finding agency’s disregarding of probative hearsay evidence to be arbitrary and capricious
How later courts described this case
- finding agency’s disregarding of probative hearsay evidence to be arbitrary and capricious
- “The importance of testimonial evidence and witness credibility to the factual findings in the instant litigation endow the ALJ’s vision with particular acuity.”
Written by the judges who cited it.
The opinion
MIKVA, Circuit Judge,
dissenting:
Judge Wilkey’s analysis of the economics of wastepaper shipment across the Pacific is quite plausible, and if we were sitting as Federal Maritime Commissioners I might well concur. But as a judge applying the substantial evidence test to a decision of a presumptively expert agency, I believe the record requires us to uphold the Commission’s determination. The disagreement between the Commission and its Administrative Law Judge does not entitle us to substitute our own views on cross-elasticity and market trends.
The evidence is not so unequivocal as the majority claims. For example, the alleged unreasonableness of wastepaper rates was to be shown by comparison with woodpulp rates, and petitioners offered evidence that their customers would “shift to woodpulp unless [the Pacific Westbound Conference] reduced its freight rates for wastepaper.” Majority opinion at 825 n.46. Yet the record demonstrates that the great success of woodchips was not shared by woodpulp, and that Conference members experienced a decline in woodpulp exports. Id. at 819 n.9. This evidence would support some skepticism about the theory that the boom in woodchips must inevitably extend to wastepaper if the rates were lowered.
I am also somewhat perplexed by the majority’s reliance on NARI v. ICC, 585 F.2d 522 (D.C.Cir.1978), cert. denied, 440 U.S. 929 , 99 S.Ct. 1266 , 59 L.Ed.2d 485 (1979), as support for a congressional mandate to the Federal Maritime Commission to encourage recycling. That decision was based on section 204 of the Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. No. 94-210, 90 Stat. 40 (1976) (codified at 45 U.S.C. § 793 note (1976)), *82 which is directed specifically at the Interstate Commerce Commission. See NARI v. ICC, 627 F.2d 1328 , 1331-1332, 1338-1339 (D.C.Cir.1980) (argued the same day as the case at bar). Though the legislative history may demonstrate some initial interest in applying a similar rule to the Federal Maritime Commission, that interest was not expressed in the statute as enacted, and even a provision requiring the Federal Maritime Commission to participate in a research program was dropped in conference. See S.Rep.No.595, 94th Cong., 2d Sess. 150-51 (1976). Surely this limits the force of Interstate Commerce Commission precedents.
In short, while the Federal Maritime Commission may have been mistaken, I believe that it committed no error of law, and that substantial evidence in the record as a whole supports its findings. I respectfully dissent.