The Availability of Judicial Review Regarding Military Base Closures and Realignments

Congressional research reportJun 30, 2005

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Order Code RL32963

CRS Report for Congress

Received through the CRS Web

The Availability of Judicial Review Regarding

Military Base Closures and Realignments

Updated June 30, 2005

name redacted

Law Clerk

American Law Division

Congressional Research Service ˜ The Library of Congress

The Availability of Judicial Review Regarding Military

Base Closures and Realignments

Summary

The 2005 round of military base realignments and closures (BRAC) is now

underway. The Defense Base Closure and Realignment Act of 1990 (Base Closure

Act), as amended, establishes mandatory procedures to be followed throughout the

BRAC process and identifies criteria to be used in formulating BRAC

recommendations. However, judicial review is unlikely to be available to remedy

alleged failures to comply with the Base Closure Act’s provisions. A synopsis of the

relevant law regarding the availability of judicial review in this context is included

below:

The actions of the Secretary of Defense (Secretary) and the

independent BRAC Commission (Commission) are not considered

to be “final agency action,” and thus cannot be judicially reviewed

pursuant to the Administrative Procedure Act (APA).

Even if a court determined that the actions of the Secretary and the

Commission were “final agency action,” the court would likely

consider the case to fall under one of two APA exceptions to judicial

review: (1) when statutes preclude judicial review or (2) when

agency action is committed to agency discretion by law.

The President’s actions cannot be judicially reviewed under the

APA, because the President is not an “agency” covered by the

statute.

A claim that the President exceeded his statutory authority under the

Base Closure Act has been held to be judicially unreviewable,

because the Base Closure Act gives the President broad discretion

in approving or disapproving BRAC recommendations.

Thus, courts would likely allow the BRAC process to proceed even if the

Department of Defense, the Commission, or the President did not comply with the

Base Closure Act’s requirements.

This report was prepared by (name redacted), Law Clerk, under the general

supervision of (name redac ted), Legislative Attorney. It will be updated as case

developments warrant.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Administrative Procedure Act Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Determining the Finality of Agency Action . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutory Preclusion of Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Agency Actions Committed to Agency Discretion by Law . . . . . . . . . . . . . . 5

Review of Presidential Action Under the APA . . . . . . . . . . . . . . . . . . . . . . . 7

Base Closure Act Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Constitutional Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

List of Figures

Figure 1: The BRAC Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Availability of Judicial Review

Regarding Military Base Closures

and Realignments

Introduction1

The Defense Base Closure and Realignment Act of 1990 (Base Closure Act),

as amended, generally governs the military base realignment and closure (BRAC)

process.2 After three previous BRAC rounds, Congress authorized a fourth round for

2005, which is now underway.3

The BRAC process involves a complex statutory scheme, under which

numerous governmental entities play a role in recommending bases to be closed or

realigned. A brief summary of the major steps in the process is illustrated in Figure

1 on the following page. In addition to establishing the basic framework for the

BRAC process, the Base Closure Act sets forth a variety of selection criteria and

mandatory procedures, such as the requirements that certain information be disclosed

and that certain meetings be made open to the public

This report analyzes whether judicial review is available when plaintiffs allege

that the Department of Defense (DOD), the independent BRAC Commission

(Commission), or the President has either (1) failed to comply with procedural

requirements of the Base Closure Act or (2) failed to properly apply specified

selection criteria in making BRAC determinations. Congress could employ

numerous strategies to attempt to “enforce” the Base Closure Act.4 However, this

report focuses on the effect a failure to comply would have if Members of Congress

or other parties sued based on an alleged failure to comply with the Act’s provisions.5

In particular, the report synthesizes key federal court decisions that address three

This report was prepared by (name redacted), Law Clerk, under the general supervision of

(name redacted), Legislative Attorney. It will be updated as case developments warrant.

Defense Base Closure & Realignment Act of 1990, P. L. 101-510; see also P.L. 107-107.

For ease of reference, all citations to the Base Closure Act refer to the relevant sections of

the Base Closure Act as it appears in the note following 10 U.S.C. § 2687 (Supp. 2003).

P.L. 107-107, § 3001, 115 Stat. 1012 (2001).

For example, Congress could use its subpoena power to obtain undisclosed information or

use the appropriations process to affect BRAC actions.

This report does not analyze standing. In its most basic form, Article III standing requires

a showing that plaintiffs suffered “injury in fact” that was caused by the challenged action,

and that such injury would likely be redressed by a favorable judicial determination. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Standing of Members of

Congress to sue raises other questions as well. See Raines v. Byrd, 521 U.S. 811 (1997).

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potential bases for judicial review of BRAC-related actions: the Administrative

Procedure Act (APA), the Base Closure Act, and the U.S. Constitution.

Figure 1: The BRAC Process6

Additional CRS reports addressing a variety of BRAC issues are also

available.7

All citations in Figure 1 are to the Base Closure Act, unless otherwise noted.

For information regarding BRAC processes and issues, see CRS Report RL32216, Military

Base Closures: Implementing the 2005 Round, by (name redacted); CRS Report

RS22061, Military Base Closures: The 2005 BRAC Commission, by (name redacted) and

(name redacted); and CRS Report 97-305,

Military Base Closures: A Historical View

(continued...)

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Administrative Procedure Act Claims

The Administrative Procedure Act (APA) provides for judicial review of “final

agency action,”8 unless either of two exceptions applies: (1) when a statute precludes

judicial review or (2) when “agency action is committed to agency discretion by

law.”9

Determining the Finality of Agency Action

In Dalton v. Specter, Members of Congress and other plaintiffs sought to enjoin

the Secretary of Defense (Secretary) from closing a military installation during a

previous BRAC round because of alleged substantive and procedural violations of

the Base Closure Act.10 Specifically, plaintiffs alleged that the Secretary’s report and

the Commission’s report were subject to judicial review under the APA.11

In Dalton, the Supreme Court held that the issuances of the Secretary’s report

and the Commission’s report were not judicially reviewable actions under the APA

because they were not “final agency action[s].”12 The Court explained that “‘[t]he

core question’ for determining finality [of agency action under the APA is] ‘whether

the agency has completed its decisionmaking process, and whether the result of that

process is one that will directly affect the parties.’”13 Because the Base Closure Act

established a process under which the President takes the final action that affects

military installations (see Figure 1 on the previous page), the actions of the Secretary

and the Commission did not directly affect the parties.14 Thus, the Court held that

they were unreviewable under the APA.15

The Dalton decision affirmed the analysis in Cohen v. Rice, in which the First

Circuit stated that the President’s statutory right to affect the BRAC process meant

(...continued)

from 1988 to 1995, by (name redacted) and George Siehl. For information regarding

issues such as property disposal and environmental cleanup, see CRS Report RS22066, Base

Realignment and Closure (BRAC): Property Transfer and Disposal, by (name redacted);

CRS Report RS22065, Military Base Closures: Role and Costs of Environmental Cleanup,

by (name redacted); and CRS Report RS22147, Military Base Closure: Socioeconomic

Impacts, by (name redacted) and (name redacted).

5 U.S.C. § 704 (2000).

Id. § 701(a).

Dalton v. Specter, 511 U.S. 462, 464, 466 (1994).

Id. at 466; see also 5 U.S.C. § 701 et seq. (2000).

Dalton, 511 U.S. at 469.

Id. at 470 (quoting Franklin v. Massachusetts, 505 U.S. 788, 796-97 (1992)).

Id. at 469-70; accord Cohen v. Rice, 992 F.2d 376, 381-82 (1st Cir. 1993).

Dalton, 511 U.S. at 470-71.

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that previous steps of the BRAC process were not final.16 As the Cohen court

explained:

Under the 1990 Act, the President is not required to submit the Commission’s

report to Congress. In addition, the 1990 Act gives the President the power to

order the Commission to revise its report, and, in the final analysis, the President

has the power to terminate a base closure cycle altogether via a second rejection

of a Commission report.17

In addition, a subsequent Supreme Court decision described the BRAC reports as

“purely advisory” and subject to the “absolute discretion” of the President, thus

making them non-final agency action for APA purposes.18

Importantly, the Dalton Court applied its analysis of finality under the APA to

both substantive claims (applying improper selection criteria) and procedural claims

(e.g., failing to make certain information public).19 Therefore, the lack of finality in

BRAC actions taken by the Secretary or the Commission bars judicial review of such

actions under the APA.20

Statutory Preclusion of Judicial Review

Four Justices concurred in the Dalton Court’s judgment that judicial review was

not available under the APA, but argued in a separate concurring opinion that the

Court should not have decided the issue of whether the agency actions were final.21

The foundation for this argument is that under the APA, judicial review is not

available if statutes preclude judicial review.22

Justice Souter — writing for these four Justices — argued that “the text,

structure, and purpose of the Act compel the conclusion that judicial review of the

Commission’s or the Secretary’s compliance with it is precluded” (except for certain

environmental objections to base closure implementation plans).23 Souter’s opinion

concluded that Congress intended for BRAC actions to be “quick and final, or [for]

no action [to] be taken at all.”24

See id.

Cohen, 992 F.2d at 381-82.

See Bennett v. Spear, 520 U.S. 154, 178 (1997) (citing Dalton, 511 U.S. at 478).

See Dalton, 511 U.S. at 466, 468-71; accord Cohen, 992 F.2d at 381-82.

Dalton, 511 U.S. at 468-71.

See id. at 478-84 (Souter, J., concurring in judgment).

See 5 U.S.C. § 701(a)(1).

Id. at 479, 483 (Souter, J., concurring in judgment).

Id. at 479 (Souter, J., concurring in judgment).

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Souter cited a variety of evidence to support the contention that Congress

generally intended to preclude judicial review under the Base Closure Act:25

statutorily-mandated strict time deadlines for making and

implementing BRAC decisions

“the all-or-nothing base-closing requirement at the core of the Act”

congressional frustration resulting from previous attempts to close

military bases

“nonjudicial opportunities to assess any procedural (or other)

irregularities,” (i.e., the opportunities for the Commission and the

Comptroller General to review the Secretary’s recommendations, the

President’s opportunity to consider procedural flaws, and Congress’s

opportunity to disapprove the recommendations)

“the temporary nature of the Commission”

the fact that the Act expressly provides for judicial review regarding

objections to base closure implementation plans under the National

Environmental Policy Act of 1969 (NEPA) that are brought “within

a narrow time frame,” but the Act does not explicitly provide for any

other judicial review

Importantly, whether the Supreme Court applies the rationale of the Dalton

majority or Justice Souter’s Dalton concurrence, the Court would likely decide not

to review the BRAC actions of the Secretary or the Commission under the APA in

the 2005 round.

Agency Actions Committed to Agency Discretion by Law

Under the APA, judicial review of agency action is not available if “agency

action is committed to agency discretion by law.”26 Even if the actions of the

Secretary or the Commission were held to be final agency action (which would be

unlikely, given the Dalton decision), courts might consider those agency actions to

be committed to agency discretion by law — thus making them judicially

unreviewable.27 Because there is a “strong presumption that Congress intends

judicial review of administrative action,” “clear and convincing evidence” of contrary

congressional intent must exist in order for this exception to judicial review to

apply.28

The issue of whether actions of the Secretary or the Commission under the Base

Closure Act are committed to agency discretion by law has not been adjudicated by

the Supreme Court. Instead, several Supreme Court cases have addressed this issue

in non-BRAC contexts and one D.C. Circuit case addressed the applicability of the

Id. at 479, 482-83 (Souter, J., concurring in judgment).

5 U.S.C. § 701(a)(2).

See Nat’l Fed’n of Fed. Employees v. United States, 905 F.2d 400, 405-06 (D.C. Cir.

1990).

Franklin, 505 U.S. at 816 (Stevens, J., concurring in judgment) (internal citations and

quotation marks omitted); see also 5 U.S.C. § 701(a)(2).

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exception to the Base Closure Act. These cases are analyzed in the following

paragraphs.

In Heckler v. Chaney, the Supreme Court explained that the exception for

agency action being committed to agency discretion applies if “a court would have

no meaningful standard against which to judge the agency’s exercise of discretion.”29

The Court continued, saying that “if no judicially manageable standards are

available for judging how and when an agency should exercise its discretion, then it

is impossible to evaluate agency action for ‘abuse of discretion,’ [as provided for in

5 U.S.C. § 706].”30

In National Federation, the D.C. Circuit found that the criteria DOD and the

Commission use for making BRAC determinations do not provide judicially

manageable standards, as required by the Heckler test.31 The D.C. Circuit articulated

the rationale for its finding:

[T]he subject matter of those criteria is not ‘judicially manageable’ . . . .

[because] judicial review of the decisions of the Secretary and the Commission

would necessarily involve second-guessing the Secretary’s assessment of the

nation’s military force structure and the military value of the bases within that

structure. We think the federal judiciary is ill-equipped to conduct reviews of the

nation’s military policy.32

Based on this finding, the National Federation court held that application of the

selection criteria to military installations during the BRAC process is agency action

committed to agency discretion by law, thus making it judicially unreviewable under

the APA.33

More recently, the Supreme Court observed that this exception has generally

applied in three categories of cases:

(1) cases involving national security;

(2) cases where plaintiffs sought judicial review of an agency’s refusal to pursue

enforcement actions; and

Heckler v. Chaney, 470 U.S. 821, 830 (1985).

Id. (emphasis added). The Supreme Court has also stated that the exception in 5 U.S.C.

§ 701(a)(2) applies when there is no law available for the court to apply. See Webster v.

Doe, 486 U.S. 592, 599 (1988). However, in the BRAC context, the Base Closure Act

provides the relevant law. Thus, the critical question is whether that law contains a

“meaningful standard,” as required by Heckler. See Heckler, 470 U.S. at 830.

Nat’l Fed’n, 905 F.2d at 405; see Heckler, 470 U.S. at 830. The criteria used during the

BRAC round at issue in National Federation were substantially similar to those being used

in the 2005 BRAC round. Compare Base Closure Act § 2913 with Nat’l Fed’n, 905 F.2d

at 402.

Nat’l Fed’n, 905 F.2d at 405-06.

Id.

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(3) cases where plaintiffs sought review of “an agency’s refusal to grant

reconsideration of an action because of material error.”34

Although the Base Closure Act may not fit squarely within any of those three

categories, the Supreme Court might adopt the D.C. Circuit’s construction of the

exception from National Federation were it to construe the exception in the context

of BRAC.

Review of Presidential Action Under the APA

In Dalton, the Supreme Court held that the President’s approval of the

Secretary’s BRAC recommendations was not judicially reviewable under the APA,

because the President is not an agency.35 Although the APA’s definition of an

“agency” does not explicitly include or exclude the President,36 the Court had

previously held that the President is not subject to the APA, due to separation of

powers principles.37

Base Closure Act Claims

The Dalton Court distinguished between two types of potential claims: (1)

claims that the President exceeded his statutory authority and (2) claims challenging

the constitutionality of the President’s actions.38 The Court stated that not every case

of ultra vires conduct by an executive official was ipso facto unconstitutional.39

In Dalton, the lower court had held that the President would be acting in excess

of his statutory authority under the Base Closure Act if the Secretary or the

Commission had failed to comply with statutorily-required procedures during

See Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993).

Dalton, 511 U.S. at 470; accord Franklin, 505 U.S. at 801.

See 5 U.S.C. § 701(b)(1) (emphasis added): “‘[A]gency means each authority of the

Government of the United States, whether or not it is within or subject to review by another

agency, but does not include — (A) the Congress; (B) the courts of the United States; (c)

the governments of the territories or possessions of the United States; (D) the government

of the District of Columbia; (E) agencies composed of representatives of the parties or of

representatives of organizations of the parties to the disputes determined by them; (F) courts

martial and military commissions; (G) military authority exercised in the field in time of war

or in occupied territory; or (H) functions conferred by [certain statutes].”

See Franklin, 505 U.S. at 800-01.

Dalton, 511 U.S. at 472-75.

Id. at 472-74.

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previous stages of the BRAC process.40 On appeal, the Supreme Court characterized

this claim as a statutory claim — not as a constitutional claim.41

The Court assumed arguendo that some statutory claims against the President

could be judicially reviewable apart from the APA.42 However, it stated that

statutory claims are not judicially reviewable apart from the APA “when the statute

in question commits the decision to the discretion of the President.”43 According to

the Court, the Base Closure Act did not limit the President’s discretion in any way.44

Thus, the President’s authority to approve the BRAC recommendations was “not

contingent on the Secretary’s and Commission’s fulfillment of all the procedural

requirements imposed upon them by the [Base Closure] Act.”45 Therefore, the issue

of how the President chose to exercise his discretion under the Base Closure Act was

held to be judicially unreviewable.46

Justice Blackmun, concurring in part and concurring in the judgment, attempted

to narrowly define the scope of the Dalton decision.47 He considered the decision to

be one that would allow judicial review of a claim (1) if the President acted in

contravention of his statutory authority (e.g., adding a base to the Commission’s

BRAC recommendations list) or (2) if a plaintiff brought “a timely claim seeking

direct relief from a procedural violation” (e.g., a claim that a Commission meeting

should be public or that the Secretary should publish proposed selection criteria and

allow for public comment).48

However, Justice Blackmun’s argument that plaintiffs could seek relief from a

procedural violation of the Base Closure Act appears to directly conflict with Chief

Justice Rehnquist’s opinion on behalf of the Dalton majority, which stated:

The President’s authority to act is not contingent on the Secretary’s and

Commission’s fulfillment of all the procedural requirements imposed upon them

by the [Base Closure] Act. Nothing in § 2903(e) requires the President to

determine whether the Secretary or Commission committed any procedural

violations in making their recommendations, nor does § 2903(e) prohibit the

President from approving recommendations that are procedurally flawed.49

Dalton, 511 U.S. at 466, 474.

Id. at 474-75. See the following section of this report for an analysis of potential

constitutional claims.

Id. at 474.

Id.

Id. at 476-77; see Base Closure Act § 2903(e).

Dalton, 511 U.S. at 476.

Id.

Id. at 477-78 (Blackmun, J., concurring in judgment).

Id. (Blackmun, J., concurring in judgment).

Id. at 476-77.

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Constitutional Claims

As mentioned in the preceding section of this report, the Dalton Court explained

that claims that the President acted in excess of his statutory authority differ from

claims that the President unconstitutionally acted in the absence of statutory

authority.50 Specifically, the Court distinguished the issues in Dalton from those in

Youngstown Sheet & Tube Co. v. Sawyer, a landmark case on presidential powers.51

The Court said that Youngstown “involved the conceded absence of any statutory

authority, not a claim that the President acted in excess of such authority.”52 Because

the Base Closure Act provides statutory authority to the President, the Dalton Court

did not find it necessary to examine the constitutional powers of the President (e.g.,

the President’s powers as Commander-in-Chief).

A litigant could also challenge the constitutionality of the Base Closure Act

itself. For example, in National Federation, plaintiffs unsuccessfully argued that the

1988 Base Closure Act violated the non-delegation doctrine and the separation of

powers doctrine.53 However, the Base Closure Act has not yet been held

unconstitutional by any federal appellate courts.

Id. at 472-75.

Id. at 473; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Id. (citing Youngstown, 343 U.S. 579). Indeed, Justice Jackson’s Youngstown concurrence

also attempted to articulate several categories of presidential action: “1. When the President

acts pursuant to an express or implied authorization of Congress, his authority is at its

maximum . . . . 2. When the President acts in absence of either a congressional grant or

denial of authority . . . . [and] 3. When the President takes measures incompatible with the

express or implied will of Congress, his power is at its lowest ebb, for then he can rely only

upon his own constitutional powers minus any constitutional powers of Congress over the

matter.” Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring). Using Justice Jackson’s

framework, the Dalton case would fall within the first category, because the Base Closure

Act granted the President discretion in approving or disapproving the BRAC

recommendations. See Dalton, 511 U.S. at 472-75.

Nat’l Fed’n, 905 F.2d at 404-05.

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