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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).
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