Taking “Due Account” of the APA’s Prejudicial Error Rule

The Administrative Procedure Act (APA) incorporates the principle of harmless error in its provision for judicial review. It instructs courts to take “due account” of the “rule of prejudicial error.” Pervasive as the rule is, no one has fully described how the rule operates in administrative cases. This Note seeks to fill the gap in the literature, and finds a half-finished, often inconsistent framework in need of completion.

Courts generally require challengers of agency action to demonstrate that errors were harmless, but on rare occasion will shift the burden to an agency. Wherever the burden lies, courts often choose one of two tests for prejudice. An “outcome-based” standard, applied primarily to substantive errors, asks whether the agency would have arrived at the same result absent its mistake. A “record-based” standard is used only for procedural errors and asks whether the record before the agency is different thanks to a mistake. But these two tests are used inconsistently, and other standards are often introduced in almost haphazard fashion.

The Note offers several suggestions to improve the prejudicial error framework, including a replacement for the record-based test called the “contribution-based” standard. Rather than focus on agencies, the proposed standard looks to challengers. It asks whether an error limited a challenger’s contributions to the administrative proceeding regardless of what other parties had to say. The test strikes a better balance between regulated parties’ interests in participating in the administrative process and other values.