
    Carlos HEATHERLY, Appellant, v. IOWA DEPARTMENT OF JOB SERVICE, Appellee, Sully Co-Op Exchange, Intervenor.
    No. 85-1898.
    Supreme Court of Iowa.
    Dec. 17, 1986.
    Rehearing Denied Jan. 20, 1987.
    Mark A. Otto of Brierly, McCall, Girdner, Chalupa, McCall & Otto, Newton, for appellant.
    Walter F. Maley, David M. Keenan, and Blair H. Dewey, Des Moines, for appellee Iowa Department of Job Service.
    James Tyler of Matthias, Tyler, Nuzum, Johnson & Matthias, Newton, for inter-venor Sully Co-Op Exchange.
   PER CURIAM.

An equally divided court of appeals affirmed by operation of law the judicial review decision of the district court upholding the final agency decision in this job service case. The job service appeal board determined from the facts presented in this record that the claimant Carlos Heatherly was disqualified from receiving benefits by reason of his misconduct. See Iowa Code § 96.5(2)(a) (1985); 370 Iowa Admin.Code § 4.32(1). Substantial evidence in the record as a whole supports the agency decision. We affirm.

In several recent judicial review decisions we have emphasized that the district court and our appellate courts are not permitted-to and should not review de novo the record made before the agency. Hussein v. Tama Meat Packing Corporation, 394 N.W.2d 340, 341 (Iowa 1986); Hurtado v. Iowa Department of Job Service, 393 N.W.2d 309, 311 (Iowa 1986); Harlan v. Iowa Department of Job Service, 350 N.W.2d 192, 193 (Iowa 1984); Higgins v. Iowa Department of Job Service, 350 N.W.2d 187, 190 (Iowa 1984). The final agency decision in a “contested case” (Iowa Code § 17A.2) should be affirmed by the district court and our appellate courts when there is no error of law and the decision is supported by substantial evidence in the record as a whole. See Iowa Code § 17A.19(8)(f) (1985).

District courts and appellate courts alike must resist the temptation to become finders of the facts when review is not de novo. In this case the district court was careful not to usurp the fact-finding function of the agency. In its carefully crafted five-page judicial review ruling the district court summarized the facts found by the agency, set forth the correct scope of review and other applicable legal principles, and affirmed. We endorse the district court ruling, including the ultimate determination that the claimant’s “loud and abusive behavior at the auction which constituted misconduct is supported by substantial evidence in the record.”

This case may have been difficult for the initial finder of fact to resolve. On judicial review, however, the evidence in the record as a whole makes plain our duty to affirm.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.  