- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Civil Procedure
- Date Filed: 06-01-2012
- Case #: 10-35946
- Judge(s)/Court Below: Circuit Judge Kleinfeld for the Court; Circuit Judges Fletcher and Callahan
- Full Text Opinion
This Court addresses whether “an [ALJ’s] handling of an ex parte contact was error, and if so, whether it was harmless.” After the hearing, but before a decision had been issued, an FBI agent told the ALJ that Ludwig was faking his disability. The ALJ informed Ludwig’s counsel of the contact, but refused to entirely disregard the communication or to allow a supplementary hearing. By writing he did not give “significant weight,” instead of stating a complete disregard, the ALJ went against Congress’ command “that the…decision be ‘on the basis of evidence adduced at the hearing,’ not on the basis, even in part, of private chats outside the hearing.” The Court noted that notice and opportunity to be heard are the “hallmarks of procedural due process.” “Receipt of the ex parte communication, assignment of some weight to it, and denial of a supplementary hearing to address it, was error.” However, the party claiming error must demonstrate the error and “that it affected his ‘substantial rights,’ not merely his procedural rights,” with at least a “substantial likelihood of prejudice.” The Court concluded there was no prejudice from the error because Ludwig’s contradictions during testimony “were dramatic.” Considering the record as a whole, and the ALJ’s explanation of his decision, the Court found Ludwig failed to demonstrate the decision would be different without the FBI agent’s information. “Learning after a firm conviction has been formed… one’s conviction is supported by additional evidence” may affect one’s level of confidence, without affecting the outcome of one’s decision. AFFIRMED.