290
Souter, J., dissenting
laws, the Securities and Exchange Commission had no choice but to use the clear-and-convincing standard of proof, rather than the standard of preponderance of the evidence. Stead-man read the third sentence of § 7(c) (a rule or order must be "supported by and in accordance with the reliable, probative, and substantial evidence") to mean that preponderance of the evidence, not the clear-and-convincing standard, applies in adjudications under the APA. Steadman thus holds that the party with the burden of persuasion must satisfy it by a preponderance, but does not purport to define "burden of proof" under the APA or to decide who bears the burden of persuasion, since it was uncontested in that case that the burden of persuasion was on the Government in a securities disciplinary proceeding. Transportation Management, on the other hand, holds that "burden of proof" in § 7(c) means burden of production. The question left open by each decision is who bears the burden of persuasion. As to that, § 7(c) is silent.
It is also worth remarking that Transportation Management came as no surprise when it was decided, other federal courts having anticipated this Court's reading of the § 7(c) burden as one of production. See, e. g., Environmental Defense Fund, Inc. v. EPA, 548 F. 2d, at 1013 (" 'burden of proof' [§ 7(c)] casts upon the 'proponent' is the burden of coming forward with proof, and not the ultimate burden of persuasion"); Old Ben Coal Corp. v. Interior Bd. of Mine Operations Appeals, United States Dept. of Interior, 523 F. 2d 25, 40 (CA7 1975) ("burden of putting forth a prima facie case"); Maine v. United States Dept. of Labor, 669 F. 2d 827, 829 (CA1 1982) (burden "of producing sufficient evidence to make out a prima facie case"); but cf. Kerner v. Flemming, 283 F. 2d 916, 921-922, and n. 8 (CA2 1960) (assuming, arguendo, the term meant burden of persuasion). And at least since Transportation Management, every Court of Appeals (except the one below in this case) to have reached the issue has understood that the question was firmly settled by
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007