Stone v. Fdic

179 F.3d 1368 (Fed. Cir. 1999)


P was employed as a bank examiner with the FDIC (D). On applications, P submitted for approved leave P signed the forms with the names of doctors who were purportedly excusing the absences that he requested. D begin removal proceedings noticing P of the charges of misconduct upon which his removal would be based. Counsel for P requested that D send him all the materials upon which D intended to rely in its attempt to discipline P. The deciding officer recommended that P be fired. P appealed to the Merit System Protection Board which assigned the case to an ALJ. P made a second request for relevant documents. P discovered that an ex parte memorandum from the official recommending his dismissal had been sent to the deciding official. P also discovered that the deciding official received a second ex parte memorandum from another FDIC official urging P's removal. In an affidavit, the deciding official stated that he would have concluded that P should be removed whether or not he had seen the ex parte memo from the proposing official. The ALJ found nothing erroneous in the ex parte communications. The ALJ did not apply any type of 'harmless error' test with respect to the ex parte communications. On this appeal, P argues that the ex parte memoranda improperly introduced new, highly prejudicial, and unchallenged charges and information against him. P urges us to adopt an 'objective' harmless error test to determine whether consideration of these ex parte memoranda constituted an error that should void the removal proceeding. The objective test would not focus on whether the deciding official actually would have reached the same result if there had been no procedural defect, but rather would focus on whether the error is so likely to have prejudiced the deciding official that the proceeding should be void. D argues that a subjective test for harmless error applies in this case and that P has failed to submit evidence sufficient to meet this test. Under the subjective test, P must prove that new allegations or information were introduced which P has not had the benefit of reviewing or responding to; that the deciding official was influenced by the new allegations or information in his or her decision-making process; and that the procedural error of considering the new allegations or information likely had a harmful effect upon the outcome before the agency.