holding that, “in view of the whole record,” agency decision was not supported by substantial evidence
How later courts described this case
- holding that, “in view of the whole record,” agency decision was not supported by substantial evidence
- urging that “the pertinent methodology [for reviewing for substantial evidence] is that enunciated by the United States Supreme Court in Universal Camera”
Written by the judges who cited it.
The opinion
WARREN, J.,
specially concurring.
I concur in the result of this case but write separately to emphasize my adherence to what we have said repeatedly in the past: We are not empowered by the APA review statutes to reweigh the evidence in reviewing an agency’s findings of fact. I specifically disagree with any implication in Judge Gillette’s concurring opinion that evidence on which a factfinder could reasonably base a finding can somehow be rendered “insubstantial” if, in the opinion of the reviewing court, the countervailing evidence in the record is more voluminous or convincing. Insofar as that implication is supported by the language of Judge Gillette’s quotations from Universal Camera Corp. v. National Labor Rel. Bd., 340 US 474 , 71 S Ct 426 , 95 L Ed 456 (1951), Universal Camera cannot be imported into the Oregon statutory scheme for judicial review of administrative orders.
Contrary to what Judge Gillette says, it is my understanding that Van Gordon v. Ore. State Bd. of Dental Examiners, 63 Or App 561 , 666 P2d 276 (1983), Cook v. Employment Division, 47 Or App 437 , 614 P2d 1193 (1980), and Von Weidlein/NW Bottling v. OLCC, 16 Or App 81 , 514 P2d 560 , 515 P2d 936 , 517 P2d 295 (1973), rev den (1974), do hold that “substantial evidence” means “any evidence” which may *105 reasonably support an order. See also Engman v. AFSD, 67 Or App 302 , 677 P2d 719 (1984).
Even if we were empowered to do so, it is unnecessary to employ the federal standard in this case. The order should be reversed, because it is not supported by “substantial evidence” in the sense that this court historically has applied the test.
The majority opinion states that the MRT report is the only evidence in the record which supports the order and that the MRT “apparently reviewed only the psychiatric evaluation performed by Eason.” 75 Or App at 101. Thus, the evidence supporting the order must be found in Eason’s report. If that evidence is not such that a reasonable mind would employ to support a conclusion of employability, it is in effect, no evidence of that fact. Eason’s report states that claimant is suffering from significant mental and physical disorders and concludes that he should be certified as unemployable. There appears to be nothing in Eason’s report which would support a finding of claimant’s employability. MRT’s conclusion that claimant can work, therefore, lacks a factual foundation. AFSD’s order is not supported by substantial evidence, because it is not supported by any evidence. It must be reversed.
My opinion that this court should not adopt the federal substantial evidence test is not based on a perception that the “any evidence” test is better, but that, as a matter of policy, a change in the standard of review should be made by the legislature. 1 In Universal Camera Corp. v. National Labor Rel. Bd., supra, the statutory language which the court construed specifically referred to “substantial evidence on the record considered as a whole.” 340 US at 485 . This court has consistently applied the “any evidence” test, and this case does not present a need to depart therefrom.
Rossman, J. joins in this specially concurring opinion.
As the concurring opinion of Gillette, J. notes, the 1985 legislature enacted a law that would amend ORS 183.482(8)(c) and 183.484(4)(c) to adopt the language of the federal substantial evidence test.