282
Souter, J., dissenting
I
So far as relevant, § 7(c) of the APA states that
"[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence." 5 U. S. C. § 556(d).
The majority's holding that "burden of proof" in the first sentence of this provision means "burden of persuasion" surely carries the force of the preferred meaning of the term in today's general usage, as the Court's opinion demonstrates. But we are concerned here not with the commonly preferred meaning of the term today, but with its meaning as understood and intended by Congress in enacting § 7(c) of the APA in 1946. That is not a matter about which preference has been constant, or Congress silent, or even a subject of first impression for this Court.
The phrase "burden of proof" has been used in two ways, to mean either the burden of persuasion (the risk of nonpersuasion), see 9 J. Wigmore, Evidence § 2486 (J. Chadbourn rev. 1981) (hereinafter Wigmore), or the burden of production (of going forward with evidence), see id., § 2487. The latter sense arose from the standard common-law rule that in order "to keep the jury within the bounds of reasonable action," the party bearing the burden of production had to put forth enough evidence to make a prima facie case in order to get to the jury. Ibid. At the turn of the century, Thayer noted that burden of proof, in the sense of "going forward with argument or evidence," is "the meaning of the term in common speech . . . [and] also a familiar legal
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