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statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The
reviewing court shall--
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(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 law;
* * * * * * *
(D) without observance of procedure required by
law;
* * * * * * *
In making the foregoing determinations, the court shall
review the whole record or those parts of it cited by a
party, and due account shall be taken of the rule of
prejudicial error. [Emphasis added.]
The “rule of prejudicial error” (otherwise the doctrine of
harmless error), as applied to an administrative action, provides
that the reviewing court shall disregard procedural errors unless
the complaining party was prejudiced thereby. As recently
summarized by the Court of Appeals for the First Circuit:
The doctrine of harmless error is as much a part
of judicial review of administrative action as of
appellate review of trial court judgments. Indeed, the
Administrative Procedure Act, 5 U.S.C. � 706, says that
in reviewing agency action, the court “shall” take due
account of “the rule of prejudicial error,” i.e.,
whether the error caused actual prejudice. And while
many of the decisions involve harmless substantive
mistakes, no less an authority than Judge Friendly [in
Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir. 1965)]
has applied the harmless error rule to procedural
error, as has the circuit [Court of Appeals for the
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