401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971)
Citizens to Preserve Overton Park, Inc., together with other private citizens and local and national conservation organizations, brought suit against the Secretary of Transportation and related federal and state officials to challenge the Secretary's authorization of federal funds for construction of a six-lane segment of Interstate 40 through Overton Park in Memphis, Tennessee.1
Overton Park is a 342-acre public park located near the center of Memphis that contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path, an art academy, picnic areas, and 170 acres of forest.2 The proposed expressway would sever the zoo from the remainder of the park and destroy 26 acres of parkland.3
The route through the park had been approved by the Bureau of Public Roads in 1956 and by the Federal Highway Administrator in 1966.4 After enactment of section 4(f) of the Department of Transportation Act of 1966, the Secretary announced in April 1968 that he concurred in the local judgment that the highway should cross the park.5 Final approval of both route and design occurred in November 1969 after Congress had reiterated the restrictions in section 138 of the Federal-Aid Highway Act of 1968.6
The state acquired the right-of-way on both sides of the park before 1968 and purchased the 26-acre strip inside the park from the city in September 1969.7 Neither announcement was accompanied by a statement of the Secretary's factual findings or an explanation of why no feasible and prudent alternative routes existed or why the chosen design minimized harm to the park.8
Petitioners contended that feasible and prudent alternatives existed, including routes north or south of the park. They also contended that construction by bored or cut-and-cover tunnel beneath the park was feasible.9 In the District Court for the Western District of Tennessee, respondents introduced affidavits prepared for the litigation asserting that the Secretary had exercised independent judgment.10 Petitioners introduced contrary affidavits and sought to depose a former Federal Highway Administrator who had participated in the routing decision.11 The District Court granted the Secretary's motion for summary judgment, the Court of Appeals for the Sixth Circuit affirmed, and after oral argument the Supreme Court granted a stay halting construction and, treating the stay application as a petition for certiorari, granted review.12
Whether the Secretary of Transportation's approval of federal funding for a highway through public parkland is subject to judicial review under the Administrative Procedure Act?13
Under section 701 of the Administrative Procedure Act, agency action 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.14 The latter is a narrow exception applicable only when statutes are drawn in such broad terms that there is no law to apply.15
Yes. There is no indication that Congress sought to prohibit judicial review of decisions under the Department of Transportation Act or the Federal-Aid Highway Act.16 The Secretary's decision approving the highway through Overton Park does not fall within the committed to agency discretion exception.17 Sections 4(f) and 138 supply clear and specific directives requiring findings of no feasible and prudent alternative and all possible planning to minimize harm.18
These provisions provide law to apply to the facts of the 1968 concurrence and 1969 final approval for the Overton Park route.19
The Secretary's approval of federal funding for the highway through Overton Park is subject to judicial review under the Administrative Procedure Act.20
Whether formal findings by the Secretary are required when approving the use of parkland for highway construction?21
No. The Secretary's April 1968 announcement concurring in the local judgment was not accompanied by formal findings.24 The November 1969 final approval of route and design for the Overton Park segment also lacked such findings.25 No statute mandates them.26 The nature of the action creates no ambiguity requiring their imposition by the reviewing court.27
Formal findings by the Secretary are not required when approving the use of parkland for highway construction.28
Whether the Secretary's decision is committed to agency discretion by law so as to preclude judicial review?29
The exception for action committed to agency discretion is narrow and applies only in rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.30
No. Sections 4(f) and 138 contain plain and explicit bars to the use of federal funds for highways through parks unless there are no feasible and prudent alternatives and all possible planning minimizes harm.31 The Overton Park approval decision is not committed to agency discretion.32 It remains subject to review on the facts of the route selection and design.33
The Secretary's decision is not committed to agency discretion by law so as to preclude judicial review.34
Whether the arbitrary and capricious standard applies to the Secretary's decision under section 706 of the Administrative Procedure Act?35
Section 706 requires a reviewing court to set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.36 The court must engage in a substantial inquiry that includes determining whether the Secretary acted within the scope of authority and whether the choice was based on relevant factors without clear error of judgment.37
Yes. The Secretary's approval of the Overton Park route was not an exercise of a rulemaking function under the APA.38 The only hearing required was the nonadjudicatory public hearing conducted by local officials.39 Therefore neither the substantial evidence standard nor de novo review applies.
The arbitrary and capricious standard governs instead.40 It requires the District Court to examine whether the Secretary properly construed the limited range of choices under sections 4(f) and 138 when approving the six-lane expressway that would destroy 26 acres of the park.41
The arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law standard applies to the Secretary's decision under section 706 of the Administrative Procedure Act.42
Whether review of the Secretary's decision may be based solely on litigation affidavits or must instead examine the full administrative record before the agency?43
No. The District Court and Court of Appeals relied solely on litigation affidavits that were prepared specifically for this case.46 Those affidavits constituted post hoc rationalizations rather than the full administrative record that was before the Secretary at the time of the 1968 and 1969 approvals for the Overton Park segment.47 Plenary review in the District Court must therefore examine the complete administrative record.48
Review of the Secretary's decision may not be based solely on litigation affidavits and must instead examine the full administrative record before the agency.49
Related opinions on this issue
Justice Blackmun joined the Court's opinion and judgment in full.50 He noted that the case arrived after more than a decade of efforts to solve the interstate highway problem at Memphis.51 The administrative decisions under review were not those of a single Secretary.
Some were made by the present Secretary's predecessor and, before him, by the Department of Commerce's Bureau of Public Roads. The 1966 Act and the 1968 Act cut across former methods and imposed new standards and conditions upon a situation that already was largely developed. This timing explains why the record is sketchy and less complete than one would expect if the project had been instituted after passage of the 1966 Act.52
Whether the District Court may require testimony from administrative officials who participated in the decision?53
Although inquiry into the mental processes of administrative decisionmakers is usually to be avoided.54 Where there are no formal findings the District Court may require the officials who participated in the decision to give testimony explaining their action if that is the only way effective judicial review can occur.55
Yes. The Secretary made no formal findings at the time of the Overton Park approvals.56 The District Court may therefore require testimony from the administrative officials who participated in the decision.57 Such testimony would help determine whether the Secretary acted within the scope of authority and whether the action was justifiable under the arbitrary and capricious standard.58
The District Court may require testimony from administrative officials who participated in the decision.59
Related opinions on this issue
Joined by Justice Brennan
Justice Black agreed that the judgment of the Court of Appeals is wrong and should be reversed.60 He dissented from the decision to remand the case to the District Court.61 In his view the whole matter should be sent back to the Secretary of Transportation.62
The Secretary completely failed to comply with the duty imposed by Congress not to permit a federally financed public highway to run through a public park unless there is no feasible and prudent alternative and the program includes all possible planning to minimize harm.63 The congressional command should not be taken lightly.64 It represents a solemn determination that the beauty and health-giving facilities of public parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of the Secretary.65
This record contains not one word to indicate that the Secretary raised even a finger to comply with the command of Congress.66 The case should be remanded to the Secretary for hearings and factfindings in full good-faith obedience to the Act.67