- 20 - District of Columbia Circuit] that most often reviews agency action. [Save Our Heritage, Inc. v. F.A.A., 269 F.3d 49, 61 (1st Cir. 2001); fn. ref. omitted.] The Court of Appeals added: Obviously, a court must be cautious in assuming that the result would be the same if an error, procedural or substantive, had not occurred, and there may be some errors too fundamental to disregard. But even in criminal cases involving constitutional error, courts may ordinarily conclude that an admitted and fully preserved error was “harmless beyond a reasonable doubt.” Agency missteps too may be disregarded where it is clear that a remand “would accomplish nothing beyond further expense and delay.” [Id. at 61–62; emphasis added; citations omitted.] The party seeking judicial review of an agency action bears the burden of demonstrating prejudice from any error. DSE, Inc. v. United States, 169 F.3d 21, 31 (D.C. Cir. 1999) (“Under the APA, we will not set aside agency action unless the party asserting error can demonstrate prejudice from the error” (internal quotation marks and brackets omitted)).2 It is no bar to application of the doctrine of harmless error that the agency error complained of is the omission of a statutory prerequisite. See, e.g., Hydro Engg., Inc. v. United 2 In certain circumstances, sec. 7491(a) imposes on the Commissioner the burden of proof in connection with factual issues relevant to determining the liability of the taxpayer for any income, estate, or gift tax. See sec. 7491(a)(1). Even if sec. 7491(a) is applicable to the determination of whether petitioner has demonstrated prejudice, petitioner has failed to introduce credible evidence of prejudice and, thus, must carry the burden of proof. See sec. 7491(a)(1).Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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