Michael E. Nestor - Page 19




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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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