The Availability of Judicial Review Regarding Military Base Closures and Realignments
Released: 2005-06-30T00:00:00

Summary:
The 2005 round of military base realignments and closures (BRAC) is now underway. TheDefense Base Closure and Realignment Act of 1990 (Base Closure Act), as amended, establishesmandatory procedures to be followed throughout the BRAC process and identifies criteria to be usedin formulating BRAC recommendations. However, judicial review is unlikely to be available toremedy alleged failures to comply with the Base Closure Act's provisions. A synopsis of the relevantlaw regarding the availability of judicial review in this context is included below:
The actions of the Secretary of Defense (Secretary) and the independent BRACCommission (Commission) are not considered to be "final agency action," and thus cannot bejudicially 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 oneof two APA exceptions to judicial review: (1) when statutes preclude judicial review or (2) whenagency action is committed to agency discretion by law.
The President's actions cannot be judicially reviewed under the APA, becausethe President is not an "agency" covered by the statute.
A claim that the President exceeded his statutory authority under the BaseClosure Act has been held to be judicially unreviewable, because the Base Closure Act gives thePresident broad discretion in approving or disapproving BRACrecommendations.
Thus, courts would likely allow the BRAC process to proceed even if the Department ofDefense, the Commission, or the President did not comply with the Base Closure Act's requirements.
This report was prepared by [author name scrubbed], Law Clerk, under the general supervision of[author name scrubbed], Legislative Attorney. It will be updated as case developments warrant.

subsections: section_title: Introduction(1)
paragraphs: 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 BRACrounds, Congress authorized a fourth round for 2005, which is now underway. (3) 
The BRAC process involves a complex statutory scheme, under which numerousgovernmental entities play a role in recommending bases to be closed or realigned. A brief summaryof the major steps in the process is illustrated in Figure 1 on the following page. In addition toestablishing the basic framework for the BRAC process, the Base Closure Act sets forth a varietyof selection criteria and mandatory procedures, such as the requirements that certain information bedisclosed and that certain meetings be made open to the public
This report analyzes whether judicial review is available when plaintiffs allege that theDepartment of Defense (DOD), the independent BRAC Commission (Commission), or the Presidenthas either (1) failed to comply with procedural requirements of the Base Closure Act or (2) failedto properly apply specified selection criteria in making BRAC determinations. Congress couldemploy numerous strategies to attempt to "enforce" the Base Closure Act. (4) However, this report focuseson the effect a failure to comply would have if Members of Congress or other parties sued based onan alleged failure to comply with the Act's provisions. (5) In particular, the report synthesizes key federal court decisions thataddress three potential bases for judicial review of BRAC-related actions: the AdministrativeProcedure Act (APA), the Base Closure Act, and the U.S. Constitution.
Figure 1: The BRAC Process (6)
Additional CRS reports addressing a variety of BRAC issues are also available. (7) 
section_title: Administrative Procedure Act Claims
paragraphs: The Administrative Procedure Act (APA) provides for judicial review of "final agencyaction," (8) unless either oftwo exceptions applies: (1) when a statute precludes judicial review or (2) when "agency action iscommitted to agency discretion by law." (9) 
subsections: section_title: Determining the Finality of Agency Action
paragraphs: In Dalton v. Specter , Members of Congress and other plaintiffs sought to enjoin the Secretaryof Defense (Secretary) from closing a military installation during a previous BRAC round becauseof alleged substantive and procedural violations of the Base Closure Act. (10) Specifically, plaintiffsalleged that the Secretary's report and the Commission's report were subject to judicial review underthe APA. (11) 
In Dalton , the Supreme Court held that the issuances of the Secretary's report and theCommission'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 determiningfinality [of agency action under the APA is] 'whether the agency has completed its decisionmakingprocess, and whether the result of that process is one that will directly affect the parties.'" (13) Because the Base ClosureAct established a process under which the President takes the final action that affects militaryinstallations (see Figure 1 on the previous page), the actions of the Secretary and the Commissiondid not directly affect the parties. (14) Thus, the Court held that they were unreviewable under theAPA. (15) 
The Dalton decision affirmed the analysis in Cohen v. Rice , in which the First Circuit statedthat the President's statutory right to affect the BRAC process meant that previous steps of the BRACprocess were not final. (16) As the Cohen court explained:
Under the 1990 Act, the President is not required tosubmit the Commission's report to Congress. In addition, the 1990 Act gives the President the powerto order the Commission to revise its report, and, in the final analysis, the President has the powerto 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 actionfor APA purposes. (18) 
Importantly, the Dalton Court applied its analysis of finality under the APA to bothsubstantive claims (applying improper selection criteria) and procedural claims (e.g., failing to makecertain information public). (19) Therefore, the lack of finality in BRAC actions taken by theSecretary or the Commission bars judicial review of such actions under the APA. (20) 
section_title: Statutory Preclusion of Judicial Review
paragraphs: Four Justices concurred in the Dalton Court's judgment that judicial review was not availableunder the APA, but argued in a separate concurring opinion that the Court should not have decidedthe issue of whether the agency actions were final. (21) The foundation for this argument is that under the APA, judicialreview is not available if statutes preclude judicial review. (22) 
Justice Souter -- writing for these four Justices -- argued that "the text, structure, and purposeof the Act compel the conclusion that judicial review of the Commission's or the Secretary'scompliance with it is precluded" (except for certain environmental objections to base closureimplementation plans). (23) Souter's opinion concluded that Congress intended for BRACactions to be "quick and final, or [for] no action [to] be taken at all." (24) 
Souter cited a variety of evidence to support the contention that Congress generally intendedto preclude judicial review under the Base Closure Act: (25) 
statutorily-mandated strict time deadlines for making and implementing BRACdecisions
"the all-or-nothing base-closing requirement at the core of theAct"
congressional frustration resulting from previous attempts to close militarybases
"nonjudicial opportunities to assess any procedural (or other) irregularities,"(i.e., the opportunities for the Commission and the Comptroller General to review the Secretary'srecommendations, the President's opportunity to consider procedural flaws, and Congress'sopportunity to disapprove the recommendations)
"the temporary nature of the Commission"
the fact that the Act expressly provides for judicial review regarding objectionsto 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 otherjudicial review
Importantly, whether the Supreme Court applies the rationale of the Dalton majority orJustice Souter's Dalton concurrence, the Court would likely decide not to review the BRAC actionsof the Secretary or the Commission under the APA in the 2005 round.
section_title: Agency Actions Committed to Agency Discretion by Law
paragraphs: Under the APA, judicial review of agency action is not available if "agency action iscommitted to agency discretion by law." (26) Even if the actions of the Secretary or the Commission were heldto be final agency action (which would be unlikely, given the Dalton decision), courts might considerthose agency actions to be committed to agency discretion by law -- thus making them judiciallyunreviewable. (27) Because there is a "strong presumption that Congress intends judicial review of administrativeaction," "clear and convincing evidence" of contrary congressional intent must exist in order for thisexception to judicial review to apply. (28) 
The issue of whether actions of the Secretary or the Commission under the Base Closure Actare 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. Circuitcase addressed the applicability of the exception to the Base Closure Act. These cases are analyzedin the following paragraphs.
In Heckler v. Chaney , the Supreme Court explained that the exception for agency actionbeing committed to agency discretion applies if "a court would have no meaningful standard againstwhich to judge the agency's exercise of discretion." (29) The Court continued, saying that "if no judicially manageablestandards are available for judging how and when an agency should exercise its discretion, then itis impossible to evaluate agency action for 'abuse of discretion,' [as provided for in 5 U.S.C. Â§706]." (30) 
In National Federation , the D.C. Circuit found that the criteria DOD and the Commissionuse for making BRAC determinations do not provide judicially manageable standards, as requiredby the Heckler test. (31) The D.C. Circuit articulated the rationale for its finding:
[T]he subject matter of those criteria is not 'judiciallymanageable' . . . . [because] judicial review of the decisions of the Secretary and the Commissionwould necessarily involve second-guessing the Secretary's assessment of the nation's military forcestructure and the military value of the bases within that structure. We think the federal judiciary isill-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 criteriato military installations during the BRAC process is agency action committed to agency discretionby law, thus making it judicially unreviewable under the APA. (33) 
More recently, the Supreme Court observed that this exception has generally applied in threecategories of cases:
(1) cases involving national security;
(2) cases where plaintiffs sought judicial review of an agency's refusal to pursue enforcementactions; and
(3) cases where plaintiffs sought review of "an agency's refusal to grant reconsideration of anaction because of material error." (34) 
Although the Base Closure Act may not fit squarely within any of those three categories, theSupreme Court might adopt the D.C. Circuit's construction of the exception from NationalFederation were it to construe the exception in the context of BRAC.
section_title: Review of Presidential Action Under the APA
paragraphs: In Dalton , the Supreme Court held that the President's approval of the Secretary's BRACrecommendations was not judicially reviewable under the APA, because the President is not anagency. (35) Althoughthe APA's definition of an "agency" does not explicitly include or exclude the President, (36) the Court had previouslyheld that the President is not subject to the APA, due to separation of powers principles. (37) 
section_title: Base Closure Act Claims
paragraphs: The Dalton Court distinguished between two types of potential claims: (1) claims that thePresident exceeded his statutory authority and (2) claims challenging the constitutionality of thePresident'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 statutoryauthority under the Base Closure Act if the Secretary or the Commission had failed to comply withstatutorily-required procedures during previous stages of the BRAC process. (40) On appeal, the SupremeCourt 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 bejudicially reviewable apart from the APA. (42) However, it stated that statutory claims are not judiciallyreviewable apart from the APA "when the statute in question commits the decision to the discretionof the President." (43) According to the Court, the Base Closure Act did not limit the President's discretion in anyway. (44) Thus, thePresident's authority to approve the BRAC recommendations was "not contingent on the Secretary'sand Commission's fulfillment of all the procedural requirements imposed upon them by the [BaseClosure] Act." (45) Therefore, the issue of how the President chose to exercise his discretion under the Base Closure Actwas held to be judicially unreviewable. (46) 
Justice Blackmun, concurring in part and concurring in the judgment, attempted to narrowlydefine the scope of the Dalton decision. (47) He considered the decision to be one that would allow judicialreview of a claim (1) if the President acted in contravention of his statutory authority (e.g., addinga base to the Commission's BRAC recommendations list) or (2) if a plaintiff brought "a timely claimseeking direct relief from a procedural violation" (e.g., a claim that a Commission meeting shouldbe public or that the Secretary should publish proposed selection criteria and allow for publiccomment). (48) 
However, Justice Blackmun's argument that plaintiffs could seek relief from a proceduralviolation of the Base Closure Act appears to directly conflict with Chief Justice Rehnquist's opinionon behalf of the Dalton majority, which stated:
The President's authority to act is not contingent on theSecretary's and Commission's fulfillment of all the procedural requirements imposed upon them bythe [Base Closure] Act. Nothing in Â§ 2903(e) requires the President to determine whether theSecretary or Commission committed any procedural violations in making their recommendations,nor does Â§ 2903(e) prohibit the President from approving recommendations that are procedurallyflawed. (49)
section_title: Constitutional Claims
paragraphs: As mentioned in the preceding section of this report, the Dalton Court explained that claims thatthe President acted in excess of his statutory authority differ from claims that the Presidentunconstitutionally acted in the absence of statutory authority. (50) Specifically, the Courtdistinguished the issues in Dalton from those in Youngstown Sheet & Tube Co. v. Sawyer , alandmark 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 ClosureAct provides statutory authority to the President, the Dalton Court did not find it necessary toexamine the constitutional powers of the President (e.g., the President's powers asCommander-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 thenon-delegation doctrine and the separation of powers doctrine. (53) However, the BaseClosure Act has not yet been held unconstitutional by any federal appellate courts.