Taking "due account" of the apa's prejudicial-error rule

Virginia Law Review

Volumn 96, Issue 7, 2010, Pages 1727-1765

  Smith, Craig ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 78650580843     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (231)

1. James T. O'Reilly, Administrative Rulemaking: Structuring, Opposing, and Defending Federal Agency Regulations 316 (1983).
2. The terms are opposite sides of the same judicial-review coin. Except where circumstances dictate, this Note will freely use one term or the other regardless of which is used in the relevant statutory provision, judicial opinion, or scholarly article.
3. 5 U.S.C. § 706 (2006). The APA was recodified in its current location in the U.S. Code as part of a sweeping reorganization of the laws governing the federal government. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 381 (codified as amended at 5 U.S.C. §§ 551-808 (2006)).
4. Only once before had the Court explicitly apphed the harmless-error provision of § 706. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007) (noting that an erroneous, "stray statement" by the EPA was not sufficient to merit vacating and remanding adjudication of permit application). The provision has otherwise appeared in the U.S. Reports only when the Court cited the entire text of Section 706 for some other purpose. See, e.g., Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375 n.21 (1989).
5. 129 S. Ct. 1696, 1700 (2009).
6. See id. at 1706 (discussing the link between 38 U.S.C. § 7261(b)(2) and 5 U.S.C. § 706). Compare 38 U.S.C. (2006) ("[T]he court... shall take due account of the rule of prejudicial error."), with 5 U.S.C. § 706 ("[D]ue account shall be taken of the rule of prejudicial error.").
7. Sanders, 129 S.Ct. at 1706.
8. Id. at 1706 (noting general agreement among circuits);
9. see infra Section I.B. for more discussion.
10. See generally, Nevada v. Dept. of Energy, 457 F.3d 78,90 (D.C. Cir. 2006) (identifying a line of cases applying the APA's harmless-error rule to activities carried out under the National Environmental Policy Act ("NEPA")). Those acts excluded from review by § 701 are of course not subject to prejudicial-error analysis under § 706. See infra note 15 and accompanying text.
11. The first harmless-error statute was enacted even earlier. See infra Section I.A.
12. See C Robert Luthman, Conway v. Principi, Mayfield v. Nicholson, and (Re?)Defining the Harmless Error Doctrine in Light of the Veterans Claims Assistance Act of 2000,16 Fed. Cir. B.J. 509, 510-17 (2007) (providing a capsule summary of the history of harmless error as appulied in civil, criminal, and administrative appeals);
13. James G. Reinhart, The Rule of Prejudicial Error and 38 U.S.C. § 5103(a): What Led to the United States Supreme Court Decision in Shinseki v. Sanders and the Need for a Clear Standard of Prejudice, 2 Veterans L. Rev. 1,37-41 (2010).
14. Courts are more concerned about this at other stages of judicial review, such as when considering standing to challenge a procedural error. For interesting discussion on that topic - plus its relationship to harmless error - see Richard J. Pierce, Making Sense of Procedural Injury, 62 Admin. L. Rev. 1, 3-8 (2010).
15. Jerry L. Mashaw et al., Administrative Law: The American Public Law System 9 (5th ed. 2003).
16. 5 U.S.C. § 701 (2006);
17. accord Consol. Gas Supply Corp. v. Fed. Energy Regulatory Comm'n, 606 F.2d 323, 328-29 (D.C Cir. 1979) (describing the breadth of the APA's applicability).
18. 5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.");
19. see also id. § 704 (describing the form of review under the APA).
20. Id. § 706(2).
21. Id. § 706(2)(A).
22. Id. § 706(2)(D).
23. Id.§ 706(2)(E).
24. Id. § 706. The provision reads in full: "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."
25. See Noncompliance with the APA as Reversible Error: The Function of "Prejudicial Error" and "Seasonable Objection," 6 Stan. L. Rev. 693, 694-95 (1954) (raising these same issues).
26. The rule of prejudicial error could have applied to many fewer reviews under the APA. Early drafts of the Act merged the rule into one of the Act's six standards of review - the one now listed as § 706(2)(D). In those drafts, courts were to set aside agency action conducted "without observance of procedure required by law resulting in prejudicial error." During the legislative process, the reference to prejudicial error was moved to its current home at the tail end of what is now § 706. For discussion of this and other revisions, see Raoul Berger, Do Regulations Really Bind Regulators?, 62 Nw. U. L. Rev. 137, 160-62 (1967).
27. But see id. at 160 (giving meaning to "due" in "due account").
28. There are, however, later-enacted statutes that use the "due account" language and presumably take gloss from § 706. See, e.g., Program Fraud Civil Remedies Act of 1986 § 6103(a), 31 U.S.C. § 3805 (2006);
29. Congressional Accountability Act of 1995 § 406,2 U.S.C. § 1406(d) (2006).
30. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (explaining that the federal habeas statute's "consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner's habeas petition"). Looking to an existing harmless-error rule comports with the Supreme Court's practice of giving terms not defined within the APA their generally understood meaning at the time of its enactment.
31. See Dir., Office of Workers' Comp. Programs, Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 275 (1994) (interpreting undefined term of the APA as following the definition generally accepted at the time of the enactment of the APA).
32. Roger A. Fairfax, Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, 93 Marq. L. Rev. 433, 435-36 (2009).
33. See Deery v. Cray, 72 U.S. (5 Wall.) 795, 807-08 (1866) (announcing harmless-error rule that "it must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the party's rights");
34. see also Chapman v. California, 386 U.S. 18, 24 (1967) (recognizing common-law burden as properly placed on appellee).
35. See Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 Va. L. Rev. 1, 9-11 (2002).
36. 28 U.S.C. § 391 (1925) (repealed by Judicial Act of 1948). The language of the amended version is much more susceptible of application to administrative appeals: "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." Id. § 2111 (2006).
37. Id. § 391 (1925).
38. Cf. McDonough Power Equip, v. Greenwood, 464 U.S. 548, 553 (1984) ("The harmless-error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for 'error' and ignore errors that do not affect the essential fairness of the trial.").
39. See McCandless v. United States, 298 U.S. 342, 347-48 (1936) (concluding that the common-law rule remains in place for errors that affect the substantial rights of appellants).
40. 269 U.S. 411, 421 (1926).
41. 328 U.S. 750, 761-62 (1946).
42. Id. at 761. See generally id. at 757-66 (complete discussion of the harmless-error rule).
43. Id. at 761.
44. Id. at 761-62.
45. 129 S. Ct. 1696, 1704-05 (2009) ("We have previously warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record.");
46. id. at 1707 ("We have previously made clear that courts may sometimes make empirically based generalizations about what kind of errors are likely, as a factual matter, to prove harmful.").
47. The Supreme Court has not decided whether the administrative doctrine should track the general doctrine even more closely. Compare id. at 1704 ("We have no indication of any relevant distinction between the manner in which reviewing courts treat civil and administrative cases."), with FCC v. Pottsville Broad. Co., 309 U.S. 134, 144 (1940) ("[T]o assimilate the relation of... administrative bodies and the courts to the relationship between lower and upper courts is to disregard the origin and purposes of the movement for administrative regulation and at the same time to disregard the traditional scope, however far-reaching, of the judicial process.").
48. Courts interpreting the prejudicial-error command of § 706 would probably agree with this assessment, having consistently stated that general harmless-error principles inform the APA requirement. E.g., Braniff Airways v. Civil Aviation Bd., 379 F.2d 453, 465 (1967) ("Although the standards governing its application may differ, the 'harmless error' principle announced for our general jurisprudence by decision and statute... is applicable to the review of the decisions of administrative agencies.") (citation omitted).
49. 129 S. Ct. at 1706.
50. For the few cases that reach the other conclusion, see the Ninth Circuit cases discussed infra Part II.A.2. As that Part suggests, those cases have failed to gain traction even in the Ninth Circuit and are probably based on an erroneous understanding of precedent.
51. 148 F.3d 1142, 1156 (D.C Cir. 1998). For examples of language from other opinions citing or approving of Air Canada, see Chamber of Commerce of the U.S. v. SEC, 443 F.3d 890, 904 (D.C. Cir. 2006)
52. and Friends of Iwo Jima v. National Capital Planning Commission, 176 F.3d 768, 774 (4th Cir. 1999). Air Canada, like many opinions cited in this Note, does not actually make this a holding because the court found that no error occurred. Even so, these statements are cited by courts as authoritative, and this Note will treat them as such.
53. E.g., City of Sausalito v. O'Neill, 386 F.3d 1186, 1220 (9th Cir. 2004);
54. Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788,797 (5th Cir. 2000).
55. Blatant violation of other APA provisions can trigger a burden shift too. See Portland Audubon Soc'y v. Endangered Species Comm'n, 984 F.2d 1534, 1548 (9th Cir. 1993) (shifting the burden following a violation of § 554 of the APA, which generally bars ex parte contacts during ongoing administrative activity).
56. U.S.C. § 553 (2006);
57. see also Ala. Power Co. v. FERC, 160 F.3d 7, 10-11 (D.C. Cir. 1998) (shifting the burden implicitly after the agency promulgated a rule without the notice required by a program-specific statute).
58. Cf. W. Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) ("When substantive judgments are committed to the very broad discretion of an administrative agency, procedural safeguards that assure the public access to the decision-maker should be vigorously enforced.").
59. McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1324 (D.C. Cir. 1988). For a more complete treatment of McLouth,
60. see M. Elizabeth Magill, Images in Representation, Issues in Legal Scholarship 12-14, 15 n.41 (2005)
61. (discussing Richard B. Stewart, Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975)).
62. Sugar Cane Growers Coop, of Fla. v. Veneman, 289 F.3d 89, 96 (D.C Cir. 2002). But not every federal jurist thinks that this is a good way to vindicate procedural rights.
63. See Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982) (Kilkenny, J., concurring in part and dissenting in part) ("To permit a party to prevail where no harm has been demonstrated is nothing short of allowing litigants to use the federal courts to complain about things that in no way affect them.").
64. See Kotteakos v. United States, 328 U.S. 750, 760-61 (1946) (using these terms while assigning the burden to appellee).
65. See infra Subsection II.B.2.
66. Ronald M. Levin, Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Admin. L. Rev. 239, 261-62, 282-84 (1986).
67. Id. at 284 ("Generally, however, courts have applied the principle without committing themselves to any particular verbal formula summarizing it.").
68. See discussion infra Part II.B.
69. See, e.g., Berger, supra note 22, at 138;
70. Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569,569-70 (2006);
71. Note, Violations By Agencies of their Own Regulations, 87 Harv. L. Rev. 629, 629 (1974). These cases are governed by what is often called the Accardi doctrine.
72. See Reinhart, supra note 11, at 1-2.
73. 129 S. Ct. 1696, 1707 (2009) ("We have previously made clear that courts may sometimes make empirically based generalizations about what kind of errors are likely, as a factual matter, to prove harmful.").
74. E.g., Olin Indus., Inc. v. NLRB, 192 F.2d 799, 799 (5th Cir. 1951) (filing charges by regular instead of certified mail was "mere technical defect" because "[i]t did not affect the substantial rights" of the parties).
75. E.g., Econ. Opp. Comm'n of Nassau County v. Weinberger, 524 F.2d 393, 399-400 (2d Cir. 1975) (blending together the modes of analysis described infra Sections II.A. and II.B).
76. E.g., Air Canada v. Dep't of Transp., 148 F.3d 1142, 1156-57 (D.C. Cir. 1998) (considering both record-based and outcome-based arguments of prejudice foUowing demonstration of a procedural error, but keeping them distinct).
77. See, e.g., Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 764-66 (9th Cir. 1986) (holding error harmless because purposes of notice requirements in program act were fulfilled).
78. Outcome-based and record-based are descriptors created for this Note.
79. 379 F.2d 453,466 (D.C. Cir. 1967) (quoting Mass. Trs. of E. Gas & Fuel Assoes, v. United States, 377 U.S. 235, 248 (1964)).
80. E.g., Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007) (holding that the EPA's allegedly erroneous statement that its actions were required by statute "was dictum, and it had no bearing on the final agency action that respondents challenge"). The Court has stated that prejudice analysis need not be explicit when the harm from errors is obvious.
81. Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) ("Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said.").
82. As an example, the Tenth Circuit has stated that evidence erroneously admitted to an adjudication is prejudicial only if "if it can be reasonably concluded that with... such evidence, there would have been a contrary result." Gunderson v. U.S. Dep't of Labor, 601 F.3d 1013, 1021 (10th Cir. 2010) (quoting
83. Sanjuan, Inc. v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998)).
84. E.g., Allison v. Dep't of Transp., 908 F.2d 1024, 1029-30 (D.C. Cir. 1990) (using "substantial evidence");
85. Delta Air Lines, Inc. v. Civil Aeronautics Bd., 564 F.2d 592, 598 (D.C. Cir. 1977) ("The court should affirm if it appears all the important basic findings made by the Board are supported by substantial evidence.").
86. 539 F.2d 788, 796 (1st Cir. 1976).
87. Id. at 789.
88. Id. at 789, 791.
89. Id. at 792.
90. Id. at 794-95.
91. Id. at 796. The judicial officer mistakenly understood the medical condition to be the result of another ailment, like an infection. The condition was actually an "independent condition." Id.
92. Id. (quoting NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir. 1953)).
93. Id. at 797.
94. Id. at 798.
95. See Rybacheck v. EPA, 904 F.2d 1276, 1295 (9th Cir. 1990) ("We acknowledge that the EPA's data may not be consistent to every decimal point. [A]ny slight misstatements in some of the EPA's calculations seem fairly understandable and ... the misstatements are so minor that [the challengers] could [not] have been harmed by them.").
96. For a recent example, see City of Portland v. EPA, 507 F.3d 706, 716 (D.C. Cir. 2007) (holding agency's reliance on outdated scientific data harmless where the reliance did not affect the final rule). Aware that agencies are excused from their errors in these situations, the First Circuit has reminded reviewers to be careful with outcome-based review.
97. Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 61 (1st Cir. 2001) ("Obviously, a court must be cautious in assuming that the result would be the same if an error, procedural or substantive, had not occurred....").
98. See United States v. Utesch, 596 F.3d 302, 312 (6th Cir. 2010) ("[A] reviewing court must focus not merely on the ultimate rule but on the process of an administrative rulemaking; otherwise, an agency could always violate the APA's procedural requirements based on the representation that it would have adopted the same rule had the proper process been followed.").
99. 378 F.3d 1059, 1071 (9th Cir. 2004), amended by 387 F.3d 968 (9th Cir. 2004).
100. 421 F.3d 797,807 (9th Cir. 2005).
101. See supra note 42 and accompanying text; see also Shinseki v. Sanders, 129 S. Ct. 1696, 1706-07 (2009) (declining to decide lawfulness of presumptions similar to burden-shifting described supra Section I.A.).
102. Gifford Pinchot, for example, cites three Ninth Circuit decisions, none of which discuss whether to place the burden on agencies in all cases. See 378 F.3d at 1071 ((citing Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993);
103. Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992);
104. Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982)). At least one of the three belongs in the utter failure category and is therefore not an appropriate case to cite for Gifford Pinchot's point. See Buschmann, 676 F.2d at 358.
105. 378 F.3d at 1072. The court was more circumspect in Natural Resources Defense Council: "[W]e hold that the Forest Service's mistake had some bearing on the substance of the Forest Service's decision to adopt [a particular regulation]." 421 F.3d at 807-08.
106. See infra Subsection II.B.2.
107. See, e.g., Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 649 (D.C. Cir. 1994);
108. TexasCapital Contractors v. Abdnor, 933 F.2d 261, 269-70 (5th Cir. 1990). In comparison, the record-based test has not been applied to substantive mistakes.
109. Compare, e.g., Friends of Iwo Jima v. Nat'l Capital Planning Comm'n, 176 F.3d 768, 774 (4th Cir. 1999) (outcome-based standard applied to procedural error),
110. with Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237-38 (D.C. Cir. 2008) (recordbased standard applied to procedural error).
111. 294 F.3d 173 (D.C. Cir. 2002).
112. Id. at 175-76.
113. Id. at 177.
114. Id. at 178.
115. Id. at 179.
116. Id. at 182.
117. See id. For example, the challengers would have argued that the land designated to serve as a replacement for the disrupted habitat was already covered by an openspace easement and therefore offered no new protection for the squirrel. Compare id. (finding harm where challenger could identify arguments it would have made if it had been given the opportunity to comment), with U.S. Telecom Ass'n v. FCC, 400 F.3d 29, 41 (D.C. Cir. 2005) (holding slightly defective notice harmless because challenger could not identify any new arguments that had not been made during the comment period).
118. See Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992) ("An agency is not required to adopt a rule that conforms in any way to the comments presented to it. So long as it explains its reasons, it may adopt a rule that all commentators think is stupid or unnecessary.").
119. Gerber, 294 F.3d at 184.
120. United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1218 (D.C. Cir. 1980);
121. cf. Safari Aviation, Inc. v. Garvey, 300 F.3d 1144, 1151-52 (9th Cir. 2002) (holding failure to consider challenger's arguments harmless because agency considered another interested party's arguments of the same substance).
122. See MBH Commodity Advisors v. Commodity Futures Trading Comm'n, 250 F.3d 1052, 1064 (7th Cir. 2001).
123. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 540-41 (D.C. Cir. 1983);
124. see also Chem. Mfrs. Ass'n v. EPA, 870 F.2d 177, 202 (5th Cir. 1989) (quoting Small Refiner, 705 F.2d at 540-41).
125. Util. Solid Waste Activities Group v. EPA, 236 F.3d 749,755 (D.C. Cir. 2001);
126. see also Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) (holding erroneously truncated comment period nonprejudicial because challenger "failed to identify any substantive challenges it would have made had it been given additional time").
127. Ghaly v. INS, 48 F.3d 1426, 1435 (7th Cir. 1995).
128. Also, the Ninth Circuit employs a special test for procedural errors during rulemaking, asking whether the challengers had actual notice of the proposed rule and the comment period in spite of the technically deficient notice. See, e.g., Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995).
129. Compare, e.g., Miami-Dade County v. EPA, 529 F.3d 1049, 1061 (11th Cir. 2008) (record-based test),
130. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237-38 (D.C. Cir. 2008) (same),
131. and Safari Aviation, Inc. v. Garvey, 300 F.3d 1144, 1151-52 (9th Cir. 2002) (same),
132. with Powers v. U.S. Dep't of Agric., 245 F. App'x 924, 929 (11th Cir. 2007) (outcome-based test),
133. Am. Coke & Coal Chems. Inst. v. EPA, 452 F.3d 930, 941 (D.C. Cir. 2006) (same, in dicta), and Inst,
134. for Wildlife Prot. v. Norton, 149 F. App'x 627, 629 (9th Cir. 2005) (same).
135. St. Anthony Hosp. v. U.S. Dept. of Health & Human Servs., 309 F.3d 680, 698-99 (10th Cir. 2002).
136. Conservation Law Found, v. Evans, 360 F.3d 21,29-30 (1st Cir. 2004).
137. 595 F.2d 207, 215 (5th Cir. 1979).
138. See Texas v. Lyng, 868 F.2d 795, 798-99 (5th Cir. 1989) (declining to shift the burden as in U.S. Steel). The D.C Circuit later rejected U.S. Steel, calling it a per se rule against finding harmless error. McLouth Steel Prods.
139. Corp. v. Thomas, 838 F.2d 1317, 1324 (D.C. Cir. 1988) (declining to "endorse the Fifth Circuit's blanket rule" against conducting any prejudicial-error analysis after an utter failure).
140. But see Magill, supra note 48, at 13 (questioning the D.C. Circuit's distinction in McLouth).
141. 950 F.2d 741,752 (D.C. Cir. 1991).
142. 838 F.2d at 1324 ("Even if the challenger presents no bases for invalidating the rule on substantive grounds, we cannot say with certainty whether petitioner's comments would have had some effect if they had been considered when the issue was ooen.").
143. The other well-know burden shifting case, Sugar Cane Growers Cooperative of Florida v. Veneman, also fits this description. 289 F.3d 89,96-97 (D.C. Cir. 2002).
144. Most burden-shifting cases are discussed or cited in this Section. The other burden shifts that I have identified are in Alabama Power Co. v. FERC, 160 F.3d 7, 10-11 (D.C. Cir. 1998) and
145. Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir. 1993).
146. 315 F.3d 369, 376-77 (D.C. Cir. 2003).
147. Id. at 377 (noting possible prejudice to Sprint, including the difficulty of persuading an agency to revoke an existing rule as compared to defeating a proposed rule).
148. See AFL-CIO v. Chao, 496 F. Supp. 2d 76, 88-90 (D.D.C. 2007) ("[T]he D.C. Circuit has relaxed the showing required of challengers where the agency has completely failed to comply with notice-and-comment procedures.");
149. see also Chamber of Commerce of the U.S. v. SEC, 443 F.3d 890, 904 (D.C. Cir. 2006) (distinguishing its facts from those of McLouth, where the court required only a "limited showing of prejudice" from the challengers following an "outright dodge of APA procedures").
150. 413 F.3d 999, 1006 (9th Cir. 2005);
151. see also Buschmann v. Schweiker, 676 F.2d 352, 357-58 (9th Cir. 1982) (invalidating interim amendment to Social Security regulation for lack of notice-and-comment period).
152. Paulsen, 413 F.3d at 1006-07 (analyzing Ninth Circuit precedent).
153. The closest an agency has come to surviving a burden shift is in United States v. Dean, where one judge on the panel concluded that an agency's utter failure was in fact harmless. 604 F.3d 1275, 1288-89 (11th Cir. 2010) (Wilson, J., concurring in the result). The other judges found that § 553's good-cause exception permitted the rule to stand, which obviated the need to decide the prejudice question.
154. Id. at 1278-82 .
155. 379 F.2d 453 (D.C. Cir. 1967 ).
156. See Magill, supra note 48.
157. The challengers argued that the Board's conclusion was unsupported by substantial evidence and should have been invalidated under § 706(2)(E). Braniff, 379 F.2d at 462.
158. Id. at 466-67.
159. Id. at 466
160. (quoting Mass. Trs. of E. Gas & Fuel Assocs, v. United States, 377 U.S. 235, 248 (1964) (non-APA case)).
161. 595 F.2d 207, 215 (5th Cir. 1979). The opinion is more known doctrinally for shifting the burden of proof for prejudicial error. See supra Subsection II.B.2.
162. 595 F.2d at 215
163. (quoting Braniff, 379 F.2d at 466) (emphasis added);
164. see also Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir. 2001)
165. (quoting U.S. Steel's misquote of Braniff, 595 F.2d at 215).
166. Berryhill v. Shalala, 4 F.3d 993, *7 (6th Cir. 1993) (unpublished table decision).
167. Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982). The Ninth Circuit • cases in the Buschmann line employ both the Braniff "clearly had no bearing" language and different, independent tests for prejudice.
168. See, e.g., Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) (applying actual notice standard).
169. Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 786 n.6 (10th Cir. 2006) (dictum)
170. (quoting Buschmann, 676 F.2d at 358).
171. United States v. Dean, 604 F.3d 1275, 1288 (11th Cir. 2010) (Wilson, J., concurring).
172. 332 U.S. 194, 196 (1947).
173. This misuse of Braniff is somewhat ironic because the opinion's ensuing paragraphs form an early example of the outcome-based standard described supra Section II.A. Braniff may have been the first opinion to reach the conclusion that "[w]here a subsidiary finding is unsupportable or otherwise erroneous but the court is clear that its presence was not material to the ultimate finding, reversal is not appropriate." 379 F.2d at 466.
174. For reasons that are unclear, those words have garnered minimal attention, as only two cases appear to have cited Braniff on this point. See PDK Labs. v. DEA, 438 F.3d 1184, 1196-97 (D.C. Cir. 2006);
175. Kurzon v. U.S. Postal Serv., 539 F.2d 788, 796 (1st Cir. 1976).
176. Other circuits have quoted Massachusetts Trustees of Eastern Gas and Fuel Associates v. United States in the same fashion as the Braniff misquotes.
177. See Ngarurih v. Ashcroft, 371 F.3d 182,190 n.8 (4th Cir. 2004);
178. In re Watts, 354 F.3d 1362,1370 (Fed. Cir. 2004).
179. See Magill, supra note 48, at 13 ("Treating as prejudicial aU errors that have any effect on the procedure used or the substance of the decision would make the vast majority of errors harmful, an approach that is in tension with the statutory command that 'due account' be taken of the rule of prejudicial error.");
180. accord Texas v. Lyng, 868 F.2d 795, 799 (5th Cir. 1989) (same point).
181. While the First Circuit was hesitant to apply the rule of prejudicial error to procedural mistakes, it showed no compunction about applying the outcome-based standard in lieu of a record-based test once it had elected to consider the prejudicial effects of the error. Save Our Heritage v. FAA, 269 F.3d 49, 61-62 (1st Cir. 2001).
182. For another example of a procedural error subjected to outcome-based prejudice analysis, see Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 n.27 (D.C Cir. 1978).
183. Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1096 (2009).
184. Id. at 1096-97.
185. David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135, 138 n.8 (2010)
186. (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).
187. But some errors are indeed difficult to label. For example, is an agency's failure to conduct analysis required by regulation a substantive error (for incomplete reasoning) or a procedural mistake (for failing to follow the rules)? To see courts applying both tests and therefore implicitly choosing both answers to this question, see Rabbers v. Commissioner, Social Security Administration, 582 F.3d 647, 654-58 (6th Cir. 2009) and the cases cited in the opinion.
188. See supra Section II.C.
189. Law reviews are not devoid of any inquiry into whether courts could better apply the rule of prejudicial error. See Levin, supra note 52, at 282-84 (refraining the APA's command to consider harmless error as part of an exhaustive restatement of § 706). But the bulk of scholarship accepts how courts consider harmless error as a given while exploring other arguments.
190. See, e.g., Kristin E. Hickman, Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance With Administrative Procedure Act Rulemaking Requirements, 82 Notre Dame L. Rev. 1727, 1791-95 (2007) (exploring how the Department of Treasury has invoked the harmless-error doctrine to defeat certain challenges to rulemakings that violate the requirements of § 553 of the APA);
191. Merrill, supra note 55, at 606-07 (noting the open question of what sorts of agency rule violations should be excused by the rule of prejudicial error without exploration of how courts had been answering the question).
192. 400 F.3d 29, 41 (D.C. Cir. 2005).
193. 938 F.2d 659, 664 (6th Cir. 1991).
194. Id.
195. 294 F.3d 173 (D.C. Cir. 2002).
196. See discussion of Gerber supra Subsection II.B.1.
197. See supra Subsection II.B.1.
198. 294 F.3d at 182.
199. Cf. Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1152 (9th Cir. 2002) (holding agency's failure to consider comments from interested party harmless because another party had made substantially similar comments that were explicitly considered by agency).
200. See W. Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) ("When substantive judgments are committed to the very broad discretion of an administrative agency, procedural safeguards that assure the public access to the decisionmaker should be vigorously enforced.").
201. See Am. Coke & Coal Chem. Inst. v. EPA, 452 F.3d 930, 938 (D.C. Cir. 2006) ("Under the APA, notice requirements are designed... to ensure fairness to affected parties, and to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.") (internal quotations and numbering omitted).
202. See, e.g., Hickman, supra note 136, at 1792-93 ("The point of the APA's noticeand-comment rulemaking requirements is... to allow parties... to have an opportunity to present their case first before the agency.") (quotations omitted).
203. Note, Violations by Agencies of Their Own Regulations, 87 Harv. L. Rev. 629, 631-42 (1973) (discussing regulated parties' interest in consistent treatment in the context of requiring agencies to follow gratuitous regulations).
204. See Shinseki v. Sanders, 129 S. Ct. 1696, 1707 (2009) (identifying "the error's likely effects on the perceived fairness, integrity, or public reputation of [the] proceedings" as permissible considerations for harmless error).
205. Cf. Hickman, supra note 137, at 1806 ("[H]eavy judicial scrutiny of agency adherence to APA procedural requirements ensures that procedures designed to at least approximate the legislative process function as intended.").
206. Cf. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1670 (1975) ("Increasingly, the function of administrative law is not the protection of private autonomy but the provision of a surrogate political process to ensure the fair representation of a wide range of affected interests in the process of administrative decision.").
207. Note, supra note 148, at 630 ("[Unexplained deviations in treatment of persons in apparently similar situations may undermine public confidence in the agency's integrity and impartiality.").
208. See DSE, Inc. v. United States, 169 F.3d 21, 31 n.5 (D.C. Cir. 1999) ("The SBA clearly erred. It is equally clear, however, that its error was harmless. It would be an empty formality for us to remand the matter back to the SBA, a waste of time and resources that we decline to order.").
209. See Stewart, supra note 151, at 1763 ("Broad participation rights do not, by any means, ensure that all relevant interests will be represented before the agencies.").
210. See discussion supra Part II.
211. Examining errors for prejudice can include "among other case-specific factors, an estimation of the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error's likely effects on the perceived fairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make all the difference." Shinseki v. Sanders, 129 S. Ct. 1696, 1707 (2009).
212. See supra Subsection II.A.2.
213. E.g., BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642 (1st Cir. 1979) ("We must be satisfied... that given a new opportunity to comment, commenters would not have their first occasion to offer new and different criticisms which the Agency might find convincing.").
214. See generally Noncompliance with the APA as Reversible Error, supra note 21, at 693-94.
215. See, e.g., Anne M. Voigts, Note, Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel, 99 Colum. L. Rev. 1103,1113 n.52 (1999);
216. See, e.g., Anne M. Note, Contemporaneous Objection Rule, 79 Harv. L. Rev. 117, 117-20 (1965).
217. 344 U.S. 33 (1952).
218. Id. at 34-35.
219. Id. at 35.
220. E.g., Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1136 (D.C. Cir. 1994) (noting that because challengers never sought to reopen the record, "[t]heir failure to do so suggests either that they were satisfied that the evidence already presented would meet the test or that they had no further evidence to offer");
221. Riverbend Farms v. Madigan, 958 F.2d 1479, 1488 (9th Cir. 1992) ("This [impermissible] system of regulation existed for decades without challenge; it was only after some handlers ran into trouble with the Department of Agriculture that, in looking for an escape, they came up with this challenge.");
222. Brown Telecasters v. FCC, 289 F.2d 868, 870 (D.C. Cir. 1961) ("Brown's continued acquiescence in the understanding that the initial studio would be treated as available is palpably inconsistent with any notion of prejudice....").
223. The norm has already developed elsewhere in civil and criminal litigation. E.g., E. Stewart Moritz, The Lawyer Doth Protest Too Much, Methinks: Reconsidering the Contemporaneous Objection Requirement in Depositions, 72 U. Cin. L. Rev. 1353, 1354 (2004) (describing the practice that lawyers learn about objections as "Use it, or lose it").
224. See Pepperell Assoes, v. EPA, 246 F.3d 15, 27 (1st Cir. 2001) (explaining that seasonable objection rule "preserves judicial economy, agency autonomy, and accuracy of result by requiring full development of issues in the administrative setting to obtain judicial review") (internal quotation omitted).
225. This rule thus serves the same purpose as the exhaustion requirement, because it allows agencies to "apply its expertise... and correct its own errors." Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir. 1984).
226. For example, after the federal government awards contracts, losing offerors are often entitled by rule to meet with the agency that awarded the contract. See 48 CF.R. § 15.506(a)(1) (2009). During the debriefing, the agency must explain its rationale for choosing the winner over the losing offeror. § 15.506(d). In doing so, the agency tries to persuade the offeror that its reasoning was valid and that all competition rules were followed-in other words, that no prejudicial errors were committed.
227. Government-contract protests provide another example. See, e.g., Logistical Support, Inc., B-244155, 91-2 ¶ 247 (Comp. Gen. Sept. 16, 2001) (noting that bidprotest regulations bar award of protest costs against agencies that take prompt corrective action).
228. 539 F.2d 788, 797 (1st Cir. 1976) (dictum).
229. For an analogy from civil litigation, see Welch & Corr Construction Corp. v. Wheeler, 470 F.2d 140, 141 (1st Cir. 1972) ("[U]ntil objection is made, the court may not realize that the losing party believes it has a valid complaint. Calling the matter to the attention of the district court might entirely obviate the need of an appeal.").
230. Courts must of course take the responses for what they are worth. Post hoc reasoning by agencies is generally disfavored. See, e.g., Kan. Gas & Elec. Co. v. FERC, 758 F.2d 713, 717 (D.C. Cir. 1985) ("Although this court strongly disapproves of crediting an agency's post hoc explanations that seem to differ from the plain language of the agency opinion...."). These statements are no exception. Just as a challenger cannot win on the question of prejudice only on the strength of its original complaint to the agency, an agency cannot defeat a prejudice argument with only a postcomplaint statement. These insights will be helpful but not dispositive.
231. The Supreme Court reserved judgment on the permissibility of shifting the burden in Shinseki v. Sanders, but did so with language that strongly favors allowing such shifts. 129 S. Ct. 1696, 1706-07 (2009).