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) 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) 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) 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. 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. 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.