Michael E. Nestor - Page 20




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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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