Nickol v. U.S.
| Decision Date | 30 September 1974 |
| Docket Number | No. 74-1011,74-1011 |
| Parties | W. G. NICKOL and Eva Rose Nickol, his wife, Appellants, v. UNITED STATES of America and Rogers C. B. Morton, Secretary of the Interior, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Harry O. Morris, Albuquerque, N.M., for appellants.
Wallace H. Johnson, Carla A. Hills, Asst. Attys. Gen., Victor R. Ortega, U.S. Atty., James B. Grant, Asst. U.S. Atty., Carl Strass, John J. Zimmerman, William Kanter and Thomas G. Wilson, Attys., Dept. of Justice, for appellees.
Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
W. G. Nickol and his wife, Eva Rose Nickol, appeal from the order of the Act of 1946, 5 U.S.C. 701-706, of an adverse determination of the validity United States' motion for summary judgment. The case concerns a review under the Administrative Procedure Act of 1946, 5 U.S.C. 701-706, of an adverse determination of the validity of a mining claim by the Board of Land Appeals, Office of Hearings and Appeals, Department of the Interior, entered on January 23, 1973, as IBLA 72-138 (9 IBLA 117). Appellants have exhausted their administrative remedies; see 43 C.F.R. 1843.7 (1973).
The review in the district court raised the issue of whether the decision and affirmance of the Administrative Law Judge by the Board of Land Appeals was 'supported by substantial evidence'; also as raised by the Nickols, whether it was 'clearly erroneous as a matter of law.'
The district court's order is as follows:
'This matter coming on for consideration upon the defendants' Motion for summary judgment, and the Court concluding that the only issue is whether there is evidence in the record before the Secretary to support his decision on an issue of fact, and the Court concluding that there is such evidence to support his decision;
'Now, Therefore,
'IT IS BY THE COURT ORDERED that Summary Judgment is granted in favor of the defendants and the action is dismissed.'
An issue on appeal is whether this type of 'summary judgment' is appropriate where the district court review of an agency action is limited to an examination of the administrative record to determine if there is substantial evidence to support the agency's determination. 5 U.S.C. 706(2)(E). Such review is, of course, confined to the agency record, or such portion of it which the parties may cite, and additional evidence is not to be admitted. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). One court has characterized a 'judicial determination of whether a finding of fact (in an administrative proceeding) is supported by substantial evidence' as 'only a question of law' and therefore 'subject to disposition by summary judgment.' Dredge Corp. v. Penny, 338 F.2d 456 (9th Cir.). See also Beane v. Richardson, 457 F.2d 758 (9th Cir.); White v. Udall, 404 F.2d 334 (9th Cir.); Henrikson v. Udall, 350 F.2d 949 (9th Cir.); Todaro v. Pederson, 205 F.Supp. 612 (N.D.Ohio 1961), aff'd 305 F.2d 377 (6th Cir.); 6 Moore's Federal Practice P56.17(3), at 2472-73 (1974).
The very purpose, however, of such judicial review of agency action is to examine the facts in the record. Universal Camera Corp. v. NLRB, 340 U.S. 474 at 484. Thus it would seem that the prerequisites for a summary judgment under Fed.R.Civ.P. 56 are absent in a review of the administrative record under the circumstances before us. A judicial determination of whether 'substantial evidence' can be found in the record to support the administrative conclusion necessarily involves a fact finding which in turn determines whether the agency's action must be upheld. The issues in such a judicial review are, by definition and in substance, genuine issues as to material fact, Fed.R.Civ.P. 56(c); the facts are the subject of substantial controversy and, as such, are in the normal course 'actually and in good faith controverted.' Fed.R.Civ.P. 56(d).
Under the statutory method applicable to this case, the district court was called upon to review and examine the record made during the course of the administrative proceedings. This record contains detailed testimony as to a variety of particular facts, conditions, and events. The testimony is of physical facts, economic conditions, and opinion. These are in great part divergent and conflicting. It was necessary in the administrative proceedings to evaluate the testimony to attempt to resolve conflicts, and to make choices as to particular positions. Most of the 'facts,' material and otherwise, as the term is used in Rule 56 of the Federal Rules of Civil Procedure were clearly disputed, placed in issue, and contested. This was the record before the district court.
The district court, under the statutory scheme, was then called upon to examine these facts in the record, evaluate the conflicts, and to then make a determination therefrom whether the facts supported the several elements which made up the ultimate administrative decision that the mining claims were invalid. This procedure by the district court is comparable to many decisions which must be made by appellate courts. Whether the record contains substantial evidence to support the action of the Secretary of the Interior is the ultimate determination to be made by the district court, but the fact it is the final point or ultimate issue does not necessarily mean that it is a legal issue. It looks like one perhaps because it is something that appellate courts usually do, but it is not particularly helpful with our problem to place it in a particular category.
For the district court to reach its conclusion requires this evaluation of testimony, resolution of conflicts, and a general examination of facts which would occur had the matter been 'tried' in that court. The statutory standards and presumptions are different in degree only because the case has already been 'tried' before someone else.
When this record arrives before this court, the matter has been tried, been reviewed administratively, and reviewed by the district court. For us to give it a meaningful review in accordance with the usual standards and practices applied by an appellate court, we must know how the trial court evaluated the conflicting facts and how it reached its determination of the ultimate facts to which the law was applied. We again have to make a determination as to substantial evidence, but to do this and to give the proper consideration to the action of the district court, we must know how it reached its conclusions. We could, of course, go through the record again and make a de novo determination. Thus the case would receive two separate and unrelated reviews. However, this is not in accord with proper appellate review. When the decision is based on conflicting facts, there need be some indication by the trial court as to how it arrived at its conclusions, and what, in its opinion, were the operative facts for which it found the substantial evidence.
We have carefully examined the decisions of the Ninth Circuit which are cited above, and notice that several of the early cases were instances when, according to the reported...
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