There is no contention that the contract officer acted fraudulently, capriciously or in bad faith and it follows that the Board's factual determination is binding unless it is shown not to be supported by substantial evidence. Lowell O. West Lumber Sales v. United States, 9 Cir., 270 F.2d 12; Wells Wells, Inc. v. United States, 8 Cir., 269 F.2d 412; Mann Chemical Laboratories, Inc. v. United States, D.C., 174 F. Supp. 563; L.W. Foster Sportswear Co. v. United States, D.C., 145 F. Supp. 148; Langoma Lumber Corp. v. United States, D.C., 140 F. Supp. 460, affirmed 3 Cir., 232 F.2d 886. It is appellant's position that the Government, having undertaken to prove that the Board's findings were supported by substantial evidence had the burden of doing so and failed.
Quite aside from this, we think the court properly considered the case on the record as made before the administrative agencies. It is true that the trial court was not an appellate court, but in determining the issues tried before the administrative agencies it was confined to the record made before the agencies and that was the procedure followed in this case. This procedure has been followed by many other District Courts. Frier v. United States, Civ. No. 58 C 9 (3), E.D.Mo., May 15, 1959; Mann Chemical Laboratories, Inc. v. United States, D.C., 174 F. Supp. 563; Langoma Lumber Corp. v. United States, D.C.E.D. Pa., 140 F. Supp. 460, affirmed 3 Cir., 232 F.2d 886; L.W. Foster Sportswear Co. v. United States, D.C.E.D.Pa., 145 F. Supp. 148. In principle, the same rule is applicable in appellate courts.
The defendant counterclaimed and asked for damages based on the difference between the contract price and what the buyer paid another seller to secure the merchandise bargained for after the contract between Langoma and the United States was terminated. The district court denied recovery to the plaintiff, Langoma, and entered judgment on the counterclaim for the United States. Langoma Lumber Corp. v. United States, D.C.E.D.Pa. 1955, 140 F. Supp. 460. The contract between the parties provided for inspection of the lumber tendered in performance thereof by an independent inspector with the National Hardwood Lumber Association who was to grade and tally the lumber in accordance with the rules of the lumber association.
The sole question is whether the Board's decision is supported by substantial evidence. This determination must be made by viewing the administrative appeal record, reading it as a whole, and not by taking further testimony or having a trial de novo. Mann Chemical Laboratories, Inc. v. United States, D.C.D. Mass. 1958, 174 F. Supp. 563. Cf. Langoma Lumber Corp. v. United States, D.C.E.D.Pa. 1955, 140 F. Supp. 460, affirmed per curiam, 3 Cir., 1956, 232 F.2d 886; Wagner Whirler Derrick Corp. v. United States, 1954, 121 F. Supp. 664, 128 Ct.Cl. 382. I have examined the record, and I find that there is substantial evidence to support the Claims and Appeals Board finding that plaintiff did not use either reasonable precautions or exercise sound engineering and construction practices as required by his contract.
It refers to a similar standard of review in the Administrative Procedure Act, 5 U.S.C.A. § 1009, which provides for review on the record; it gives a definition of substantial evidence from Consolidated Edison Company of New York v. N.L.R.B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, a case decided by a review on the record; and it makes clear that the statute is intended to require hearing officers to keep a complete record "of the testimony and evidence upon which they have relied in making their decisions," U.S. Code Cong. Admin.News, supra, p. 2195. I also note that in Langoma Lumber Corp. v. United States, D.C.Pa., 140 F. Supp. 460, affirmed 3 Cir., 232 F.2d 886, the court apparently reached the same conclusion as I have reached here. See also Hadden v. United States, 130 F. Supp. 610, 131 Ct.Cl. 326, and Wagner Whirler Derrick Corporation v. United States, 121 F. Supp. 664, 128 Ct.Cl. 382, both of which were Court of Claims cases and both of which seemingly were trials on the record.
The Government had a duty to mitigate the damages. See, Langoma Lumber Corp. v. United States, D.C.Pa., 140 F. Supp. 460, 462. See also, National Wood Products, Inc., v. United States, Ct. of Claims, 146 F. Supp. 451.
See Atlantic Carriers v. United States, D.C.S.D.N.Y. 1955, 131 F. Supp. 1, rehearing denied 131 F. Supp. 5. In Langoma Lumber Corp. v. United States, D.C.E.D.Pa. 1955, 140 F. Supp. 460, affirmed 3 Cir., 1956, 232 F.2d 886, the plaintiff took an appeal from the decision of the contracting officer, which was not done in this case. In United States v. Blair, supra, 321 U.S. at pages 736-737, 64 S.Ct. at page 823, the court said:
We also think that in addition to the equities the law favors the Nesses. It is clear that liquidated damage clauses have been enforced "when the clause computes the damages liquidated as the actual loss sustained, . . . ." Langoma Lumber Corp. v. U.S., 140 F. Supp. 460, 463 (E.D.Pa. 1955), affirmed 232 F.2d 886 (3rd Cir. 1956). In the case at bar, the down payment of $2620 paid to the Nesses indeed represents a portion of the actual losses incurred by them upon the Cremens' default.
See Wong Wing Foo v. McGrath, 9 Cir., 196 F.2d 120. Naturally, if both parties are satisfied with that record and are willing to have the court decide the issue of finality of the decision of the department head on the basis of that record rather than on a new record made in this court, there would seem to be no objection to such a proceeding. See Langoma Lumber Corp. v. United States, D.C., 140 F. Supp. 460, affirmed 3 Cir., 232 F.2d 886. "Administrative records" and "administrative decisions" usually relate to decisions and record which an agency is by law required to make.