commissioners, and staffs of all the above.

An explanation of the term "ex parte" in assisting IE personnel in the recognition of potential ex parte contacts was sought. Here is an attempt to briefly summarize the situation in simplified terms. The latin phrase "ex parte" means "from one side only." It has application only in the context of a legal "proceeding". What is a "proceeding?" It is the agency's process for issuing, amending, suspending or revoking a license or issuing a civil penalty.

When is it "going on?"

It begins when a hearing has been noticed or when a request for a hearing is made. It ends with the final decision by the agency. The basic idea behind the ex parte prohibition, codified in 10 CFR 2.780, is the prevention of the unfairness which could occur if one of two (or more) parties to a proceeding were to have secret discussions with the decisional authority on a matter at issue in the proceeding. One party ought not be allowed to discuss secretly with the judge matters at issue before the judge. This could be unfair to the party or parties left in the dark as to what was said.

In NRC's practice, the "judges" are: the licensing boards, the administrative law judge, the appeal board and, of course, the Commissioners themselves when there is a case pending before them. (This includes all members of the staffs of these "judges".) Also, in NRC's practice the "parties" to proceedings are: the NRC staff, the applicant or licensee, and any intervenors.

So, the prohibition is against discussion - written or oral - between one of the parties and a judge concerning a matter at issue in a pending proceeding. Put another way, all parties to a proceeding are entitled to be in on any discussions which occur between the judge and any of the other parties.

One final observation is as follows. Although the subsequent revelation on the record of a prior ex parte contact serves, at least in most cases, to largely eliminate the pernicious effect which might otherwise occur, such a "curative" action does not eliminate the original illegality of the contact.

In summary, IE personnel should be sensitive to any contact they may have with the "judges" or their staffers and, never discuss a matter currently pending before one of the "judges," except on the formal record.

Regulatory references: 10 CFR 2.780

Subject codes: 12.19

Applicability: All

Page Last Reviewed/Updated Monday, October 16, 2017