Judge Hand initially favored the appellate court’s completely disregarding a finding by a trial examiner adverse to the agency’s decision, on the ground that there seemed to be no analytically intelligible middle ground between doing so and giving it the deference owed a master’s report, but the Supreme Court adopted the middle ground.
How later courts described this case
- Judge Hand initially favored the appellate court’s completely disregarding a finding by a trial examiner adverse to the agency’s decision, on the ground that there seemed to be no analytically intelligible middle ground between doing so and giving it the deference owed a master’s report, but the Supreme Court adopted the middle ground.
- “[T]hat part of the evidence which the printed words do not preserve . . . . is the most telling part, for on the issue of veracity the bearing and delivery of a wit- ness will usually be the dominating factors. . . .”
- “[TJhat part of the evidence which the printed words do not preserve .... is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors.... ”
- “[A]s to matters of common knowledge we are to use a somewhat stiffer standard.”
Written by the judges who cited it.
The opinion
FRANK, Circuit Judge
(concurring).
Recognizing, as only a singularly stupid man would not, Judge HAND’S superior wisdom, intelligence and learning, I seldom disagree with him, and then with serious misgivings. In this instance, I have overcome my misgivings because I think that his modesty has moved him to interpret too sweepingly the Supreme Court’s criticism of our earlier opinion written by him. I read the Supreme Court’s opinion as saying that we had obeyed the new statute with but one exception: We had wholly disregarded the examiner’s finding which the Board rejected.
The Supreme Court [ 340 U.S. 474 , 71 S.Ct. 466 ] said of our earlier opinion that “it is clear” that this court “in fact did con *432 sider the ‘record as a whole,’ and did not deem itself merely the judicial echo of the Board.” In interpreting the new statute, the Court relied upon and quoted Senator Taft's statement, “It does not go quite so far as the power given to a circuit court of appeals to review a district-court decision”. And the Court, after saying that the new statute was not intended to “negative the function of the Labor Board” with reference to “findings within * * * a specialized field of knowledge,” significantly added the following: “Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two * * * conflicting views, even though the court would justifiably have made a different choice had the matter been before it”.
I think, then, that we must thus conclude: (1) Except that we did not, consider the examiner’s findings which differed from the Board’s, we had not in this case disobeyed the new statute; (2) that statute does not put us, vis a vis the Board, in the same position we occupy with respect to a trial court; (3) even as to matters not within the area of the Board’s so-called “expertise,” we may not try Board cases de novo.
Concerning our error in disregarding the examiner’s findings, Judge HAND, as I understand him, interprets as follows the Supreme Court’s ruling: The Board may never reject an examiner’s finding if it rests on his evaluation of the credibility of oral testimony unless (1) that rejection results from the Board’s rational use of the Board’s specialized knowledge or (2) the examiner has been absurdly naive in believing a witness. 1 This, I think, is somewhat more restrictive of the Board’s powers than the Supreme Court suggested, for it said: “The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner’s findings only when they are ‘clearly erroneous.’ ”
I would also, by way of caution, add this qualification (to which, judging from his opinions elsewhere, I gather Judge HAND will not demur) : An examiner’s finding binds the Board only to the extent that it is a “testimonial inference,” or “primary inference,” i. e., an inference that a fact to which a witness orally testified is an actual fact because that witness so testified and because observation of the witness induces a belief in that testimony. 2 The Board, however, is not bound by the examiner’s “secondary inferences,” or “derivative inferences,” i. e., facts to which no witness orally testified but which the examiner inferred from facts orally testified by witnesses whom the examiner believed. 3 The Board may reach its own “secondary inferences,” and we must abide by them unless they are irrational; in that way, the Board differs from a trial judge (in a jury-less case) who hears and sees the witnesses, for, although we are usually bound by his “testimonial inferences,” we need not accept his “secondary inferences” even if rational, but, where other rational “secondary inferences” are possible, we may substitute our own. 4 Since that is true, it is also true that we must not interfere when the Board adopts either (1) its examiner’s “testimonial inferences” and they are not absurd, or (2) his rational “secondary inferences.” Except as noted above, I concur.
. Cf. what we did, vis a vis a trial judge’s finding, in Gindorff v. Prince, 2 Cir., 189 F.2d 897 .
. See Wabash Corp. v. Ross Electric Corp., 2 Cir., 187 F.2d 577, 601-603 , dissenting opinion, for a more elaborate explanation of “testimonial inferences.”
. See again Wabash Corp. v. Ross Electric Corp., supra, as to “derivative inferences.” As there are often chains of inferences, “derivative inferences” is perhaps the preferable label.
. See Judge Learned Hand’s opinion in E. F. Drew & Co. v. Reinhard, 2 Cir., 170 F.2d 679, 684 .