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 The APA prohibits an 'interested person outside the agency' from making, or knowingly causing to be made, an ex parte communication relevant to the merits of the proceeding with a member of the body comprising the agency. 5 U.S.C. § 557(d)(1)(A). Likewise, agency members are prohibited from engaging in such ex parte communication. § 557(d)(1)(B). 


There is little decisional law on the meaning of the term 'interested person'. Nor is the meaning of the term clear on the face of the statute. A person can be 'interested' in at least three different senses. First, an interested person can be someone who has a curiosity or a concern about a matter, although he may be neutral with respect to the outcome. Second, an interested person can have a preference or a bias regarding a matter's outcome but no direct stake in the proceedings. Finally, a person can be 'interested' in a matter in the sense of having a legal interest that will be determined or affected by the decision. 


Ultimately, the ex parte communication provision must be interpreted in a common sense fashion. Its purposes are to insure open decision-making and the appearance thereof, to ...

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