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Show 824 91 SUPREME COURT REPORTER 401 U.S. 416 sider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA 6 1961); In re Josephson, 218 F.2d 174, 182 (CA 1 1954) ; Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (ND Cal. 1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F.2d 715, 719 (CA 2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Ii17 tT h e f i n a l inquiry is whether the Secretary's action followed the necessary procedural requirements. Here the only procedural error alleged is the failure of the Secretary to make formal findings and state his reason for allowing the highway to be built through the park. [11] Undoubtedly, review of the Secretary's action is hampered by his failure to make such findings, but the absence of formal findings does not necessarily require that the case be remanded to the Secretary. Neither the Department of Transportation Act nor the Federal- Aid Highway Act requires such formal findings. Moreover, the Administrative Procedure Act requirements that there be formal findings in certain rulemaking and adjudicatory proceedings do not apply to the Secretary's action here. See 5 U.S.C. §§ 553(a) (2), 554(a) (1964 ed., Supp. V). And, although formal findings may be required in some cases in the absence of statutory directives when the nature of the agency action is ambiguous, those situations are rare. See City of Yonkers v. United States, 320 U.S. 685, 64 S.Ct. 327, 88 L. Ed. 400 (1944); American Trucking 31. The regulation was promulgated pursuant to Executive Order 11514, dated March 5, 1970, 35 Fed.Reg. 4247, which instructed all federal agencies to initiate procedures needed to direct their poli- Ass'ns v. United States, 344 U.S. 298, 320 73 S.Ct. 307, 319-320, 97 L.Ed. 337 (1953). Plainly, there is no ambiguity here; the Secretary has approved the construction of 1-40 through Overton Park and has approved a specific design for the project. Petitioners contend that although there may not be a statutory requirement that the Secretary make formal findings and even though this may not be a case for the reviewing court to impose a requirement that findings be made, Department of Transportation regulations require them. This argument is based on DOT Order 5610.1,3* which requires the Secretary to make formal {findings when he approves the j.. use of parkland for highway construction but which was issued after the route for 1-40 was approved.32 Petitioners argue that even though the order was not in effect at the" time approval was given to the Overton Park project and even though the order was not intended to have retrospective effect the order represents the law at the time of this Court's decision and under Thorpe v. Housing Authority, 393 U.S. 268, 281-282, 89 S. Ct. 518, 525-526, 21 L.Ed.2d 474 (1969), should be applied to this case. The Thorpe litigation resulted from an attempt to evict a tenant from a federally funded housing project under circumstances that suggested that the eviction was prompted by the tenant's objections to the management of the project. Despite repeated requests, the Housing Authority would not give an explanation for its action. The tenant claimed that the eviction interfered with her exercise of First Amendment rights and that the failure to state the reasons for the eviction and to afford her a hearing denied her due process. After denial of relief in the state courts, this Court granted certiorari "to consider whether [the tenant] was denied due process by the cics and programs toward meeting national environmental goals. 32. DOT Order 5010.1 was issued on October 7, 1970. |
