Making Sense of Procedural Injury

Abstract:     
This essay uses the Supreme Court’s 2009 opinion describing the version of the harmless error rule courts must use in administrative law cases as a point of entry in attempting to understand the Court’s 1992 opinion recognizing that 'procedural rights are special' for standing purposes. It concludes that courts should apply an easy-to-meet plausibility test in determining whether an agency’s refusal to provide a procedure required by statute or by the constitution has a causal relationship with the challenged agency action sufficient to allow the petitioner to obtain review of the action based on a procedural injury theory. Such a plausibility test complements well the administrative law version of the harmless error rule. By contrast, adoption of the 'substantially probable' test of causation suggested in an en banc opinion of the D.C. Circuit would have significant adverse effects on administrative law and would render the harmless error rule worthless.

Number of Pages in PDF File: 27

Keywords: administrative law, harmless error rule, plausibility test, substantially probable test

working papers series