Most procedural mistakes that agencies make can be fixed if the officials just cancel what they have done and start over, properly following the law: the real mistake is believing that procedural errors cannot be fixed. 1 Compare Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) with 5 U.S.C. § 7513.What is the harmful error test?
This is known as the harmful error test. 4 Under this test, once the non-substantive procedural error is found, for the action to be reversed, the appellant must show that is likely that the error caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. 5 For example, in Hawkins v.Can most procedural mistakes by proposing and deciding officials be fixed?
Just as it may be unrealistic to expect that most subordinates will never make an accidental misstep in following directions, so too, proposing and deciding officials can err when performing the procedures for implementing adverse actions. However, most procedural mistakes by proposing and deciding officials can be fixed.What happens if an agency makes a substantive error?
When an agency makes a substantive error or a harmful procedural error, the adverse action cannot, by law, be permitted to stand. 7 If an agency finds that it has erred, it need not wait for an appeal to be filed or for MSPB to rule that the agency erred.