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Section 557(d) contains two possible administrative remedies for improper ex parte communications. The first is disclosure of the communication and its content. 5 U.S.C. § 557(d) (1) (C) (1976). The second requires the violating party to 'show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of [the] violation.' Id. § 557(d) (1) (D); See also id. § 556(d). Congress did not intend, however, that an agency would require a party to 'show cause' after every violation or that an agency would dismiss a party's interest more than rarely. See S. REP. NO. 354, supra, at 37-39, SUNSHINE ACT SOURCEBOOK at 232-34. Indeed, the statutory language clearly states that a party's interest in the proceeding may be adversely affected only 'to the extent consistent with the interests of justice and the policy of the underlying statutes.' 5 U.S.C. § 557(d) (1) (D) (1976).
The Government in the Sunshine Act contains no specific provisions for judicial remedy of improper ex parte communications. However, a court may infer from approving citations in the House and Senate Reports that Congress did not intend to alter the existing ...
