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Ex parte communications do not void an agency decision. PATCO v. FLRA, 685 F.2d 547 (D.C.Cir.1982). The agency decision is voidable and the court will consider whether 'the agency's decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency is obliged to protect.' Id. at 564. Relevant considerations are the gravity of the ex parte communication, whether the communication may have influenced the decision, whether the party making the communication benefited from the decision, whether opposing parties knew of the communication and had an opportunity to rebut, and whether vacation and remand of the decision would serve a useful purpose. Id. The court is concerned primarily with the integrity of the process and the fairness of the result rather than adherence to mechanistic rules. Id.


Section 557(d)(1) is a broad provision that prohibits any ex parte communications relevant to the merits of an agency proceeding between 'any member of the body comprising the agency' or any agency employee who 'is or may reasonably be expected to be involved in the decisional process' and any 'interested ...

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