dissenting:
Today the court takes an already exceedingly generous rule and stretches it to wholly unnecessary lengths. What it does today is to add further to the plethora of obstacles an inefficient or incompetent federal employee may use to delay or to invalidate his discharge from employment. Today’s decision focuses and turns exclusively on a harmless technical procedural error while ignoring subsequent events which fully dissipated any taint of procedural irregularity. The court, further, overlooks plaintiffs failure to avail himself of administrative opportunities to air the issue on which he now prevails. Finally, the court departs from its own well-established precedents that it will not second-guess the administrators where the penalty assessed is authorized and applied without abuse of discretion.
The main precedent upon which the court relies established broad protection for federal employees against injury caused by private, undisclosed communications between agency decision makers and agency personnel whose active involvement as adverse parties to the employee in precedent levels of the administrative process, made their later ex parte role an affront to judicial notions of due process. Camero v. United States, 179 Ct. Cl. 520, 375 F.2d 777 (1967). One could hardly say that the balance we struck there between the interests of the relatively small group of federal employees who become the subject of adverse personnel actions, and of their employer, the Federal Government, was insufficiently solicitous of the former. By extending the Camero rule to this case, which is so different on the facts, the court makes bad social policy and bad law. The result may be to confirm the cynicism with which taxpayers increasingly regard the civil service "merit system,” to render meaningless the myriad administrative remedies which are available, and to debase the meaning of due process protections.
Although the majority characterizes this case as controlled by Camero, I find the cases distinguishable in at least two material respects. The first concerns the disclosure of the contents of the allegedly prejudicial communi*302cation, while the second deals with plaintiffs unexcused failure to use administrative opportunity to pursue the issue on which he now relies so heavily.
With regard to the first distinction, it is important to note that before the final Army decision was made, plaintiff was furnished a copy of the reasons for which General Berry had decided not to affirm the grievance officer. Before the final Army decision was made, plaintiff had an opportunity to respond in detail to the content of Berry’s comments and he did so. General Berry’s comments were, of course, virtual reproductions of Colonel Peach’s communication to Browder, the civilian personnel officer who passed them along to the general, unexpurgated. General Berry, in turn, adopted the Browder-Peach views as his own without much rewording. That plaintiff may not have known Berry’s remarks reflected Peach’s effort before Browder cannot be permitted to obscure the consideration that the ex parte aspect of the communication dropped entirely out before the Army Command made its final decision. This is so because there was no danger that the final Army decision would be based on facts or arguments which plaintiff had been denied an opportunity to rebut.
In the majority’s view, however, the focus is not on the final decision made by the U.S. Army Forces Command (FORSCOM) but on the recommendation to it made by Berry. General Berry’s views with regard to the grievance officer’s recommendations may, arguably, have been tainted by the errant communication. But we have never ruled, nor would it make good sense to rule, that personnel actions must be invalidated, no matter how abundant the evidence and how complete the opportunities for administrative remedy of any procedural errors, merely because there exists the possibility that a recommendation somewhere below the final decision-making administrative level was possibly tainted by conduct failing to comport with our exacting standards of due process. Reason demands that there be some inquiry into the substantiality of the harm; the causal nexus between the error and the final decision must be examined. Wathen v. United States, 208 Ct. Cl. 342, 357 n.9, 527 F.2d 1191, 1200 n.9 (1975), cert. denied, 429 U.S. 821 (1976).
Since there is no such nexus and no prejudice is established here, the court has developed a remarkable *303argument to justify the result it has reached. It has based its result on hypothetical facts. It says that although General Berry was not the final decision maker he would have been had he approved the examiner’s report favorable to plaintiff. True, but we need not reach that point because he did not approve the report. That is the fact we have to deal with in this case. When we face the facts that exist, Camero falls out of the window. There is no authority in statute, regulation, or judicial precedent for the court’s new holding that an employee "is entitled to have the first official who can order his reinstatement make that choice, if he wishes to accept the recommendation, without infected ex parte communications.” If that is the law there is no point at all in having an appellate process to correct errors below. Utopia cannot be ushered in by such judicial fiat and that is why the administrative appellate procedure here was provided. The administrative process should be given the chance to correct its own mistakes, as it did here, without judicial interruption. That process has rendered full justice by due process here.
The Camero case has been cited in a few contract cases, as shown in note 8 of the court’s opinion. I do not suppose anyone would argue but that it is improper for any final decision maker as, for instance, a board of contract appeals, to accept ex parte advice and information. Of course, the ideal situation would be for no one to consider ex parte information. Camero is a suspect holding because it laid down a rule for military commanders which does not take into account the fact that they are not judges and ought not to be held to the judicial code of conduct in making their decisions. The duty of a commander would seem to dictate that before he fires someone on the recommendation of a grievance examiner that he ought to consider all the unbiased views he can get from his subordinates who have the capability of evaluating the matter at hand and who were not adversary parties to plaintiff. The product of a grievance hearing is not a judicial nor a final decision of any kind. It is a recommendation the commanding general can accept or reject. The instant case, which extends Camero, would bar the general, the final decision maker, from contact with subordinates whose only offense was that they had talked with their own subordinates who had *304a part in the affair. The general would thus be deprived of the advice of his lawyer, the staff judge advocate, and of his civilian personnel chief, the very people most likely to have the judgment a commander needs to help him arrive at a considered final decision on the grievance examiner’s recommendations. I hasten to agree that it would be most improper for anyone, however, to provide new evidence to the final decision maker, evidence that the aggrieved party had no chance to rebut. That is the dictionary and common-sense meaning of ex parte. If that had happened in the instant case I would go along with the majority opinion. But, that is not the situation here. Camero is just not in point even if its prohibition of second-degree ex parte contact is sound. What is more helpful here is what the Supreme Court has taught in Gonzales v. United States, 348 U.S. 407 (1955).
Gonzales was convicted under the Universal Military Training and Service Act for refusal to submit to induction in the Armed Forces. He had defended upon the ground that as a member of Jehovah’s Witnesses he could not participate in war. He lost his case before his local draft board and went to the appeal board for a hearing. He lost there, too. The FBI investigation resulted in a Department of Justice report considered by the board and adverse to Gonzales, but no copy of it was given to him prior to the board’s final decision. As in the instant case with the reports to General Berry and from him to FORSCOM, the report of the Department of Justice was only advisory to the appeal board. But, since plaintiff Gonzales did not see that information and since the board was the only decision-making body to pass finally on the entire file, the court said that Gonzales should have had a chance to reply to the Department of Justice recommendation so that the board would have "aZZ of the relevant data.” (Emphasis in text.) That is the very situation here except that our plaintiff did have his chance to comment on all of the relevant data before the final decision maker. Since he had that opportunity, and took advantage of it, the Gonzales holding makes it plain that he has no basis for his claim. He was not prejudiced by any so-called ex parte conversations below and has no right to recover since he has had full due process. As long as there is a right of appeal and a chance *305to answer the charges and the appellate decision is thus free from all taint, as here, plaintiff has had all the procedural protection he is entitled to. This is the concept of ex parte evidence treatment accorded everywhere. The Administrative Procedure Act, for instance, defines ex parte communications as those with respect to which prior notice to affected parties is not given. 5 U.S.C. § 551(14) (1976). See also 1 K. Davis, Administrative Law Treatise § 6:18 (2d ed. 1978).
I do not endorse the Government’s argument that plaintiffs, to prevail on civilian back pay claims, must prove not only a procedural error but also show that the action would have led to a different result "but for” the error. Such a rule would place an impossible burden on plaintiffs, and we would not countenance it. The Government’s argument is based on a misreading of several recent cases, including Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), and Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). Both of those cases, however, have something to offer here. Nothing in the Supreme Court’s decision explicitly holds the procedure there outlined is applicable to federal employment cases where, as here, alleged procedural error arises to the dignity of a constitutional claim of deprivation of due process. However, since constitutional rights were involved in Mt. Healthy, we can safely conclude that the rights of federal employees are no less protected than those of Ohio school teachers whatever the origin of complaint. Other indications, however, that the court intends rights not to be manufactured on the basis of harmless errors are rife within the law for there is an unmistakable tendency to temper generosity with pragmatism and to continue the inquiry, once error is found, to determine its likely effect on the results complained of. As the court concluded in Mt. Healthy, the proper test is one that protects against the invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights. That principle is not respected by the court in the instant case.
The defendant reads the two cases cited in the paragraph above as supporting the imposition of a burden solely on the employee to show the causal effect of the error, while *306there should be no doubt that the courts in those cases believed the principal burden must lie with the defendant once an error has been shown and an initial burden of going forward with evidence of prejudice has been met. The rules in those cases would permit a fair, just, and practical result here. Plaintiff has met his burden of showing the occurrence of a procedural error, and he has met his burden of showing that his error may not have been harmless, since the ex parte communication turned Browder, at least, completely around. As in Mt. Healthy, defendant would ordinarily now be given opportunity to show that the error was harmless and that plaintiff would have been discharged even absent the alleged procedural error. Of course, the record now before us supports such a finding, and on this motion plaintiff does not contest the charges of his inefficiency found to be supported by the examiner. It would be useless, therefore, to remand.
The second critical distinction between this case and Camero involves plaintiffs deliberate bypass of two administrative opportunities to correct the error of which he now complains after his case left the Army. Here, plaintiff was offered a hearing de novo before an administrative subdivision of the Civil Service Commission, the Federal Employee Appeals Authority (FEAA). He waived his rights to such a hearing, although he alleged to the FEAA that General Berry’s recommendation "appear[s] to be perfunctory approval of a subordinate’s decision.” If plaintiff had availed himself of the opportunity for a hearing de novo before the FEAA, the full story of the ex parte communication would have become known and any remaining prejudice, if demonstrated, could at that time have been cured. Thus, even if FORSCOM’s decision was at all tainted by Peach’s letter to Browder, the FEAA’s decision could not have been, particularly if plaintiff had used the hearing procedure. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974). I do not mean to suggest that his failure to accept the offer of a hearing resulted in a less trustworthy decision by the FEAA, for that body’s detailed findings were based on a careful study of a voluminous record including plaintiffs arsenal of arguments on both procedural and substantive issues. (Most of those arguments, it appears, plaintiff has now abandoned.) But, if there is any doubt about the *307quality of the FEAA’s review, it is plaintiff who is responsible that the facts were not more thoroughly developed then.
Furthermore, when plaintiff thereafter appealed to the Civil Service Commission’s Appeals Review Board (ARB), despite his suspicion expressed to the FEAA that Berry’s decision rested on someone else’s analysis, he did not include among his endless arguments this issue on which he now pins all his hopes. The Appeals Review Board simply had no opportunity to rule on the issue of the ex parte communication because plaintiff never mentioned it to them. He says he did not know of it until he obtained discovery in this court, but his own allegations before the FEAA show his concern on this subject, a concern which he could have had aired but instead relinquished in favor of other arguments which have since completely failed him and are abandoned. It just cannot be said that plaintiff was ignorant of the error he now bemoans, for what ignorance remained resulted from his failure to act on the information he did have. Thus, his actions before the FEAA and the ARP waived the issue he now relies on, for our cases uniformly hold that contentions not raised at all levels of administrative review shall, absent special circumstances, be foreclosed from judicial review. Grover v. United States, 200 Ct. Cl. 337, 345 (1973); Haynes v. United States, 190 Ct. Cl. 9, 12-14, 418 F.2d 1380, 1382-83 (1969); Pine v. United States, 178 Ct. Cl. 146, 149, 371 F.2d 466, 467-68 (1967). This well-established rule, grounded in compelling considerations of public policy, forbids us from acting on arguments which could as well have been made several years ago. Yet the court today not only acts on the basis of these long-waived arguments but, worse, grants back pay for the entire period that plaintiff failed to raise them.
A final point worthy of some mention involves a consideration ignored in Camero. This is the matter of judicial intrusion on agency determinations of penalties. In this case the charge against plaintiff was that he had failed to perform his official duties in a satisfactory manner; in short, he was found inefficient and his separation was for the good of the service. The agency cited 20 examples of deficiencies in plaintiffs work. The grievance examiner determined that nine of these deficiencies had been proved. *308There was thus, even under his view, abundant evidence that plaintiff was inefficient. In effect, then, the examiner sustained the charge against plaintiff but merely found some of the specifications wanting. The only important difference between those responsible for the initial agency action and the grievance examiner concerned the penalty to be applied for the established charge of inefficiency. Parenthetically, every deciding official or administrative body that considered the matter agreed that plaintiff was inefficient, and plaintiff on this motion does not even deny there is substantial evidence to show it. Today’s decision thus does violence to the established rule that the court will not reverse an agency’s assessment of a penalty for inefficiency unless an abuse of discretion is proved. See, e.g., Grover v. United States, supra, 200 Ct. Cl. at 353 and cases there cited.
The court trivializes notions of due process by constitu-tionalizing a simple personnel matter despite both the harmlessness of any error which may have occurred and plaintiffs considered relinquishment of opportunites for administrative correction. For these reasons, I am compelled, respectfully, to dissent from the court’s opinion.