ADMINISTRATIVE LAW: THE STATUS OF
"SUBSTANTIAL EVIDENCE"*
Part One**
Mr. Justice Jackson expressed a general reaction as to the purpose and
results of the Administrative Procedure Act 1 in Wong Yang Sung v. McGrath,2 when he said, "The Act thus represents a long period of stress and
strife; it settles long-continued and hard-fought contentions and enacts a
formula upon which opposing social and political forces have come to rest." 3
One of the focal issues of this half-century conflict relates to the scope
of judicial review to be given federal administrative adjudications.' It too
seemed to have terminated with the compromise 5 which resulted in section
10 (e) of the Administrative Procedure Act. 6
Within section 10 (e), however one area has continued to cause considerable difference of opinion among commentators and in the courts. The controversy involves the meaning of the phrase "substantial evidence" and the
effect of the Administrative Procedure Act and the Labor Management Relations Act of 1947 7 upon its judicial construction. The Administrative
Procedure Act provides in part that the reviewing court shall set aside agency
action found to be ".
.
. unsupported by substantial evidence . .
."
and
further that "In making the foregoing determinations the court shall review
the whole record ... " 8 The Taft-Hartley Act also adds the "whole record"
requirement in these words: "The findings of the Board with respect to
questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 9
The basic disagreement has been on the issue as to whether these statutes
intended any change in the scope of review and what effect would be given
to such intent by the courts.' 0 The purpose of this article is to reexamine
the term "substantial evidence" in light of this controversy, the pertinent
statutes, and recent judicial decisions in an effort to determine the present
judicial definition. In order to arrive at such a definition, it is necessary to
briefly review the early history of the phrase in administrative law and
subsequent developments through judicial application in the period 1920-1946.
The Early History
It is generally agreed that the beginnings of the substantial evidence rule
*Written by Daniel E. Matthews, while a senior student at the Washington College of Law,
American University.
*" Part Two, covering the period after the enactment of the Administrative Procedures Act,
will apear in Volume 4, Number I of this Review.
60 Stat. 237. c. 324 (1946), 5 U. S. C. § 1001 et. seq.
2339
U. S. 33 (1950).
5
1d, 339 U. S. at 40.
IThis article will not consider judicial review of rule-making or injunctive relief, nor will
it be concerned with review of the adjudication of state agencies.
5 Rep. Att'y Gen. Comm. Ad. Proc. 76 ef seq. (1941).
'60 Stat. 243 (1946), 5 U. S. C. § 1009 (e).
61 Stat. 136, c. 120 (1947), 29 U. S. C. § 151, (1946 ed. Supp. V). The popular phrase
"The Taft-Hartley Act" will be used in referring to this statute hereinafter.
860 Stat. 244 (1946), 5 U. S. C. § 1009 (e).
'61 Stat. 148 (1947), 29 U. S. C. % 160 (e). (1946 Supp. V).
10Dickinson, 33 A. B. A. J. 434 (1947). But see "33 A. B. A. J. 14 (1947); Davis, "50
Col. L. Rev. 559, 562 (1950).
in administrative law are found in the cases reviewing actions of the Interstate Commerce Commission. 1 The first indication is found in 1896, at a
time When the applicable statute provided that reports of the Commission
should be "prima facie evidence of the matters therein stated." 12 In reply
to the contentions of an appellant railroad that the Commission had not given
due weight to the facts! that tended to show that the circumstances of the
case justified the rates, the court said, "But the question was one of fact,
peculiarly within the province of the Commission, whose conclusions have
been accepted and approved by the Circuit Court of Appeals and we find
nothing in the record to make it our duty to draw a different conclusion." 13
After the enactment of the Hepburn Act 14 in 1906, provisions relating to
judicial review of Commission decisions were non-existent except in reparation cases. The necessary judge-made standards for judicial review, however, soon developed the substantial evidence rule. In Interstate Commerce
Commission v. Union Pacific Railroad' 5 the court reviewed the principles
developed for the scope of review and, stated, speaking of the Commission,
"Its conclusion, of course, is subject to review, but when supported by
evidence is accepted as final; not that its decision, involving as it does so
many and such vast public interests, can be supported by a mere scintilla
of proof-but the courts will not examine the facts further than to determine
whether there was substantial evidence to sustain the order." 1O
In 1913, the government contended that under the Hepburn Act 17 a Commission order was conclusive and could not be set aside even if wholly without substantial evidence to support it.18 The court not only concluded that
a finding without evidence was beyond the power of the Commission as a
matter of law,19 but examined the record to determine "...
whether there
was substantial evidence to support the finding." 20
The Federal Trade Commission Act, 2 1 enacted in 1914, included a provision
declaring "the findings of the Commission as to the facts, if supported by
testimony shall be conclusive." The present Act has substituted the word
"evidence" for "testimony" but, as Dean Stason has ably pointed out, the
legislative history of the Act conclusively shows that Congress, because of
the members' experience as lawyers and from its knowledge of the rule
developed for review of the Interstate Commerce decisions, intended and
did incorporate the "substantial evidence" standard into the Federal Trade
Commission Act. 22 Subsequently, Congress frequently used the phrases
11Stason, 89 U. Pa. L. Rev. 1026, 1040-1042 (1941); Stern, 58 Harv. L. Rev. 70, 74-75
(1944); Davis, Administrative Law, St. Paul, Minn., West Pub. Co., 1951, p. 870.
3224 Stat. 384-385 (1887).
49 U. S. C. A. § 16 (2).
13 Cincinnati, N. 0. & T. P. Ry. Co. v. Interstate Commerce Comm., 162 U. S. 184, 194
(1896).
1"-34 Stat. 584, c. 3591 (1906).
' 222 U. S. 541 (1912).
Is Id. 222 U. S. at 547, 548.
1734 Stat. 584, c. 3591 (1906).
"Interstate
Commerce Comm. v. Louisville & N. R. Co. 227 U. S. 88, 92 (1913).
5
l See Stem, 58 Harv. L. Rev. 75 (1944), in which the technical accuracy of the court's
conclusion is questioned, but the necessity for such a clasification if there is to be any Judicial
review of fact findings is admitted.
227 U. S. 88, 94 (1913).
2138 Stat. 717, 719, c. 311 (1914), 15 U. S. C. A. § 45 (c).
22Stason, Substantial Evdence in .dministrative Law 89 U. of Pa. L. Rev. 1026, 10391046 (1941). Dean Stason analyzes the Congressional debates leading to the Federal Trade
Commission Act and other statutes establishing regulatory agencies and concludes that Congress
was .;uided by the American rule governing appellate reviews of cases tried by a jury and the
judicial standards applied in th& Interstate Commerce cases.
[441
"evidence," "testimony" or "substantial evidence" as standards for judicial
review of findings of fact of administrative agencies. By23 1941 such language
was in the statutes governing at least nineteen agencies.
The Basis for Definition
It is generally recognized that by utilizing the same judicial standard,
which at common law governed appellate review and directed verdicts, to
define review of agency action, Congress was accepting a well understood
product. The venerable "scintilla" rule had been abandoned as a basis for
refusing to direct a verdict. 24 The tests seemed to be that the courts would
substitute judgment when an agency reached a decision which could not ba
reached by reasonable men acting on the evidence. 25 Likewise courts would
direct a verdict in a jury trial of a civil action or an appellate court would
reverse if the evidence was such that a reasonable man acting on the evidence,
could not reach a decision in favor of the party charged. The Supreme
Court has confirmed this meaning of substantial evidence for both jury actions
and agency review. In N.L.R.B. v. Columbian Enameling and Stamping Co.
the court said, "Substantial evidence is more than a scintilla and must do
more than create a suspicion of the existence of the fact to be established..,
it must be enough to justify, if the trial were to a jury, a refusal to direct
a verdict when the conclusion sought to be drawn from it is one of fact
for the jury." 26
In a case decided shortly before the Columbian case, the court used similar
language: "Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." 27
This test for substantial evidence is not the only one possible, or, in
fact, the rule always applied by the courts has been long apparent. Dean
Stason points out a number of possibilities, ranging from the "scintilla" rule
to that of the court actually weighing the evidence. Each suggested approach
is supported by court opinion.28 Professor Davis in his treatise on Administrative law concludes that this type of analysis is largely an exercise in
semantics, i.e., an analysis of the words used in writing opinions and not of
the extent in which reviewing courts inquired into the facts.2 The latter
treatment while essentially pragmatic seems to have been weakened by recent
opinions of the Supreme Court which will be discussed infra30
The test of reasonableness as applied in jury trials by Federal Courts may
be better understood from a case in which the Supreme Court upheld a directed verdict. In Galloway v. United States 3 1 the plaintiff initiated action
Id, at 1027, 1028.
24 Improvement Co. v. Munson, 14 Wall. 442, 448 (U. S. 1871).
"San Diego Land Co. v. Jasper, 189 U. S. 439, 442 (1903). Wherein Justice Holmes
said in refusing to reverse the findings of a state agency: "It is enough if we cannot say that
it was impossible for a fair minded board to come to the result which was reached."
"306 U. S. 292, 300 (1939).
2- Consolidated Edison Co. v. N.L.R.B.,
305 U. S. 197, 229 (1938); cf. Galloway v. United
States, 319 U. S. 372, 395 (1943). (in effect the substantial evidence requirement is applied
to up hold a directed verdict rendered in a jury trial below).
"Stason. op. cit. supra note 22, at 1035-1039.
"9Davis, op. cit. supra note 11, at 915.
30Universal Camera Corp. v. N.L.R.B., 340 U. S. 474 (1951); N.L.PLB. v. Pittsburgh
Steamship Co., 340 U. S. 498 (1951).
319 U. S. 372 (1943).
for benefits for total and permanent disability under a policy of war risk
insurance which had lapsed. He proceeded on the theory that his mental
condition was such prior to leaving service that he was totally and permanently disabled and had continued to be the same until 1936, when the action
was commenced. The plaintiff presented considerable evidence as to his
condition but did not cover any part of his life during the period 1922-1930,
which had been apparently uneventful. Since the burden was on plaintiff
to show continuous total disability, the majority upheld a directed verdict
for the defendant, concluding that it was not possible to draw a favorable
inference from the lack of evidence as to plaintiff's condition during the
eight-year testimonial gap. This seems to be an application of the substantial
evidence rule, i.e., reasonable men could not conclude that the plaintiff had
been totally and permanently disabled during the eight-year period for which
the court expressly declined to give credhe offered no evidence. However,
32
ence to this or any formula.
Bearing in mind this meaning of "substantial evidence" we are ready to
examine further developments in judicial review of agency decisions. Prior
to departing from the realm of definition, however, mention should be made
of the "clearly erroneous" rule for judicial review. Although there is little
doubt that substantial evidence is a test intended to restrict the scope of
review to a greater extent than the "dearly erroneous" rule which is followed
in reviewing decisions of a judge who sits without a jury,3 3 it may not be
amiss to bring out the distinction. While the differentiation is somewhat
metaphysical it can be contended that in examining a factual situation there
is sufficient evidence for a reasonable man to reach a certain conclusion,
yet that in the eyes of the reviewing authority this same conclusion is clearly
erroneous. This distinction is made by the Supreme Court in District of
Columbia v. Pace 34 and has been brought out by many writers.3r
The Results of Judicial Application
Four factors, overlapping, intertwined, and ever increasing in weight, have
considerably enlarged the importance and scope of the substantial evidence
rule.
First, the rapid growth and attainment of maturity of the administrative
agencies and the acceptance of their expertness in the matters assigned by
Congress has increasingly caused the courts to refrain from substituting
judgment.3 6 Such a reaction is exemplified in a 1938 decision, in which the
United States Court of Appeals, Second Circuit, affirming an order of the
S.E.C., said "One of the principal reasons for the creation of such a bureau is
to secure the benefit of special knowledge acquired through continuous
experience in a difficult and complicated field." 37
Second, has been the modification and lack of emphasis of the once popular
mId. 319 U. S. at 395.
3Federal Rules of Civil Procedure, Rule 52 (a) states: "In all actions tried upon the
facts without a jury . . . Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge of the creditability of
the witnesses."
320 U. S. 698, 701, 702 (1944).
Stern not only sheds some historical light
"Stem, 58 Harv. L. Rev. 70, 79-89 (1944);0r.
but also shows that Congress is acquainted with the different implications of the two terms
when used in a context of judicial review.
cf. Gray v. Powell, 314
seN.L.R.B. v. Hearst Publications Inc., 322 U. S. 111 (1944).
U. S. 402 (1941).
S. E. C. v. Associated Gas and Elec. Co., et al. 99 F. 2d. 795, 798 (2d Cir. 1938).
L46]
view that judicial review was not a single basic concept, but actually had to
be considered in the setting of each agency's operations. 38
This unilateral
or vertical approach was most evident in decisions and comments of the
1920's and early 1930's.3 9
Third, has been the gradual disavowal of the judicial exceptions to the
substantial evidence doctrine contained in such phrases as "jurisdictional
fact", 40 "constitutional fact", 41 and the continued judicial extension of thel
content of questions to be considered issues of fact for the purpose of limit42
ing judicial review.
Fourth, was the consistent use in statutes of the term "substantial evidence", culminating
in its inclusion in Section 10 of the Administrative
43
Procedure Act.
Whether these factors are merely various manifestations of an underlying
policy approach of the courts, as contended by Davis, is beyond the scope of
this inquiry.44 Nor is it necessary to examine the explanation of Stern 45
that the court, willing to be bound by an agency's particularized judgments
as to the application of law to fact, defines the question as one of law in
judicial review only when the issue involves legislative intent. Equally there
is no need to question the opposing view that there is a useful and necessary
distinction between questions of law and questions of fact. 46
Of the above enumerated factors, the tendencies of the courts to delegate
mixed questions of fact and law to the determination of the agency and to
categorize as a question of fact an issue previously considered a question
of law have confronted the legal scholar, bent on classification, with a most
complex riddle. Stern's explanation
47
seemed to provide a reasonable theory,
consistent with case law and Congressional intent prior to the Administrative
Procedure Act. For the purposes of this paper, however, it is necessary
only to indicate that decisions have, in effect, applied the substantial evidence
test to not only evidentiary facts, and inferences from such facts, but to the
so-called mixed questions as well as the specific and general questions pre-
viously considered issues of law. For example in 1920, the Supreme Court,
in F. T. C. v. Gratz,48 held that the application of the statutory phrase "unfair methods of competition" to a particular set of facts was a question of
law.
Two cases raising the same issue in 1934, found the court, while not
8 Frankfurter, The Task of Administrative Law, 75 U. Pa. Rev. 614, 619 (1927); justice
Frankfurter expresses this view as follows: " 'Judicial review' is not a conception of well defined
scope, operative wherever the courts review the action of administrative bodies . . . Therefore
a subject like 'judicial review' in any scientific development of administrative law, must be
studied
not onlyreview'
horizontally,
vertically,
orders, 'judicial
of pos talbut
fraud
orders...e.g. 'judicial review' of Federal Trade 6ommission
or See McFarland. Judicial Control of the Federal Trade Commission
and the Interstate Commerce Commission 1920-1930 Cambridge: Harvard Univ. Press, 1933. Albertsworth, 35 Harv.
L. Rev. 127, 136 et seq. (1921).
40 Crowell v. Benson, 285 U. S. 22 (1932).
41Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 (1920).
4'Compare F. T. C. v. Gratz, 253 U. S. 421 (1920); F. T. C. v. Kleasner, 280 U. S. 19
(1929); F. T. C. v. Raymond Bros. Clark Co., 263 U. S. 565 (1924); with F. T. C. v. Algoma
Lumber Co. 291 U. S. 67 (1934); F. T. C. v. R. F. Keppel, 291 U. S. 304 (1934); cf. O'Leary
v. Brown-Pacific-Mason, 340 U. S. 504 (1951); Dovson v. Commr., 320 U. S. 489 (1943).
44 60 Stat. 244.
"Davis,
op. cit. supra. note 11, 874.
4
Stern, 58 Harv. L. Rev. 70, 99-109 (1944).
"Dickinson, Judicial Review of Administrative Determinations, A Summary and Evaluation, 25 Minn. L. Rev. 588 (1941); Jaffe, Judicial Review: "Substantial Evidence on the Whole
Record," 64 Harv. L. Rev. 1233 (1951).
07 59 Harv. L. Rev. 70, 99-109 (1944).
253 U. S. 421 (1920).
49
expressly overruling the Gratz decision, using such phrases as: "The finding of unfair competition being supported by the testimony, the Commission
did not abuse its discretion . . ."; 'o and again with regard to a finding of
unfair competition by the F. T. C., "If the point were more doubtful than
we think it, we should hesitate to reject the conclusion of the Commission,
based as it is upon clear, specific and comprehensive findings supported by
evidence." 51 Similarly in reviewing numerous N.L.R.B. decisions, the courb
has merely examined the case to see if the agency acted within the framework of the statute, treating the action of the board in laying down a general
principle or selecting a remedy in the same manner as a question of fact
to be tested under the rule of "substantial evidence." 52 The court in such
instances, appears to reserve for itself, as questions of law, only the determination of whether there was evidence to support the finding and whether
the agency had followed the intent of Congress. O'Leary v. Browit-PacificMaxon, Inc., et al. 53 saw the court uphold a deputy commissioner who had
made a compensation award under the Longshoremen's and Harbor Workers'
Compensation Act. The issue was whether the employee's death arose out
of and in the scope of employment. Reversing the Court of Appeals, the
Supreme Court treated the issue as one of fact, i.e., a matter to be determined
by the deputy commissioner. In Dobson v. Commissioner of Internal Revenuse,54 the court left a complex tax rulnig to the determination of the Tax
Court, holding that it was an accounting problem, one of fact, and inasmuch
as the Tax Court's findings were supported by substantial evidence, one not
to be disturbed. 55
In cases where the issue was the application of a general statutory principle
to a set of facts, the typical "mixed" questions, the court has also often
left undisturbed the administrative decision where it found a "rational
basis" 66 for conclusions, a finding with "a basis in substantial evidence," 7
"warrant in the record" 58 or ". . . an application of the statute in a just and
reasoned manner." 59 While such holdings actually avoid the labels of fact
or law, the treatment of administrative judgments in this manner seems to be
an application of the "subtantial evidence" criterion to both mixed questions
and those previously considered questions of law.
The Administrative Procedure Act 60
Beginning in the middle Thirties, various public and private bodies turned
their attention to the problems of administrative law which had heretofore
9Ibid.
'OF. T. C. v. Algoma Lumber Co., 291 U. S. 67, 81 (1934).
r'F. T. C. v. R. F. Keppel Bros. Inc.,, 291 U. S. 304, 314 (1934).
e See N.L.R.B. v. Southern Bell Telephone Co., 319 U. S. 50 (1943); International Ass'n
of Machinists v. N.L.R.B. 311 U. S. 72 (1940).
re340 U. S. 504 (1951).
-'320 U. S. 480, 564 (1943).
inThe court said: "What in the circumstances of this case .. , was thus purely an accounting problem and therefore a question of fact for the Tax Court to determine." This case is more
often cited for the proposition that when the court is unable to separate elements of law from
the factual issues, it will treat the whole matter under the "substantial evidence" rule, but the
court actually classified the issue as one of fact. While Congress subsequently modified the
statute, I.RLC. sec. 1141 (a) (1951), to increase the scope of judicial review in Tax Court
cases, thus overruling Dobson v. Comm'r, the effect of the case is unchanged as to the scope
to be given the "substantial evidence" rule when it appears in a statute.
'7 Missouri Valley Barge Line Co. v. United States, 292 U. S. 282, 286 (1934).
6 Shields v. Utah Idaho Central Ry. Co., 305 U. S. 177, 185 (1938).
r Rochester Tel. Corp. v. United States, 307 U. S. 125, 146 (1939).
reGray v. Powell, 314 U. S. 402, 411 (1941).
060 Stat. 237 c. 324 (1946), 5 U. S. C. § 1001 el.seq.
[48]
been the province of a relatively small group composed of certain federal
officials, private practioners engaged in various substantive specialties before
agency tribunals, and a number of legal scholars. 61 The emphasis gradually
turned from a demand for the separation of functions through a separate
"Administrative Court" 62 to recommendations
for procedural reform and
63
standardized practice in administrative law.
The scope of judicial review to be applied to agency determinations was
usually considered in these deliberations. On the whole, it can be said that
there was general agreement as to the continued usefulness of the "substantial evidence" rule but many statement of dissatisfaction with its application.
The wheels for the eventual passage of the Administrative Procedure Act
were actually set in motion when the President, in 1939, authorized the
Attorney General to appoint a commission to make a thorough survey of
existing agency practices and procedure and to recommend improvements.
The report of this commitee in 1941 64 provided Congress with the necessary information to prepare legislation. Hearings were conducted before congressional committees. Various members of the Attorney General's committee appeared and offered explanations and additions to the report.65 Only
the fact of a world war delayed final formulation of legislation until 1946.
The committee in its report split on the issue of judicial review, the majority making no recommendation for change, 66 a minority advocating a
broader judicial review on questions of fact. The minority stated: "The
present scope of judicial review is subject to question in view of one of
the prevalent interpretations of the 'substantial evidence' rule set forth as
a measure of judicial review in many important statutes . . . Under this
interpretation the Courts need to read only one side of the case and, if
they find any evidence there, the administrative action is to be sustained
and the record, to the contrary ignored . . . 67
The minority were actually of the opinion that the Courts were, in some
cases, adopting a modified scintilla rule in the review of some Labor Board
adjudications." As a result the Minority Draft Bill Sec. 311(e) included
a provision that agency decisions should be set aside "where findings, inferences, or conclusions of fact were unsupported upon the whole record by
substantial evidence." 69 (Italics supplied).70
While this language, with little modification, was incorporated into the
41For
Report
of
a better understanding of the forces at work see 59-64 A. B. A. Rep. (1934-1939);
President's
Committee on Administrative Management
(1937);
Logan-Walter
Bill,
H.R. 6342 (1940): Landis, Crucial Issues in Administrative Law, 53 Harv. L. Rev. 1077
(1940) (an analysis of the Logan-Walter Bill); Veto of the Logan-Walter Bill, H.R. 986, 76th
Cong., 3d Sess., (1940); Benjamin, Administrative Adjudication in the State of New York (1942);
Jffe. Administrative Procedure Reexamined: The Benjamin Report, 56 Harv. L. Rev. 704 (1943);
Legislative History Administrative Procedure Act 187-191, S. 248, 79th Congress 2d Session
(1946).
w 61 A. B. A. Rep. 233 (1936).
Rep. Atty. Gen. Comm. Ad. Proc. S. 8, 77th Cong. tst Sess. (1941).
Ibid.
"Administrative Procedure" Hearings Before a Subcommittee of the Senate Judiciary
Committee on S. 674, 77th Cong., 1st Sas. (1941).
S. 675 and S. 918, 77th Cong., 1st Sess. (1941).
61Rep. Atty. Gen. Comm. Ad. Proc., 210 (1941); the minority consisted of Carl McFarland,
Arthur T. Vanderbilt and E. Blythe Stason.
Hearings, supra note 65 at 1355-1356; also see Stason, supra note 22 at 1049-1050.
Rep. Atty. Gen. Comm. Ad. Proc., 246 (1941).
' For complete analysis of the Reort of the Attorney General's Committee, see Dickinson,
The Acheson Report: A Novel Approach to Administrative Law, 90 U. Pa. L. Rev. 757 (1942);
laffe, The Report of the Attorney General's Committee on Administrative Procedure, 8 U. Chi.
401 (1941).
Administrative Procedure Act, 7 ' the legislative history and the views of
commentators left unsettled the effect of the Act on the scope of judicial
'review and the meaning of "substantial evidence". 72 It remained for future
court decisions to construe Congressional intent.
In addition to the proviso on "substantial evidence," Sec. 10 (e) contains
the following language: "So far as necessary to decision and where presented
the reviewing court shall decide all relevant questions of law . . ." 73
Mr. Dickinson believes this language is a flat mandate to the courts to
retreat from the restricted review 74 exemplified in Gray v. Powell. 5 Dobson.
v. Commissioner,78 and N.L.R.B. v. Hearst.7 7 Other writers were not as
certain and this question was also left for judicial determination.
8
Taft Hartley Act 7
The legislative history of the Taft-Hartley Act makes clear that Congress
was very much aware of the dissatisfaction expressed by many of the judges
as to the restricted review of N.L.R.B. decisions imposed on them by the
Supreme Court. 79 There were also vociferous protestations of other parties
against the credence given the expertness of the board to the point that questions of law were withdrawn from court review. The legislative language as
to the "substantial evidence" rule finally accepted 80 was similar to that in
the Administrative Procedure Act, but the intent of Congress without question was to expand judicial review of board orders.81
(To Be Continued)
1 The court will "...
set aside agency action, . . . unsupported by substantial evidence
.s. . In making the foregoing determinations the court shall review the whole record . . .", 60
Stat. 243, 244, 5 U. S. C. § 1009 (e).
72The legislative history contains a number of conflicting statements as to the intent of
Congress to enlarge the scope of review, e.g., "a restatement of the scope of review as
set forth in subsection (e), is obviously necessary lest the proposed statute be taken as limiting
or unduly expanding judicial review." S. 248, 79th Cong. 2d Sess. 39 (1946); "The term
'substantial evidence' as used in this bill means evidence, which on the whole record as reviewed
by the court . . . is material to the issues, clearly substantial, and plainly sufficient to support
a finding or conclusion . . . the function of the courts is not merely to search the record to see
whether it
is barren
of any evidence . . . or support the agency by a scintilla . . .", Id
at 370; The Attorney General said in respect to Sec. 10 (e). "This declares the existing law
concerning the scope of judicial review." Id at 414. The Associate Chief of Field Legal
Operations, N.L.R.B. wrote. "As to the scope of judicial review, it seems to us clear that the
substantial evidence' rule still applies." Findling, N.L.R.B. Procedures: Effects of the Administrative Procedure Act, 33 A. B. A. J. 14, 83 (1947). Dickinson concluded that the act had
broadened the scope of judicial review both as to law and fact, saying in regard to "substantial
evidence"; ". . . the purpose and intention of the third sentence of Paragraph (e) of the
Administrative Procedure Act is to eliminate from judicial review of fact determinations not
merely the scintilla rule but also that interpretation of the substantial evidence formula which
would permit the reviewing court to examine only one side of the evidence." Dickinson A. P. A.:
Scope and Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 518 (19475.
760 Stat. 243, c. 324 (1946) 5 U. S. C. § 1009 (e).
St33 A. B. A. J. 434, 516 (1947); Id. at 517, note 37, Dickinson discusses the views of
Stern as expressed in 58 Harv. L. Rev. 70, which sf correct, he feels represents a court trend
intended to be overcome by the Administrative Procedure Act. See also Jaffe, Judicial Review.
"Substantial Evidence on the Whole Record." 64 Harv. L. Rev. 1233, 1260 (1951), wherein
he states: "It is thought to be open for decision whether the so-called doctrine of Gray v. Powel
has been repealed by the Administrative Procedure Act."
75314 U. S. 402 (1941).
r0320 U. S. 489 (1943).
-'322 U. S. 111 (1944).
61 Stat.136, (1947) 29 U. S. C. 1S, (1946 ed. Supp. V)
H. R. Rep. No. 610, S. Rep. No. 105 80th Cong. 1st Se,
(1947).
Congres cited
Wilson & Co. v. N.L.R.B., 126 F. 2d 114 (7ti Cir. 1942); N.L.R.B. v. Union Pacific Stages.
99 F. 2d 153 (9th Cir. 1938); N.L.R.B. v. Standard Oil Co. 133 F. 2d 885 (2d Cir. 1943) as
examples of this discontent. The Congress also spoke unfavorably o the tendency of the
courts not to disturb board findings although based on questions of mixed law and fact, or
inferences based on facts which are not in the record, citing N.L.R.B. v. Hearst Publications,
322 U. S. 111 (1944); Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793 (1945);
N.L.R.B. v. Le Tourneau Co., 324 U. S. 793 (1945) (325 U. S. 894, rehearing denied) (1945).
so Supra page 2.
81See H. R.. Rep. No. 610, S. Rep. No. 105, 80th Cong. lst Ses. (1947).
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