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Show 820 91 SUPREME COURT REPORTER 401 U.S. 409 ho9 {minimum, by using advanced drainage techniques19 the expressway could be depressed below ground level along the entire route through the park including the section that crosses the small creek. Respondents argue that it was unnecessary for the Secretary to make formal findings, and that he did, in fact, exercise his own independent judgment which was supported by the facts. In the District Court, respondents introduced affidavits, prepared specifically for this litigation, which indicated that the Secretary had made the decision and that the decision was supportable. These affidavits were contradicted by affidavits introduced by petitioners, who also sought to take the deposition of a former Federal Highway Administrator20 who had participated in the decision to route 1-40 through Overton Park. The District Court and the Court of Appeals found that formal findings by the Secretary were not necessary and refused to order the deposition of the former Federal Highway Administrator because those courts believed that probing of the mental processes of an administrative decisionmaker was prohibited. And, believing that the Secretary's authority was wide and reviewing courts' authority narrow in the approval of highway routes, the lower courts held that the affidavits contained no basis for a determination that the Secretary had exceeded his authority. r the cost of the project, would create safety hazards, and because of increases in air pollution would not reduce harm to the park. 19. Petitioners contend that adequate drainage could be provided by using mechanical pumps or some form of inverted siphon. "* They claim that such devices arc often used in expressway construction. 20. Petitioners wanted to question former Highway Administrator Bridwell. See n. 17, supra. 21. In addition, the Department of Transportation Act makes the Administrative Procedure Act applicable to proceedings of the Department of Transportation. 49 U.S.C. § 1655(h) (1964 ed., Supp. V). [2] We agree that formal findings were not required. But we do not believe that in this case judicial review based solely on litigation affidavits was adequate. |[3] A threshold question-whether u,* petitioners are entitled to any judicial review-is easily answered. Section 701 of the Administrative Procedure Act, 5 U.S.C. § 701 (1964 ed., Supp. V), provides that the action of "each authority of the Government of the United States," which includes the Department of Transportation, 21 is subject to judicial review except where there is a statutory prohibition on review or where "agency action is committed to agency discretion by law." In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no "showing of,'clear and convincing evidence' of a * * * legislative intent" to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed. 2d 681 (1967). Brownell v. We Shung, 352 U.S. 180, 185, 77 S.Ct. 252, 255-256, lL.Ed.2d225 (1956).22 Similarly, the Secretary's decision here does not fall within the exception for action "committed to agency discretion." This is a very narrow exception.23 Ber-ger, Administrative Arbitrariness and Judicial Review, 65 Col.L.Rev. 55 (1965). The legislative history of the Administra- 22. See also Rusk v. Cort. 369 U.S. 367. 379-3S0, 82 S.Ct. 7S7, 794, 7 L.Ed.2d 809 (1962). 23. The scope of this exception has been the subject of extensive commentary. See, c. </., Berger, Administrative Arbitrariness: A Synthesis. 78 Yale L.J. 965 (1969); Saferstein, Xonreviewability: A Functional Analysis of "Committed to Agency Discretion." S2 Harv.L.Rev. 367 (1968) ; Davis, Administrative Arbitrariness is Not Always Reviewable, 51 Minn. L.Rev. 643 (1967) ; Berger, Administrative Arbitrariness: A Sequel, 51 Minn.L. Rev. 601 (1967). |
