Joseph D. and Wanda S. Lunsford - Page 16




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          powers are established in part by APA section 706.  In pertinent            
          part, APA section 706 provides:                                             
               The reviewing court shall –-                                           
                         *    *    *    *  *  *  *                                    
               (2) hold unlawful and set aside agency action,                         
               findings, and conclusions found to be –-                               
               (A) arbitrary, capricious, an abuse of discretion,                     
               or otherwise not in accordance with the law;                           
                         *    *    *    *  *  *  *                                    
               (D) without observance of procedure required by                        
               law;                                                                   
                         *    *    *    *  *  *  *                                    
               [Emphasis added.]                                                      
               If section 6330 requires a hearing before a determination              
          can be made, then we, as a reviewing court, can set aside the               
          determination as “not in accordance with the law” or “without               
          observance of procedure required by law”.  To do so, however, we            
          must have jurisdiction over the matter.  That, of course, is                
          provided by section 6330(d)(1).  To hold that we have no                    
          jurisdiction to exercise our authority under APA section 706                
          makes no sense.                                                             
               The application of APA section 706 is established by other             
          provisions of the APA.  In pertinent part, APA section 702                  
          provides: “A person suffering legal wrong because of agency                 
          action, or adversely affected or aggrieved by agency action                 







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