Title Specter v. Garrett
Date 1993
By
Subject Other\Dissenting
Contents
Page 1
50 of 64 DOCUMENTS
SEN. ARLEN SPECTER; SEN. HARRIS WOFFORD; SEN. BILL BRADLEY; SEN. FRANK R. LAUTENBERG; GOVERNOR ROBERT P. CASEY; COMMONWEALTH OF PENNSYLVANIA; ERNEST D. PREATE, JR., PENNSYLVANIA ATTORNEY GENERAL; REP. CURT WELDON, REP. THOMAS FOGLIETTA; REP. ROBERT ANDREWS; REP. R. LAWRENCE COUGHLIN; CITY OF PHILADELPHIA; HOWARD J. LANDRY; INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 3, WILLIAM F. REIL; METAL TRADES COUNCIL, LOCAL 687 MACHINISTS; GOVERNOR JAMES J. FLORIO; STATE OF NEW JERSEY; ROBERT J. DEL TUFO, NEW JERSEY ATTORNEY GENERAL; GOVERNOR MICHAEL N. CASTLE; STATE OF DELAWARE; REP. PETER H. KOSTMEYER; REP. ROBERT A. BORSKI, RONALD WARRINGTON; PLANNERS ESTIMATORS PROGRESSMAN & SCHEDULERS UNION LOCAL NO. 2 v. H. LAWRENCE GARRETT, III, Secretary of the Navy; RICHARD CHENEY, Secretary of Defense; THE DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION, AND ITS MEMBERS; JAMES A. COURTER; WILLIAM L. BALL, III; HOWARD H. CALLAWAY; DUANE H. CASSIDY; ARTHUR LEVITT, JR.; JAMES C. SMITH, II; ROBERT D. STUART, JR., U.S. Sen. Arlen Specter, U.S. Sen. Harris Wofford, U.S. Sen. Bill Bradley, U.S. Sen. Frank R. Lautenberg, Governor Robert P. Casey, the Commonwealth of Pennsylvania, Pennsylvania Attorney General Ernest D. Preate, Jr., Governor James J. Florio, the State of New Jersey, New Jersey Attorney General Robert J. Del Tufo, Governor Michael N. Castle, the State of Delaware, U.S. Rep. Curt Weldon, U.S. Rep. Thomas Foglietta, U.S. Rep. Robert E. Andrews, U.S. Rep. R. Lawrence Coughlin, U.S. Rep. Peter H. Kostmayer, U.S. Rep. Robert A. Borski, the City of Philadelphia, Howard J. Landry, International Federation of Professional and Technical Engineers, Local 3, William F. Reil, Metals Trades Council, Local 687, Machinists, Ronald Warrington, the Planners Estimators Progressman & Schedulers Union, Local No. 2, Appellants
No. 91-1932
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
995 F.2d 404; 1993 U.S. App. LEXIS 11488
February 24, 1993, Reargued
May 18, 1993, Filed
SUBSEQUENT HISTORY: Petition for Rehearing
Denied June 14, 1993, Reported at: 1993 U.S. App. LEXIS
14450.
PRIOR HISTORY: **1 On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 91-4322). On Remand from the Supreme Court of the United States
(No. 92-485)
CASE SUMMARY:
PROCEDURAL POSTURE: On remand from the
United States Supreme Court, defendants, Secretaries of
the Navy and Defense, a military base closure commis- sion and its members, sought to overturn the court's prior decision which held that plaintiffs, states, state officials, and U.S. senators and representatives, could proceed with their action seeking an injunction to prohibit defendants from closing a naval shipyard.
OVERVIEW: Plaintiffs, states, state officials, and U.S. senators and representatives, brought an action to enjoin defendants, Secretaries of the Navy and Defense, a mil- itary base closure commission and its members, from closing a naval shipyard, claiming that defendants failed to follow the procedures of the Defense Base Closure and Realignment Act of 1990 (Act), Pub. L. No. 101-510,
995 F.2d 404, *; 1993 U.S. App. LEXIS 11488, **1
Page 2
104 Stat. 108. In its earlier opinion, the court held that the district court could review the claim that the ship- yard's closing would be illegal because it would be the result of action by defendants which were inconsistent with the Act's procedures. Subsequently, the United States Supreme Court remanded the case for reconsideration in light of its recent decision holding that the President was not an "agency" within the meaning of the Administrative Procedure Act (APA), 5 U.S.C.S. § 701 et seq. and thus his actions were not subject to review thereunder. In reaf- firming its opinion, the court found that because executive authority in closing the shipyard was granted by a statute that included procedures for closure, defendants' actions were subject to review.
OUTCOME: The court reaffirmed its holding that plain- tiffs, states, state officials, and U.S. senators and rep- resentatives, had standing to seek to enjoin defendants, Secretaries of the Navy and Defense, military base clo- sure commission and its members, because defendants' actions in attempting to close a naval shipyard were sub- ject to judicial review under the Defense Base Closure and Realignment Act of 1990, and were not shielded by sovereign immunity.
LexisNexis(R) Headnotes
Military & Veterans Law > Military Justice
HN1 Under the Defense Base Closure and Realignment
Act of 1990 (Act), Pub. L. No. 101-510, §§ 2904-2905,
104 Stat. 1808, 1812-14 (1990), it is the responsibility of the Secretary of Defense to close the military bases designated as a result of the process prescribed by the Act.
Governments > Federal Government > Executive Offices
Constitutional Law > The Presidency
HN2 The President must have constitutional or statu- tory authority for whatever action he wishes to take and judicial review is available to determine whether such authority exists.
Constitutional Law > Separation of Powers
HN3 It is the constitutionally-mandated separation of powers which requires the President to remain within the scope of his legal authority. The judicial branch of the federal government has the constitutional duty of requir- ing the executive branch to remain within the limits stated by the legislative branch.
Constitutional Law > The Presidency
Constitutional Law > Separation of Powers
HN4 The President, no less than his lieutenants, must have statutory or constitutional authority for his actions and where the only available authority has been expressly
confined by Congress to action based on a particular type of process, judicial review exists to determine whether that process has been followed.
Governments > Federal Government > Claims By & Against
Constitutional Law > Separation of Powers
HN5 Where it is alleged that presidential action has failed to comply with the mandatory procedural require- ments of the only statute authorizing such action and has thereby violated the constitutionally-mandated sep- aration of powers, sovereign immunity concerns do not apply.
Governments > Federal Government > Claims By & Against
HN6 If the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they are tortious under general law, if they would be regarded as the actions of a private principal under the normal rules of agency. Governments > Federal Government > Claims By & Against
Administrative Law > Judicial Review > Standing
HN7 See 5 U.S.C.S. § 702.
Governments > Federal Government > Claims By & Against
Administrative Law > Judicial Review > Standing
HN8 The waiver of sovereign immunity contained in §
702 of the Administrative Procedure Act (Act), 5 U.S.C.S.
§ 702, is not limited to suits brought under the Act. Governments > Federal Government > Claims By & Against
HN9 Review of the legality of Presidential action can or- dinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive.
COUNSEL: Bruce W. Kauffman (Argued), David H. Pittinsky, Camille Wolf Spiniello, Patrick T. Davish, Mark A. Nation, Dilworth, Paxson, Kalish & Kauffman, 2600
The Fidelity Building, Philadelphia, PA 19109-1094, OF COUNSEL: Senator Arlen Specter (Argued), Green Federal Building, Room 9400, Sixth and Arch Streets, Philadelphia, PA 19106, Attorneys for Appellants.
Ernest D. Preate, Jr. Attorney General for Pennsylvania, Louis J. Rovelli, Executive Deputy Attorney General, for Pennsylvania, 15th Floor, Strawberry Square, Harrisburg, PA 17120, Attorneys for the Commonwealth, of Pennsylvania and, Ernest D. Preate, Jr. Robert J. Del Tufo, Attorney General of New Jersey, Jack M. Sabatino, Assistant Attorney General of, the State of New Jersey, Howard J. McCoach, Deputy Attorney General for, the
995 F.2d 404, *; 1993 U.S. App. LEXIS 11488, **1
Page 3
State of New Jersey, R.J. Hughes Justice Complex, CN 112, Trenton, NJ 08625, Attorneys for the State of, New Jersey, Governor James J. Florio and Robert J. Del Tufo, Charisse Lillie, Solicitor for the City of Philadelphia, **2 Room 1520, Municipal Services Building, Philadelphia, PA 19102-1692, Attorney for the City of, Philadelphia, Stuart M. Gerson, Assistant Attorney General, Michael M. Baylson, United States Attorney, Douglas N. Letter (Argued), Scott R. McIntosh, Jennifer H. Zacks, Attorneys, Appellate Staff, Civil Division, Room 3617, Department of Justice, 10th
& Pennsylvania Ave. N.W. Washington, D.C. 20530, Attorneys for Appellees.
JUDGES: BEFORE: STAPLETON, SCIRICA and
ALITO, Circuit Judges.
OPINIONBY: STAPLETON
OPINION: *406 OPINION OF THE COURT
STAPLETON, Circuit Judge:
This action to enjoin the defendants from carrying out a decision to close the Philadelphia Naval Shipyard is be- fore us for the second time. In our initial opinion in this case, Specter v. Garrett, 971 F.2d 936 (3d Cir. 1992), we held, inter alia, that plaintiffs' claim that the closing of the Shipyard would be illegal because it would be the prod- uct of a process inconsistent with certain procedural man- dates of the Defense Base Closure and Realignment Act of 1990 could proceed in the district court. Our mandate, however, was vacated by the Supreme Court and the case was remanded for reconsideration in light of Franklin v. Massachusetts, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992).
**3 After consideration of the impact of Franklin upon our prior holding, we conclude that no change in that holding is warranted. We will therefore remand this mat- ter to the district court for further proceedings consistent with our earlier opinion.
I. A.
In Franklin, the Supreme Court was presented with a situation at least superficially similar to the one be- fore us; however, it is the differences between the two cases that we find dispositive. Franklin was a suit against the President, the Secretary of Commerce, and a num- ber of other public officials challenging the methods
used in the 1990 census and the manner in which the number of seats in the House of Representatives had been allocated to the various states. Plaintiffs' claims were based upon the Administrative Procedure Act (APA) and the Constitution. A three judge panel of the United States District Court for the District of Massachusetts initially found in favor of the plaintiffs and granted the relief sought--relief which included an injunction direct- ing the Secretary of Commerce to alter her reapportion- ment report and the President to recalculate the number of Representatives per State and transmit the new calculation
**4 to Congress. Franklin, 112 S. Ct. at 2770.
The Supreme Court reversed. It first analyzed plaintiff's claim under the APA which allows review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704 (1988). The Court concluded that the Secretary of Commerce's report to the President on the results of the census does not constitute "final agency action" and is therefore unreviewable under the APA be- cause "the President, not the Secretary takes the final ac- tion that affects the States." Franklin, 112 S. Ct. at 2775; see also id. at 2773 ("The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties."). Next, the Court held that although the President's calculation of the number of Representatives and forwarding of that calculation to Congress is a fi- nal action, the President is not an "agency" within the meaning of the Act and thus, the President's action is not reviewable for abuse of discretion under the APA. Id. at
2775. **5 Finally, the Court noted that there is judi- cial review of presidential action to determine whether it violates the Constitution; however, it concluded that the action complained of in Franklin was not unconstitutional.
B.
The action currently before us is a suit against the Secretary of the Navy, the Secretary of Defense, and the Defense Base Closure Commission seeking to enjoin the closing of the Philadelphia Naval Shipyard. n1 HN1 Under the Defense Base Closure and Realignment Act of
1990 ("the Act"), it is the responsibility of the Secretary of Defense to close the bases designated as a result of the process prescribed by the Act, Pub. L. No. 101-510, §§
2904-2905, 104 Stat. 1808, 1812-14 (1990), and the pri- mary relief sought here is an order enjoining the Secretary from closing the Shipyard. The alleged basis for this relief is that the process that resulted in
995 F.2d 404, *407; 1993 U.S. App. LEXIS 11488, **5
Page 4
*407 the designation of the Shipyard as a base to be closed did not comply with the requirements set forth in the Act.
n1 The President is not a defendant in this suit.
**6
In our prior opinion, we first held that there could be no judicial review prior to the end of the process required by the Act because there was no final decision prior to that point that had an adverse impact on the plaintiffs. n2 We also concluded that the decisionmaking of the President under the Act was committed to his discretion and not properly reviewable. Specter, 971 F.2d at 946 ("One can also say with confidence that Congress intended no judi- cial review of the manner in which the President has exer- cised his discretion in selecting bases for closure . . . ."). Similarly, we held that the decisionmaking of other fed- eral officials (i.e. the Secretary of Defense, the members of the Commission) challenged by plaintiffs was commit- ted to their discretion and not judicially reviewable. Id. at 950-53. However, we also held that the district court could review the claim that the closing of the Shipyard would be illegal because it would be the product of a pro- cess inconsistent with certain procedural mandates of the Act. n3 Specifically, we concluded:
n2 More specifically, we held that action could be judicially reviewed "only if its impact upon plaintiffs is direct and immediate . . . . One can rarely if ever be injured by a base closing prior to a decision having been made to close that base. The actions of the Secretary and the Commission prior to the President's decision are merely preliminary in nature." Specter, 971 F.2d at 946.
**7
n3 For instance, we held that the allegation that
"the Secretary failed to create and transmit to the Commission and the GAO an administrative record containing all of the information the Secretary re- lied upon in making his recommendations" as re- quired by § 2903(c)(4) of the Act was judicially reviewable. Specter, 971 F.2d at 952. Similarly, we also held reviewable the plaintiffs' contention "that the Act requires the Commission to base its deci- sion solely on the Secretary's administrative record and the transcript of the public hearings, and that the Commission went beyond this record by hold- ing closed-door meetings with the Navy." Id. at
952-53.
We stressed, however, that the extent of judi-
cial review in this context was very limited and that plaintiffs, while purporting to complain about spe- cific procedural defects, were in large part seeking to get the district court to second guess decisions committed by the Act to executive discretion. Id. at 953. It is apparent to us from plaintiffs' Brief for Appellants on Remand that plaintiffs have failed to acknowledge the limited character of the review our prior opinion permits.
**8
While Congress did not intend courts to sec- ond-guess the Commander-in--Chief, it did intend to establish exclusive means for clo- sure of domestic bases. § 2909(a). With two exceptions, Congress intended that domestic bases be closed only pursuant to an exer- cise of presidential discretion informed by recommendations of the nation's military es- tablishment and an independent commission based on a common and disclosed (1) ap- praisal of military need, (2) set of criteria for closing, and (3) data base. Congress did not simply delegate this kind of decision to the President and leave to his judgment what ad- vice and data he would solicit. Rather, it es- tablished a specific procedure that would en- sure balanced and informed advice to be con- sidered by the President and by Congress be- fore the executive and legislative judgments were made.
Id. at 947 (footnote omitted).
Although we noted that because "it is the implemen- tation of the President's decision that we have been asked to enjoin, . . . at least in one sense, we are here asked to review a presidential decision," id. at 945, we con- cluded that this would not bar review **9 of plaintiffs' procedural claims:
Even if the APA does not apply to decisions of the President, however, its provisions con- cerning judicial review represent a codifica- tion of the common law, 5 Kenneth C. Davis, Administrative Law 28:4 (1984), cited with approval in Heckler v. Chaney, 470 U.S. 821,
832, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985);
see also ICC v. Bhd. of Locomotive Eng'rs,
482 U.S. 270, 282, 107 S. Ct. 2360, 96 L. Ed. 2d 222 (1987) (APA "codifies the na-
995 F.2d 404, *407; 1993 U.S. App. LEXIS 11488, **9
Page 5
ture and attributes of judicial review"), and actions of the President have never been con- sidered immune from judicial review solely because they were taken by the President.
See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72
S. Ct. 863 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79
995 F.2d 404, *408; 1993 U.S. App. LEXIS 11488, **9
Page 6
*408 L. Ed. 2d 446 (1935); see also INS
v. Chadha, 462 U.S. 919, 953, 77 L. Ed. 2d
317, 103 S. Ct. 2764 n.16 (1983) ("executive action under legislatively delegated authority
. . . is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judi- cial review"); Nixon v. Fitzgerald, 457 U.S.
731, 781, 73 L. Ed. 2d 349, 102 S. Ct. 2690
(1982) **10 (White, J., dissenting) ("it is the rule, not the exception, that executive actions--including those taken at the imme- diate direction of the President--are subject to judicial review"). . . . It follows that our conclusions with respect to the availability of judicial review in this case will be the same whether or not the APA applies to presiden- tial decisionmaking.
Id. at 945. III.
Examination of our prior decision in light of Franklin suggests to us that no change in outcome is required. Franklin's holding that the Secretary of Commerce's re- port to the President did not constitute a reviewable final action because it did not have an immediate and direct im- pact on the plaintiffs confirms our initial conclusion that there was no reviewable final action here until after the President designated the Shipyard as a facility to be closed and Congress failed to overturn that action. See Specter,
971 F.2d at 945 ("We think it can be said with confidence that Congress intended no judicial review of decisions under the Act prior to the effective date of the President's decision, i.e., the first date upon which the Secretary can carry out any closure **11 or realignment under
§ 2904(b).").
More importantly, the Court's conclusion that the President is not an "agency" under the APA, and thus, presidential action is not reviewable for abuse of discre- tion under the APA's standards is entirely consistent with our prior decision in which we assumed, without decid- ing, that the President is not an agency within the meaning of the APA. n4 Because our prior holding was not based on the existence of APA abuse of discretion review, but rather on the belief that courts may review actions taken at
the direction of the President to determine whether those actions are within applicable constitutional and statutory authority, a modification of our
n4 As previously noted, we explicitly con- cluded that our holding permitting review of plain- tiffs' claims that the base closing process had vio- lated the specific procedural mandates of the statute would be "the same whether or not the APA applies to presidential decisionmaking." Specter, 971 F.2d at 945.
**12
prior mandate only would be warranted if Franklin might be read as foreclosing the limited review we previously upheld. In Franklin, the Court declined only to review the President's decision under the APA. It expressly sanc- tioned judicial review of presidential decision making for consistency with the Constitution and said nothing about review of presidential action for consistency with the statute authorizing such action. In concluding in our earlier opinion that judicial review was available here, we relied upon the existence of judicial review prior to the adoption of the APA and upon various authorities in- dicating that the judicial review provisions of the APA represent a "codification of the common law." Id. at 945. While we there described this extra-APA review as com- mon law review, our reexamination of the relevant author- ities in light of Franklin has persuaded us that there is a constitutional aspect to the exercise of judicial review in this case -- an aspect grounded in the separation of pow- ers doctrine. As a result, we believe Franklin provides affirmative support for judicial review in this case. We would, in any event, **13 be reluctant to infer from Franklin's silence on the matter a prohibition of judicial review where presidential action is alleged to be in con- flict with non-discretionary mandates of the authorizing statute because the Court had no occasion to consider that issue in Franklin. There, the only non-constitutional alle- gation made by (and, indeed, available to) plaintiffs was that the proposed action represented an abuse of discretion
(i.e., arbitrary and capricious conduct) prohibited by the APA. Here, by contrast, plaintiffs allege that the process underlying the decision to close the Shipyard violated specific nondiscretionary provisions of
995 F.2d 404, *409; 1993 U.S. App. LEXIS 11488, **13
Page 7
*409 the Base Closing Act -- the only authority ad- vanced by the defendants for the closing.
We read Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1952), to stand for the proposition that HN2 the President must have constitutional or statutory authority for whatever action he wishes to take and that judicial review is avail- able to determine whether such authority exists. See id. at 585; see also United States v. Noonan, 906 F.2d 952,
955 (3d Cir. 1990) **14 ("It is well established under our tripartite constitutional system of government that the President stands under the law. The President's power, if any . . . must stem from an act of Congress or from the Constitution itself." (citing Youngstown Steel)); National Treasury Employees Union v. Nixon, 160 U.S. App. D.C.
321, 492 F.2d 587, 611 (D.C. Cir. 1974) ("'Youngstown represents the Judicial power, by compulsory process or otherwise, to prohibit the Executive from engaging in actions contrary to law. Youngstown represents the prin- ciple that no man, cabinet minister, or Chief Executive himself, is above the law.'" (quoting Nixon v. Sirica, 159
U.S. App. D.C. 58, 487 F.2d 700, 793 (Wilkey, J., dissent- ing)). Youngstown also stands for the proposition that
HN3 it is the constitutionally-mandated separation of powers which requires the President to remain within the scope of his legal authority. See, e.g., National Treasury Employees Union, 492 F.2d at 604 ("The judicial branch of the Federal Government has the constitutional duty of requiring the executive branch to remain within the limits stated by the legislative branch."); **15 see also U.S. Const. Art. II, § 3 ("The President shall take care that the laws be faithfully executed . . . ."). Indeed, we note that the Youngstown Court, in invalidating the President's action, explicitly noted that the President was statutorily authorized to seize property under certain conditions, but that those conditions were not met in the case before it. Youngstown, 343 U.S. at 585-86. Because a failure by the President to remain within statutorily mandated limits exceeds, in this context as well as that of Youngstown, not only the President's statutory authority, but his constitu- tional authority as well, our review of whether presidential action has remained within statutory limits may properly be characterized as a form of constitutional review. That such constitutional review exists is explicitly reaffirmed by Franklin. 112 S. Ct. at 2776 (citing Youngstown).
The plaintiffs in this case, unlike the plaintiffs in Franklin, do not ask the court to review under the APA for arbitrary and capricious conduct. Rather, they allege that closing the Shipyard would be inconsistent with specific, nondiscretionary **16 directives of the Base Closing Act -- the only authority advanced by the defendants for their proposed action. HN4 The President, no less than his lieutenants, must have statutory or constitutional au- thority for his actions and where, as here, the only avail- able authority has been expressly confined by Congress to action based on a particular type of process, judicial review exists to determine whether that process has been followed. n5
n5 In holding here that the President must have at his disposal information collected in accordance with statutory procedures, we do not hold that the district court may review the entirely distinct ques- tion of whether and to what extent the President uses the information. As we previously held, the Act commits that decision to the President's discre- tion. Specter, 971 F.2d at 946.
IV.
The defendants insist that there can be no judicial re- view in this case because such review is barred by the doctrine of sovereign immunity. We disagree.
We first note that **17 limited judicial review of federal action has long been available at common law:
Where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the busi- ness which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ul- tra vires his authority and therefore may be made the object of specific relief.
Larson v. Domestic and Foreign Commerce Corp., 337
U.S. 682, 689, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949); see also Youngstown Steet,
995 F.2d 404, *410; 1993 U.S. App. LEXIS 11488, **17
Page 8
*410 343 U.S. at 585-87. Although this principle is lim- ited, see, e.g., Larson, 337 U.S. at 690 ("A claim of error in the exercise of delegated power is . . . not sufficient."), n6 as counsel for the defendants conceded at oral argu- ment, and as both Youngstown Steel and Franklin make clear, judicial review of the constitutionality of executive action is not barred by the doctrine of sovereign immu- nity. Thus, HN5 where, as here, plaintiffs allege that presidential action has failed to comply with the manda- tory procedural **18 requirements of the only statute authorizing such action and has thereby violated the con- stitutionally-mandated separation of powers, sovereign immunity concerns do not apply.
n6 Larson was essentially a breach of contract action against an agent of the federal government. The Court rejected plaintiff's contention that the agent's breach was ultra vires and thereby stripped of sovereign immunity protection; instead, it held that because the agent was authorized to "adminis- ter a general sales program encompassing the nego- tiation of contracts, the shipment of goods and the receipt of payment," his actions were within del- egated authority and were therefore protected by sovereign immunity: " HN6 If the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they are tortious under general law, if they would be regarded as the ac- tions of a private principal under the normal rules of agency." Larson, 337 U.S. at 695.
**19
Even if the inapplicablity of sovereign immunity in this context were not clear from the doctrine enunciated in Larson and Youngstown Steel, however, we believe this case would still be controlled by the express waiver found in the APA:
HN7
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
5 U.S.C. § 702 (1988).
Here, plaintiffs do not seek monetary damages; they seek injunctive relief. n7 Plaintiffs also state a claim that the Secretary of the Navy, the Secretary of Defense, and the Base Closure Commission have acted under color of legal authority in violation of the Act and that the Secretary of Defense, similarly acting under color of legal authority, is threatening to close the Shipyard as the final step of an illegal process. This is thus a situ- ation that § 702 literally reads on. It is also a situation
**20 that precisely fits the congressional intent behind this waiver of sovereign immunity. See, e.g., H.R. Rep. No. 1656, 94th Cong., 2d Sess. 1 (1976), reprinted in
1976 U.S.C.C.A.N. 6121, 6121 ("The proposed legisla- tion would amend section 702 of title 5, U.S.C., so as to remove the defense of sovereign immunity as a bar to ju- dicial review of Federal administrative action . . . ."); id. at
9, 1976 U.S.C.C.A.N. at 6129 ("The time has now come to eliminate the sovereign immunity defense in all equi- table actions for specific relief against a Federal agency or officer acting in an official capacity."); 4 Kenneth C. Davis, Administrative Law Treatise § 23:19, at 192 (2d ed. 1984) ("The meaning of the 1976 legislation is entirely clear on its face, and that meaning is fully corroborated by the legislative history. That meaning is very simple: Sovereign immunity in suits for relief other than money damages is no longer a defense."). n8 Our cases are also clear that HN8 the waiver of sovereign immunity con- tained in § 702 is not limited to suits brought under the APA. See Johnsrud v. Carter, 620 F.2d 29, 31 (3d Cir.
1980); Jaffee v. United States, 592 F.2d 712 **21 (3d Cir.), cert. denied, 441 U.S. 961, 60 L. Ed. 2d 1066, 99 S. Ct. 2406 (1979); see also 4 Davis, supra,
n7 Effective relief can be granted by an order prohibiting the Secretary of Defense from closing the Shipyard.
n8 The legislative history of the immunity waiver also indicates congressional recognition of the ultra vires doctrine and the difficulties and com- plexities involved in its application; it evinces an intent to eliminate the need for "wispy fictions" in favor of a clear waiver. See H.R. Rep. No. 1656, supra, at 5-7, 1976 U.S.C.C.A.N. at 6125-28.
§ 23:19, at 195 ("The abolition of sovereign immunity in § 702 is not limited to suits 'under the Administrative Procedure Act'; the abolition applies to every 'action in a court of the United States
995 F.2d 404, *411; 1993 U.S. App. LEXIS 11488, **21
Page 9
*411 seeking relief other than money damages . . .' No words of § 702 and no words of the legislative history provide any restriction to suits 'under' the APA.").
The only argument we can conceive against the ap- plicability of § 702 here is that the **22 President was involved at one stage of the process that led to the allegedly illegal action that will injure plaintiffs. While, as we earlier concluded, the nature of the role assigned to the President by the Act makes his decisionmaking unreviewable, the fact that he played a role provides no justification for holding the process and the final exec- utive action immune from review for compliance with the mandatory procedural requirements of the Act. While suits, like Franklin, seeking to secure presidential action or forbearance pose special problems, those problems are not presented in the situation before us. n9 As Justice Scalia explained in his opinion in Franklin, the fact that the federal courts "cannot direct the President to take a specified executive act" does not
n9 Indeed, given Franklin's holding that the President is not an "agency" within the meaning of the APA, the waiver of sovereign immunity con- tained in § 702 may not apply to suits against the President. Nevertheless, this only potentially cre- ates a barrier to suit where the President is named as a defendant and/or relief can only be effective if directed at the President--a situation not present here. While we do not regard Franklin as turning on sovereign immunity doctrine, we note that § 702 might not waive sovereign immunity in the situation there before the Court. As the Franklin Court recog- nized, "it is the President's personal transmittal of the report to Congress that settles the reapportion- ment." Franklin, 112 S. Ct. at 2775. In Franklin, it appears that the only effective relief was relief that would require the President's forbearance. See Franklin, 112 S. Ct. at 2790 (Scalia, J., concur- ring) ("We cannot remedy appellees' asserted in- jury without ordering declaratory or injunctive re- lief against appellant President Bush.").
**23
in any way suggest that Presidential action is unreviewable. HN9 Review of the legal- ity of Presidential action can ordinarily be obtained in a suit seeking to enjoin the offi- cers who attempt to enforce the President's
directive, see, e.g., Youngstown Sheet & Tube
Co v. Sawyer, 343 U.S. 579, 72 S. Ct. 863,
96 L. Ed. 1153 (1952); Panama Refinancing
Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241,
79 L. Ed. 446 (1935)--just as unlawful leg- islative action can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see, e.g., Powell v. McCormack, 395 U.S. 486, 503-506, 89
S. Ct. 1944, 1954-1956; 23 L. Ed. 2d 491
(1969); Dombrowski v. Eastland, 387 U.S.
82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967); Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881), but by enjoining those con- gressional (or executive) agents who carry out Congress's directive.
Franklin, 112 S. Ct. at 2790 **24 (Scalia, J., concur- ring).
V.
Accordingly, we conclude that nothing in Franklin suggests that our prior approach to this case was incor- rect. We reaffirm our prior opinion and we will remand to the district court for further proceedings consistent there- with. In light of the objectives of the Act discussed in our prior opinion, the district court should conduct those proceedings as expeditiously as possible.
DISSENTBY: ALITO
DISSENT: Alito, Circuit Judge, dissenting.
The majority rests its decision on arguments that are not properly before us, since the plaintiff-appellants did not raise them either before or after remand from the Supreme Court. Moreover, I believe that the majority's arguments are wrong on the merits and may have unfor- tunate future implications. I therefore respectfully dissent.
I.
When this case was initially before us, the ma- jority held that the closing of the Philadelphia Naval Shipyard was subject to judicial review to determine whether certain procedural requirements of the Defense Base Closure and Realignment Act of 1990 had been sat- isfied. Specter v. Garrett, 971 F.2d 936 (3d Cir. 1992). The Supreme Court subsequently decided Franklin v. Massachusetts, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992),
**25 which concerned, among other things, whether the
Administrative Procedure Act authorized review
995 F.2d 404, *412; 1993 U.S. App. LEXIS 11488, **25
Page 10
*412 of actions taken under a statutory scheme simi- lar to that in the Defense Base Closure and Realignment Act. The Court held that the Secretary of Commerce's report to the President concerning the total population by states as revealed by the decennial census is not "fi- nal agency action" reviewable under the APA, 5 U.S.C.
§ 704, and that actions taken by the President are not subject to APA review. After handing down its decision in Franklin, the Supreme Court vacated this court's prior decision in this case and remanded for reconsideration in light of Franklin. O'Keefe v. Specter, 121 L. Ed. 2d 364,
113 S. Ct. 455 (1992). n10
n10 Neither of the arguments suggested by Franklin -- i.e., that the recommendations of the Base Closure Commission do not constitute "final agency action" under the APA and that presiden- tial action is not reviewable under the APA -- was raised by the defendants when this appeal was first before us. The defendants contend that we must nevertheless reach these issues because they are jurisdictional. Whether or not an appellate court would always be compelled to consider issues of this nature even if they are not raised by the parties, I believe it is appropriate for us to reach them here. If we refused to reach these issues now, the case would be remanded, and the defendants could then raise them before the district court. Under these cir- cumstances, our refusal to entertain these issues at the present time might further delay the expeditious disposition of this case.
**26
On remand, the plaintiffs vigorously contended that the statutory scheme in Franklin is materially different from the scheme involved here and that Franklin there- fore does not bar review under the APA. The plaintiffs did not argue, as the court now holds, that they were en- titled to non-APA review based on either common law or separation of powers principles. Nor had the plain- tiffs advanced either of those theories when this case was
initially before us or, as far as I can determine, when the case was in the district court. The majority, however, chooses to sidestep the APA argument that the plaintiffs have pressed. Instead, the majority grounds its decision on the common law and separation of powers arguments that it has devised and injected into this case.
I cannot endorse this approach. I would address the argument that the plaintiffs have raised and that the parties have briefed -- i.e., whether, despite Franklin, the closing of the Shipyard is reviewable under the APA. The First Circuit recently considered Franklin's effect on judicial review under the Defense Base Closure and Realignment Act. Cohen v. Rice, 92-2427, 1993 WL 131914 **27
(1st Cir. May 3, 1993). The plaintiffs in that case alleged that the process had been tainted by "faulty procedures, e.g., failing to hold public hearings and failing to pro- vide information to Congress and the GAO." Id. at * 6. The First Circuit held that under Franklin APA review for these claims was unavailable. Because I agree that the statutory scheme at issue here is not materially distin- guishable from the scheme in Franklin, I would hold that APA review is unavailable. And I would go no further.
II.
Since the majority has gone further, however, and since the majority's analysis may affect future cases, I will explain briefly why I believe the majority's analysis is flawed.
The majority opinion, as I understand it, reasons as fol- lows. First, "the President must have constitutional or statutory authority for whatever action he wishes to take." Majority Typescript at 12. Second, judicial review is avail- able outside the APA to determine whether presidential action violates or exceeds that authority. Id. at 12-14. Third, under the Base Closure and Realignment Act, the President lacks statutory authority to approve or imple- ment the closing of a base if the Base Closure **28 Commission's recommendation regarding that base was tainted by violations of the Act's procedural requirements. n11 Therefore, since the plaintiffs in this
995 F.2d 404, *413; 1993 U.S. App. LEXIS 11488, **28
Page 11
*413 case allege that such procedural violations oc- curred with respect to the Philadelphia Naval Shipyard, the President's approval of the closing of the Shipyard and/or the Secretary of Defense's implementation of the closing are subject to non-APA judicial review.
n11 The majority puts it as follows (majority typescript at 8), quoting Specter v. Garrett, 971
F.2d 936, 947 (3d Cir. 1992)):
Congress intended that domestic bases be closed only pursuant to an exercise of presidential discretion informed by recommendations of the nation's mil- itary establishment and an indepen- dent commission based on a common and disclosed (1) appraisal of military need, (2) set of criteria for closing, and
(3) data base.
The majority later adds that the President's author- ity under the Base Closure and Realignment Act to approve or order the closing of a base "has been expressly confined by Congress to action based on a particular type of process." Majority type- script at 13. In addition, the majority states that the President's subordinates are "threatening to close the Shipyard as the final step of an illegal process." Majority typescript at 15.
**29
Putting aside whatever else may be said about this analysis, it seems plain to me that its third step is in- correct, for the Base Closure and Realignment Act does not limit the President's authority in the way the major- ity suggests. The Act does not require the President to reject the Commission's package of recommendations if the recommendations regarding one or more bases are tainted by procedural violations. Nor does the Act re- quire or authorize the President or his subordinates to refrain from carrying through with the closing or realign- ment of such bases following presidential approval of the Commission's package and the expiration of the period for congressional disapproval.
The President's powers and responsibilities under the Base Closure and Realignment Act are clearly set out in Section 2903(e). In brief, the President, after receiving the Commission's package of recommendations by July
1 of the year in question, must decide whether to accept the entire package or return it to the Commission. If, as was the case in 1991, the President decides to accept the package, he must transmit a report containing his approval to the Commission as well as to Congress. He must also
transmit **30 a copy of the Commission's recommen- dations and a certification of his approval to Congress. Section 2903(e)(1), (2). Congress then has 45 days to dis- approve the package (Section 2904(b)), and if, as was the case in 1991, Congress does not disapprove, the Secretary of Defense "shall" close and realign bases in accordance with the package. Section 2904(a).
Nothing in these provisions suggests that the President, upon receiving the Commission's recommen- dations, must determine whether any procedural viola- tions occurred at any prior stage of the statutory process. Nothing in these provisions suggests that the President must reject the Commission's package of recommenda- tions if such procedural violations come to his attention. Nothing in these provisions suggests that the President must base his approval or disapproval of the Commission's recommendations exclusively on the record of the pro- ceedings before the Commission. Nothing in these provi- sions suggests that the President, if he wishes to approve the Commission's recommendations, must do so for the same reasons as the Commission. And nothing in these provisions suggests that the President or the Secretary of Defense must or even can **31 refuse to carry out a base closing or realignment contained in an approved package of recommendations on the ground that the Commission's recommendation regarding the affected base was tainted by prior procedural irregularities.
Under the plain language of the Base Closure and Realignment Act, the President's sole responsibility, upon receiving a package of recommendations from the Commission, is to decide within a very short period whether, based on whatever facts and criteria he deems ap- propriate, the entire package of recommendations should be accepted or whether the recommendations should be returned to the Commission. After the President has ap- proved a package of recommendations and the time for congressional disapproval has expired, the sole respon- sibility of the Secretary of Defense is to carry out the indicated closings and realignments. In the case before us, this is precisely what the President did and what the Secretary of Defense wishes to do, and therefore I see no possible ground for arguing that the Executive violated any statutory command or exceeded its statutory author- ity at these stages of the base closure and realignment process. n12
n12 As I noted in my prior dissent (971 F.2d at 956 n.2), the plaintiffs are not challenging the propriety of anything that occurred after the trans- mission of the Commission's recommendations to the President. Rather, their claims relate to actions taken at earlier stages. But as the majority itself has recognized, actions taken prior to the end of the
995 F.2d 404, *413; 1993 U.S. App. LEXIS 11488, **31
Page 12
process required by the Act had no adverse impact on the plaintiffs and thus are not subject to judicial review under any theory. Majority typescript at 7 & n.2.
**32
995 F.2d 404, *414; 1993 U.S. App. LEXIS 11488, **32
Page 13
*414 The Base Closure and Realignment Act calls for three cycles of recommended closures and realignments-- in 1991, 1993, and 1995. In this case, we are still consider- ing a closure that was recommended and approved in the first cycle. In the meantime, the second cycle is already well underway. When Congress enacted the Base Closure and Realignment Act, it knew that unnecessary military
installations can waste enormous sums of money and that litigation can effectively delay closings and realignments for years. In my view, Congress clearly wanted to put an end to these delays, but our court, by allowing judicial review of base closings and realignments, is frustrating the implementation of Congress's intent.
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