Title Specter v. Garrett
Date 1993
By
Subject Other\Concurring & Dissenting
Contents
Page 1
54 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
971 F.2d 936; 1992 U.S. App. LEXIS 6969
January 28, 1992, Argued
April 17, 1992, Filed
SUBSEQUENT HISTORY: Petition for Rehearing In Banc Denied May 20, 1992, Reported at 1992 U.S. App. LEXIS 11651.
PRIOR HISTORY: **1 On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 91-4322)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellants, shipyard em- ployees, their unions, members of Congress, three states and their officials, and one city, challenged the judgment of the United States District Court for the Eastern District
of Pennsylvania, which dismissed appellants' action to enjoin the closure of a Philadelphia naval shipyard.
OVERVIEW: Appellee Secretary of Defense recom- mended the closure of a naval shipyard in Philadelphia pursuant to its authority granted by the Base Closure and Realignment Act of 1990 (Act). Appellants, shipyard em- ployees, their unions, members of Congress, three states and their officials, and one city, filed complaints to enjoin enforcement of the decision, alleging violations of var- ious provisions of the Act. The district court dismissed the complaint, finding that judicial review was precluded. On appeal, the court first found that all appellants had standing because of the interest of appellant employees
971 F.2d 936, *; 1992 U.S. App. LEXIS 6969, **1
Page 2
and that there was no clear evidence of a congressional intent in § 2905 of the Act to preclude all judicial review. It concluded, however, that the presumption favoring ju- dicial review was rebutted with respect to a majority of plaintiffs' claims by the fact that the issues were judicially unmanageable. Specifically, the claims asking the court to substitute its political and military judgment for that of appellees were not reviewable. However, because there were issues that the judiciary was entirely competent to address, the court remanded the case.
OUTCOME: The court reversed the judgment of the district court that dismissed action by appellants, ship- yard employees, their union, members of Congress, three states and their officials, and one city, to enjoin enforce- ment of a decision to close a naval shipyard. It held that appellants had standing and that though the presumption favoring judicial review was rebutted for the majority of the claims, there were issues that were subject to judicial review.
LexisNexis(R) Headnotes
Military & Veterans Law > Military Justice
HN1 The Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510, § 2901(b), 104 Stat. 1808
(1990), which governs three rounds of base closures (in
1991, 1993, and 1995), retains the basic features of the Base Closure and Realignment Act of 1988. An indepen- dent Commission, to be appointed by the President with the advice and consent of the Senate, is to meet in each of the three years. § 2902(a), (e). The Secretary of Defense must provide Congress and the Commission with a six- year "force structure plan" that assesses national secu- rity threats and the force structure needed to meet them.
§ 2903(a)(1)-(2). The Act also requires the Secretary to formulate criteria for use in identifying bases for closure or realignment; these criteria must be published in the Federal Register for public notice and comment, and they must be presented to Congress which evaluates and may disapprove them. § 2903(b).
Administrative Law > Judicial Review > Reviewability > Final Order Requirement
HN2 A premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party. Civil Procedure > Justiciability > Standing
HN3 A person who seeks standing to challenge agency action must show (1) injury in fact and (2) that his inter- ests are arguably within the zone of interests intended to be protected by the statute or constitutional provisions on which the claim is based. A showing of injury in fact is
required by the constitutional limitation of federal court jurisdiction to actual cases or controversies. The injury must be concrete and one which can be addressed by the court should the plaintiff prevail on the merits. The test is intended to ensure that complainants have a personal stake in the outcome of the proceedings.
Civil Procedure > Justiciability > Standing
HN4 To satisfy the zone of interests requirement, a plaintiff must establish that the injury he complains of, his aggrievement, or the adverse effect upon him, falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal ba- sis of his complaint. The zone of interest test is a guide for deciding whether, in view of Congress's evident in- tent to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a par- ticular agency decision. In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.
Administrative Law > Judicial Review > Reviewability > Preclusion
Administrative Law > Judicial Review > Standards of
Review > Arbitrary & Capricious Review
HN5 Section 702 of the Administrative Procedure Act
(APA), 5 U.S.C.S. § 702, provides that any person ag- grieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof. The APA stip- ulates that the reviewing court will set aside agency action found to be arbitrary and capricious, an abuse of discre- tion, or otherwise not in accordance with law; contrary to constitutional right; or without observance of the proce- dure required by law. 5 U.S.C.S. § 706(2). Review under the APA is available, however, only to the extent that statutes do not preclude judicial review and the agency action is not committed to agency discretion by law. 5
U.S.C.S. § 701(a).
Administrative Law > Judicial Review > Reviewability > Preclusion
HN6 Litigants making a contention that a statute pre- cludes judicial review of an agency determination have a very substantial burden to shoulder. The court begins with the strong presumption that Congress intends judi- cial review of administrative action. Judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.
971 F.2d 936, *; 1992 U.S. App. LEXIS 6969, **1
Page 3
Administrative Law > Judicial Review > Reviewability > Preclusion
HN7 Because the very essence of civil liberty is im- plicated, courts will presume the availability of judicial review unless there is clear and convincing evidence of a contrary legislative intent. This clear and convincing standard is not meant in the strict evidentiary sense, but rather as a useful reminder to courts that, where sub- stantial doubt about the congressional intent exists, the general presumption favoring judicial review of adminis- trative action is controlling.
Administrative Law > Judicial Review > Reviewability > Preclusion
HN8 The second category of agency action not subject to judicial review under the Administrative Procedures Act is that which is committed to agency discretion by law. 5 U.S.C.S. § 701(a)(2). There is a strong presump- tion favoring such review applies here as well, and review is available unless it is clear that a reviewing court could not conduct a meaningful review.
Administrative Law > Judicial Review > Reviewability
Administrative Law > Separation & Delegation of Power
> Executive Controls
HN9 Executive action under legislatively delegated au- thority is always subject to check by the terms of the legislation that authorized it; and if that authority is ex- ceeded it is open to judicial review.
Administrative Law > Judicial Review > Reviewability > Preclusion
HN10 Judicial review is foreclosed only to the extent that statutes preclude such review and only to the extent that agency action is committed to agency discretion by law. 5 U.S.C.S. § 701(a).
Administrative Law > Judicial Review > Reviewability > Preclusion
HN11 Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statu- tory scheme, its objectives, its legislative history, and the nature of the administrative action involved. Administrative Law > Agency Adjudication > Hearings Administrative Law > Agency Rulemaking > Formal Rulemaking
HN12 The rulemaking, 5 U.S.C.S. § 553, and adjudica- tion, 5 U.S.C.S. § 554, provisions of the Administrative Procedures Act, 5 U.S.C.S. § 551 et seq., contain explicit exemptions for the conduct of military or foreign affairs functions. An action falling within this exception, as the decision to close and realign bases surely does, is immune from the provisions of the APA dealing with hearings, 5
U.S.C.S. § 556, and final agency decisions, 5 U.S.C.S. §
557.
Administrative Law > Judicial Review > Reviewability > Preclusion
HN13 Specific actions which are not be subject to ju- dicial review include the issuance of a force structure plan under 10 U.S.C.S. § 2903(a), the issuance of selec- tion criteria under § 2803(b), the Secretary of Defense's recommendation of closures and realignments of military installations under § 2803(d), the decision of the President under § 2803(e), and the Secretary's actions to carry out the recommendations of the Commission under §§ 2904 and 2905.
Military & Veterans Law > Military Justice
HN14 The Secretary of Defense is required by the Base Closure and Realignment Act (a) to develop a force struc- ture plan forecasting military need, (b) to identify crite- ria to be applied in determining which bases should and should not remain to meet that need, and (c) to formulate specific recommendations by applying that plan and those criteria to the current deployment of military resources throughout the country. 10 U.S.C.S. § 2903(a)-(c). The Act makes no reference to the Secretary of the Navy and places no restrictions on the Secretary of Defense with respect to his sources of data or advice.
Administrative Law > Judicial Review > Reviewability > Questions of Law
HN15 The political question doctrine excludes from ju- dicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.
Administrative Law > Judicial Review > Reviewability > Questions of Law
HN16 While it is not the role of the courts to disturb policy decisions of the political branches, the question of whether an agency has acted in accordance with a statute is appropriate for judicial review.
Constitutional Law > Substantive Due Process > Scope of Protection
HN17 Protectable property interests can arise from a statutory scheme which creates legitimate claims of en- titlement to particular benefits. Even where an intent to bestow a benefit on private individuals is clear, however, a statutory requirement that certain procedures be observed before a benefit can be withdrawn does not in itself create a protected property interest.
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,
971 F.2d 936, *; 1992 U.S. App. LEXIS 6969, **1
Page 4
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 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, Room 1520, Municipal Services Building, Philadelphia, PA 19102-1692, **2 Attorney for the City of Philadelphia.
Stuart M. Gerson, Assistant Attorney General, Michael M. Baylson, United States Attorney, Douglas N. Letter, Scott R. McIntosh (Argued), 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:
*939 OPINION OF THE COURT
STAPLETON, Circuit Judge: I.
This is an action to enjoin the Secretary of Defense from carrying out a decision to close the Philadelphia Naval Shipyard ("Shipyard"). The plaintiffs-appellants
("plaintiffs") are Shipyard workers; their unions; mem- bers of Congress from Pennsylvania and New Jersey; the States of Pennsylvania, New Jersey, and Delaware, and officials of those States; and the City of Philadelphia. The defendants-appellees ("defendants") are the Secretary of Defense, the Secretary of the Navy, and the indepen- dent Defense Base Closure and Realignment Commission
("Commission") and its members.
The Defense Base Closure and Realignment Act of
1990 ("the Act") is the latest in a series of statutes en- acted by Congress during the past fifteen **3 years to regulate the process by which domestic military bases are closed and realigned. In 1977, Congress passed legisla- tion allowing the Secretary of Defense to close a particular base only after (1) notifying the Committees on Armed Services of the Senate and House of Representatives of the bases selected for closure; (2) submitting to these Committees an evaluation of the various consequences of the closure (including the local economic, environmental, budgetary and strategic consequences); and (3) deferring action for at least sixty days, during which time Congress could act legislatively to halt the closure or realignment.
10 U.S.C. § 2687(b) (Supp. IV 1980). The statute also re- quired the Secretary to comply with the requirements of the National Environmental Policy Act of 1969 ("NEPA"). Id.
Eleven years later, Congress enacted the Base Closure and Realignment Act of 1988, the immediate predeces- sor of the 1990 Act. Pub. L. No. 100-526, §§ 201-209,
102 Stat. 2623, 2627-34 (1988). Under the 1988 Act, the Secretary of Defense could no longer unilaterally choose bases for closure. Instead, that Act vested a new indepen- dent commission with the power to recommend bases for closure. **4 Id. §§ 201(1), 203(b)(1-2), 102 Stat. at
2627-28. These recommendations were to be presented to the Secretary of Defense for approval or disapproval in their entirety. Id. §§ 201(1), 202(a)(1), 102 Stat. at
2627. If the Secretary approved the recommendations, the 1988 Act gave Congress 45 days within which to dis- approve them. Id. § 202(b), 102 Stat. at 2627. The 1988
Act explicitly exempted the base closure decisions of the Commission and the Secretary from the requirements of NEPA. Id. § 204(c)(1), 102 Stat. at 2630. The legislative history of the 1988 Act indicates that Congress dropped the NEPA requirements in an effort to avoid delays. n1
n1 See H.R. Conf. Rep. No. 1071, 100th Cong.,
2d Sess. 23 (1988), reprinted in 1988 U.S.C.C.A.N.
3395, 3403 ("the conferees recognize that NEPA has been used in some cases to delay and ultimately frustrate base closures, and support the narrowing of its applicability for closures and realignments under this act. However, they also believe that the NEPA goals of public disclosure and clear identi- fication of potential adverse impacts . . . should be protected").
**5
The 1988 Act was not a permanent mechanism for closing and realigning military installations, but was rather a one-time exception to the process set forth in the 1977 legislation. In January 1990, in actions gov-
971 F.2d 936, *939; 1992 U.S. App. LEXIS 6969, **5
Page 5
erned only by the 1977 Act, the Secretary of Defense pro- posed another round of closures. Members of Congress voiced concern about the Secretary's decisionmaking hav-
ing "raised suspicions about the integrity of the base clo- sure selection
971 F.2d 936, *940; 1992 U.S. App. LEXIS 6969, **5
Page 6
*940 process." H.R. Conf. Rep. No. 923, 101st Cong., 2d Sess. 705 (1990) ("House Conference Report"), reprinted in 1990 U.S.C.C.A.N. 3110, 3257. Moreover, House conferees later noted that base closures and re- alignments under the 1977 legislation took "a consider- able period of time and involved numerous opportunities for challenges in court." House Conference Report at 705,
1990 U.S.C.C.A.N. at 3257.
Congress subsequently enacted the Defense Base Closure and Realignment Act of 1990. Section 2901 of this Act declares that the law's purpose "is to provide a fair process that will result in the timely closure and realign- ment of military installations inside the United States." Pub. L. No. 101-510, § 2901(b), 104 Stat. 1808 (1990). n2 HN1 The Act, which **6 governs three rounds of base closures (in 1991, 1993, and 1995), retains the basic features of the 1988 Act. An independent Commission, to be appointed by the President with the advice and consent of the Senate, is to meet in each of the three years. § 2902(a), (e). The Secretary of Defense must pro- vide Congress and the Commission with a six-year "force structure plan" that assesses national security threats and the force structure needed to meet them. § 2903(a)(1)-(2). The Act also requires the Secretary to formulate criteria for use in identifying bases for closure or realignment; these criteria must be published in the Federal Register for public notice and comment, and they must be pre- sented to Congress which evaluates and may disapprove them. § 2903(b).
n2 In the interest of brevity, citations to the Act will hereinafter be limited to the section number only.
For the first round of base closures, the Act requires the Secretary to recommend base closures and realign- ments by April 15, 1991, based on the force struc- ture **7 plan and final criteria. § 2903(c)(1). The Commission is then charged with reviewing these rec- ommendations and with the preparation of a report for the President containing its assessment of the Secretary's
proposals and its own recommendations for base clo- sures. § 2903(d)(2). The Act requires the Commission to hold public hearings on the Secretary's recommen- dations, § 2903(d)(1), and authorizes the Commission to change any of the Secretary's recommendations if they "deviate substantially" from the force structure plan and the final criteria. § 2903(d)(2)(B). In its report to the President, the Commission must justify any de- parture from the Secretary's list of recommendations. §
2903(d)(3). The Commission is to be assisted in its task by the General Accounting Office ("GAO"), to which the Secretary must give all information used in making his initial recommendations, § 2903(c)(4), and which must report on the Secretary's recommendations to Congress and the Commission, § 2903(d)(5).
Once the Commission has made its recommendations, the Act requires that they be presented to the President for his review. § 2903(e). The President may approve or disapprove the Commission's recommendations **8 in whole or in part, and must transmit his determination to the Commission and Congress. § 2903(e)(2)-(3). If the President approves the Commission's recommendations, Congress has 45 days from the date of this approval to pass a joint resolution disapproving of the Commission's recommendations in their entirety. §§ 2904(b), 2908. If such a resolution is enacted, the Secretary of Defense may not close the bases approved for closure by the President.
§ 2904(b). If the President disapproves the Commission's recommendations in whole or in part, he returns them to the Commission. The Commission reconsiders its rec- ommendation in light of the President's actions and re- submits a revised list for the President's consideration. §
2903(e)(3). If the President does not transmit to Congress an approved list of recommendations by September 1 of any year in which the Commission has transmitted rec- ommendations to the President, the base closure process for that year is terminated. § 2903(e)(5).
The Act contains several important provisions which were absent from predecessor base closure statutes, in- cluding, inter alia, the requirement that the Commission hold
971 F.2d 936, *941; 1992 U.S. App. LEXIS 6969, **8
Page 7
*941 public hearings on the Secretary **9 of Defense's closure recommendations, § 2903(d)(1); the requirement that all meetings of the Commission be open to the public, except where classified information is being discussed, § 2902(e)(2)(A); the requirement that a force structure plan be prepared, § 2903(a); the requirement that final criteria be developed, published and submit- ted for congressional consideration, § 2903(b)-(c); the requirement that the Secretary consider all military in- stallations "equally without regard to whether or not the installation has been previously considered or proposed for realignment," § 2903(c)(3); and the requirement that the Secretary transmit to the Comptroller General "all information used by the Department in making its rec- ommendations to the Commission for closures and re- alignments" so that the GAO can analyze the Secretary's recommendations and aid the Commission in its deliber- ations, §§ 2903(c)(4), 2903(d)(5)(A)-(B).
In April 1991, the Secretary of Defense recommended the closure or realignment of a long list of domes- tic bases including twelve naval facilities. See 56 Fed. Reg. 15184 (April 15, 1991). Among the naval facili- ties recommended for closure was the Shipyard. **10 The Commission subsequently held public hearings in Washington, D.C., and Philadelphia. During these hear- ings the Commission heard testimony from Department of Defense officials, legislators, and other experts. The
Commissioners visited the major facilities recommended for closure, including the Shipyard. The GAO forwarded to the Commission a report on the Secretary's recommen- dations and assisted the Commission in its analysis of the Secretary's recommendations.
The Commission ultimately recommended that two of the naval facilities that the Secretary recommended for closure remain open, but concurred with the Secretary's recommendation that the Shipyard be closed. In all, the Commission recommended to the President that 34 in- stallations be closed and 48 realigned. 1991 Defense Base Closure and Realignment Report to the President at vii- viii. President Bush approved all of the recommenda- tions of the Commission, including the closure of the Shipyard. Following the President's approval, the House and Senate Armed Services Committees held hearings on the Commission's recommendations. On July 30, 1991, the House rejected a proposed resolution of disapproval of the Commission's recommendations **11 by a vote of 364-60, thus authorizing the Secretary to proceed with the closures and realignments. 137 Cong. Rec. H6006
(daily ed. July 30, 1991).
Plaintiffs n3 filed their original complaint in the dis- trict court on July 8, 1991, and an amended complaint on July 19, 1991. n4 In the amended complaint, plaintiffs allege
971 F.2d 936, *942; 1992 U.S. App. LEXIS 6969, **11
Page 8
*942 that defendants n5 violated various provisions of the Act.
n3 Plaintiffs include United States Senators Arlen Specter and Harris Wofford of Pennsylvania, Bill Bradley and Frank R. Lautenberg of New Jersey; Governors Robert P. Casey of Pennsylvania, James J. Florio of New Jersey, and Michael N. Castle of Delaware; Attorneys General Ernest D. Preate, Jr. of Pennsylvania, and Robert J. Del Tufo of New Jersey; United States Representatives Robert E. Andrews, R. Lawrence Coughlin, Peter H. Kostmayer, and Robert A. Borski; the City of Philadelphia; the International Federation of Professional and Technical Engineers, Local 3, and its President Howard J. Landry; the Metal Trades Council, Local 687 Machinists, and its President William F. Reil; and the Planners Estimators Progressman & Schedulers Union, Local No. 2, and its President Ronald Warrington.
**12
n4 Plaintiffs filed their original complaint be- fore President Bush approved the Commission's recommendations. As we shall see, judicial review is not available at this preliminary stage; neverthe- less, because the President made his decision while this suit was pending, we are not presented with a jurisdictional defect. "In this Court, HN2 a 'pre- mature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party.' Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977)
(emphasis in original)." Westinghouse Elec. Corp. v. United States, 598 F.2d 759, 766 n.22 (3d Cir.
1979) (noting that court retained jurisdiction where appeal was filed subsequent to preliminary order of Nuclear Regulatory Commission, but before is- suance of final NRC order). See also Dowling v. City of Philadelphia, 855 F.2d 136, 138 (3d Cir.
1988) (distinguishing situation where notice of ap- peal is premature under FRAP 4(a)(4)).
n5 Defendants include the Secretary of the Navy, H. Lawrence Garrett, III; the Secretary of Defense, Richard Cheney; 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, and Robert D. Stuart, Jr.
**13
To summarize briefly the allegations: In Count I plain- tiffs allege that the Secretaries of Defense and the Navy violated the Act by withholding information pertinent to the decisionmaking process, by failing to apply the final criteria and force structure plan evenhandedly to all in- stallations, and by failing to implement record-keeping and internal controls. In Count II, plaintiffs charge the Commission with violating the Act by basing its deci- sions on information supplied by the Navy but not made available to the GAO, Congress or the public, by failing to apply the final criteria and force structure plan even- handedly, and by ignoring the conclusions of the GAO. Finally in Count III, the Shipyard employee and union plaintiffs charge all defendants with violating their due process rights under the Fifth Amendment to the Federal Constitution by disregarding the procedures set forth in the Act in deciding to close the Shipyard.
Plaintiffs filed motions for a preliminary injunction and expedited discovery in July. On August 16, defen- dants filed a motion to dismiss. After a hearing on October
25, 1991, the district court issued its order dismissing the complaint with prejudice on November **14 1, 1991. The district court found that the legislative history of the Act, as well as the law's purpose to provide for timely clo- sure of military bases, indicate a clear legislative intent to preclude judicial review. Specter v. Garrett, 777 F.Supp.
1226 (E.D. Pa. 1991). As an alternative ground for its holding, the court held that this case is one which is "im- possible for the court to resolve independently without expressing lack of respect due the coordinate branches of government," id. at 5, and as a result presents a nonjus- ticiable political question. Id. at 4-7. n6 Plaintiffs timely filed a notice of appeal.
n6 In addition to the two issues addressed by the district court, the appellees argued that none of the appellants had standing to bring the suit, and that the unions' due process claim failed to state a valid constitutional claim. The district court did not reach these issues.
II.
The threshold issue in this appeal is one of stand- ing. Defendants assert that none of the plaintiffs **15 have standing to litigate the issues raised in the complaint. Because the position of each of the plaintiffs is the same and because we conclude that the Shipyard employees and their union have standing, we need not address the standing of the remaining plaintiffs. See, e.g., City of Los Angeles v. National Highway Traffic Safety Admin., 912
F.2d 478, 485 (D.C. Cir. 1990).
971 F.2d 936, *942; 1992 U.S. App. LEXIS 6969, **15
Page 9
HN3 A person who seeks standing to challenge agency action must show (1) injury in fact and (2) that his interests are arguably within the zone of interests in- tended to be protected by the statute or constitutional provisions on which the claim is based. Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S.
150, 152-53, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). A showing of injury in fact is required by the constitutional limitation of federal court jurisdiction to actual cases or controversies. Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 37, 48 L.Ed.2d 450, 96 S.Ct. 1917 (1976).
The injury must be concrete and one which can be ad- dressed by the court should the plaintiff prevail on the merits. Id. at 37-38. This test is intended to ensure that complainants have a "personal **16 stake" in the out- come of the proceedings. Id.
There can be no doubt that Shipyard employees have a personal stake in these proceedings. If the shipyard is closed, their jobs will be lost. If they prevail on their claim, it is within the power of the district court to grant effective relief.
971 F.2d 936, *943; 1992 U.S. App. LEXIS 6969, **16
Page 10
*943 Thus, the Shipyard employees meet the injury in fact requirement. HN4 To satisfy the zone of inter- ests requirement, a plaintiff must "establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis of his complaint." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 3186, 111
L. Ed. 2d 695 (1990) (emphasis in original). As explained by the Supreme Court,
The "zone of interest" test is a guide for deciding whether, in view of Congress' evident intent to make agency action presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency decision. In cases where the plaintiff is not it- self the subject of the contested regulatory action, the test denies a right of review if the plaintiff's **17 interests are so marginally related to or inconsistent with the pur- poses implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.
Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400,
93 L. Ed. 2d 757, 107 S. Ct. 750 (1987) (footnote omit- ted). We must thus inquire whether employees of military bases were within the zone of interests meant to be pro- tected by the Act. See Air Courier Conference of Am. v. American Postal Workers Union, 112 L. Ed. 2d 1125, 498
U.S. , 111 S. Ct. 913, 918 (1991).
The legislative history of the Act demonstrates Congress' sensitivity to the impact of a base closing on the employees of the base and the community in which they live. Because of this sensitivity, Congress sought to ensure that the interest of the employees and their communities would be heard and that the process would be perceived by them as fair. To further this objective, Congress provided for opportunities for public hearings and comment. See, e.g., §§ 2903(d)(1) and 2903(b). It also provided **18
that, if the national interest is found to outweigh those of the local community, economic assistance would be pro- vided to assist in the period of transition. § 2905(a)(B). Finally, because of this congressional concern reflected in the Act and its legislative history, the base closing criteria established by the Secretary of Defense and left unaltered by the Congress include among the eight factors to be considered "the economic impact on communities." 56
Fed. Reg. 6374 (Feb. 15, 1991).
Given Congress' concern and the steps it took to assure consideration of the interests of employees and their com- munities, we readily conclude that individual Shipyard employees are within the zone of interest sought to be protected by the Act and that they have standing to press the issues raised in the complaint. We reach a similar conclusion with respect to the unions who are seeking to represent the interests of the members. International Union, UAW v. Broch, 477 U.S. 274 (1986).
III.
HN5 Section 702 of the Administrative Procedure Act ("APA") provides that any "person . . . aggrieved by agency action within the meaning of a relevant statute is entitled to judicial **19 review thereof." 5 U.S.C.
§ 702. The APA stipulates that the reviewing court will
"set aside agency action . . . found to be . . . arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law; . . . contrary to constitutional right .
. . ; or without observance of the procedure required by law." 5 U.S.C. § 706(2). Review under the APA is avail- able, however, only "to the extent that . . . statutes do not preclude judicial review" and the "agency action is
not committed to agency discretion by law." 5 U.S.C. §
701(a).
The defendants insist that the district court had no au- thority under the APA to conduct a review of the decision to close the Shipyard because the Act precludes judicial review. HN6 Litigants making such a contention have a very substantial burden
971 F.2d 936, *944; 1992 U.S. App. LEXIS 6969, **19
Page 11
*944 to shoulder. As the Supreme Court stated in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667,
670-71, 90 L. Ed. 2d 623, 106 S. Ct. 2133 (1987) (em- phasis added):
We begin with the strong presumption that Congress in- tends judicial review of administrative action. From the beginning "our cases have established that judicial re- view of a final agency action by an aggrieved person will not be cut **20 off unless there is persuasive reason to believe that such was the purpose of Congress." citations omitted . In Marbury v. Madison, 1 Cranch 136, 163, 5
U.S. 137, 163, 2 L. Ed. 60 (1803), a case itself involving review of executive action, Chief Justice Marshall insisted that "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws."
* * *
Committees of both Houses of Congress have endorsed this view. In undertaking the comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers that culminated in the pas- sage of the APA, the Senate Committee on the Judiciary remarked:
"Very rarely do statutes withhold judicial review. It has never been the policy of Congress to prevent the adminis- tration of its own statutes from being judicially confined to the scope of authority granted or to the objectives spec- ified. Its policy could not be otherwise, for in such a case statutes would in effect be blank checks drawn to the credit of some administrative officer or board." S. Rep. No. 752,
79th Cong., 1st Sess. 26 (1945).
**21 HN7
Because "the very essence of civil liberty" is implicated, courts will presume the availability of judicial review unless there is "clear and convincing evidence of a con-
trary legislative intent." Bowen, 476 U.S. at 671, quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 141, 18 L.Ed.2d
681, 87 S.Ct. 1507 (1967). This "clear and convincing" standard is not meant in the strict evidentiary sense, but rather as "a useful reminder to courts that, where substan- tial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative ac- tion is controlling." Block v. Community Nutrition Inst.,
467 U.S. 340, 351, 81 L. Ed. 2d 270, 104 S. Ct. 2450
(1984).
HN8 The second category of agency action not sub- ject to judicial review under the APA is that which is "com- mitted to agency discretion by law." 5 U.S.C. § 701(a)(2). This exception is, in essence, a subset of those cases where the statute passed by Congress precludes judicial review. That is, Congress in some instances evidences an intent that there be no judicial review by requiring an agency or official to make a decision in circumstances under which a reviewing court either would have no law to apply or would **22 find itself confronted with judi- cially unmanageable issues. Because decisions "commit- ted to agency discretion" are but one example of decisions with respect to which Congress has precluded judicial re- view, the strong presumption favoring such review applies here as well, and review is available unless it is clear that a reviewing court could not conduct a meaningful re- view. See Davis Enter. v. United States Envtl. Protection Agency, 877 F.2d 1181, 1185 (3d Cir. 1989) (presumption of reviewability exists in cases interpreting § 701(a)(2) of APA), cert. denied, 493 U.S. 1070, 107 L.Ed.2d 1020,
110 S.Ct. 1113 (1990).
The availability of judicial review under the APA is thus a matter of congressional intent n7 and we must ad- dress the reviewability of each of the issues raised by plaintiffs with that fact in mind. Before turning to that task, however, there is one further preliminary matter to be noted. The actions challenged here are not "agency
971 F.2d 936, *945; 1992 U.S. App. LEXIS 6969, **22
Page 12
*945 actions" as usually encountered under the APA. The decisionmaking contemplated by the Act is a joint un- dertaking. The President, exercising the authority which he here exercised, could not close a base that the Commission had not recommended **23 for closure. On the other hand, the Secretary and the Commission can only make recommendations under the Act. If the President fails to approve the Commission's recommen- dations, the closure process comes to an end for that year.
§ 2903(e)(5). While the statutory and constitutional vio- lations alleged here result from actions or omissions of the Commissioner and the Secretary of Defense prior to the making of their recommendations, the alleged injury to the plaintiffs did not occur but for a decision of the President and it is from that decision that the plaintiffs necessarily seek relief; it is the implementation of the President's decision that we have been asked to enjoin. Thus, at least in one sense, we are here asked to review a presidential decision.
n7 It is true, of course, that Congress may limit executive discretion only insofar as it acts within its constitutional grants of enumerated authority. See U.S. Const. art. I, § 8 (enumerating the chief powers granted to Congress). Neither party here, however, claims that Congress has acted beyond that authority in drafting the terms of the Act.
**24
While the issue remains an open one in this Circuit, the APA may not be applicable to presidential decisionmak- ing. The Court of Appeals for the District of Columbia Circuit held in Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) that the APA does not apply to the President. In Armstrong, the court reasoned that, while the APA defines
"agency" as an "authority of the government", 5 U.S.C. §
701(b)(1), Congress adopted this broad language to avoid a formalistic definition of the term and did not intend to subject the President to the APA's requirements. 924 F.2d at 289. The court also noted the longstanding practice of not requiring the President to abide by APA rulemaking procedures when issuing executive orders, and the rule that when Congress sets out to restrict presidential action, it must make its intentions clear. Id.
Even if the APA does not apply to decisions of the President, however, its provisions concerning judicial review represent a codification 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, 96
L.Ed.2d 222, 107 S.Ct. 2360 (1987) **25 (APA "cod- ifies the nature and attributes of judicial review"), and actions of the President have never been considered im- mune 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, 79
L. Ed. 446, 55 S. Ct. 241 (1935); see also INS v. Chadha,
462 U.S. 919, 953, 77 L. Ed. 2d 317, 103 S. Ct. 2764 n. 16 (1983) HN9 ("executive action under legislatively delegated authority . . . is always subject to check by the terms of the legislation that authorized it; and if that au- thority is exceeded it is open to judicial review"); Nixon v. Fitzgerald, 457 U.S. 731, 781, 73 L. Ed. 2d 349, 102 S. Ct. 2690 (1982) (White, J., dissenting) ("it is the rule, not the exception, that executive actions -- including those taken at the immediate direction of the President -- are subject to judicial review"). As explained hereafter, we view the decisionmaking assigned to the President by the Act as clearly committed to his discretion and unreview- able. Congress's intent in this regard is sufficiently clear that our review would be the same whether or not the presumption favoring judicial review under **26 the APA is applicable to presidential decisionmaking. It fol- lows 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 presidential decisionmaking.
A.
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 or realignment under § 2904(b). We say this for two reasons. First, the statutory scheme is inconsistent with there being judicial review prior to this point. The Act sets a very stringent timetable for the various
971 F.2d 936, *946; 1992 U.S. App. LEXIS 6969, **26
Page 13
*946 stages of the process it establishes and Congress clearly intended that the final decision on base closing and realignment be reached with alacrity. The Secretary is required to submit his list of recommendations to the Commission by April 15th. § 2903(c). The Commission is then required to submit its final report to the President by July 1st, ten weeks later. § 2903(d). The President, in turn, is required to make his decision within two weeks, by July
15, 1991. § 2903(e). Finally, the Act allows Congress 45
**27 days in which to disapprove the President's de- cision. § 2904(b). As the Supreme Court has repeatedly noted, judicial review while an administrative process is on-going is disruptive even where there is no requirement of expedition. See, e.g., Weinberger v. Salfi, 422 U.S. 749,
765, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975) (premature judicial interference with agency processes may prevent agency from functioning efficiently). With a timetable like that established in the Act, the ability of the partic- ipants to meet their responsibilities would be seriously jeopardized if litigation were permitted to divert their at- tention. Second, Congress was undoubtedly aware of the rule that the courts may review agency action only if its impact upon plaintiffs is direct and immediate, see Abbott Labs., 387 U.S. at 152. 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. See State of Nevada v. Watkins, 939
F.2d 710, 715 (9th Cir. 1991) (holding that Congress in- tended to preclude judicial review **28 of "preliminary decisionmaking activity").
B.
One can also say with confidence that Congress intended no judicial review of the manner in which the President has exercised his discretion in selecting bases for closure; indeed, plaintiffs do not argue otherwise. Congress imposed no restrictions on the discretion of the Commander-in--Chief concerning the domestic deploy-
ment of the nation's military resources. The Act does not require of the President, as it does of the Secretary and Commission, that he accept the force structure plan and the base-closing criteria. See § 2903(e). If the President believes that the assessment of military need by the Secretary is understated or overstated, he can reject the recommendations for that reason. This leaves a court with no law to apply; i.e., the decision on which bases to close is committed by law to presidential discretion, and judi- cial review cannot be available. Cf. Chicago and Southern Airlines v. Waterman S.S. Co., 333 U.S. 103, 92 L. Ed. 568,
68 S. Ct. 431 (1948) (under federal statute, applications to engage in foreign air transportation must be approved by President after recommendation by Civil Aeronautics Board; before Presidential approval, **29 no appeal- able final result exists, and Presidential decision itself is not reviewable because it is committed to his discretion).
C.
This does not end the matter, however. As this court has repeatedly stressed, HN10 judicial review is fore- closed only "to the extent that statutes preclude" such review and only "to the extent that agency action is com- mitted to agency discretion by law." 5 U.S.C. § 701(a); see, e.g., Kirby v. United States Govt. Dep't of Hous. and Urban Dev., 675 F.2d 60 (3d Cir. 1982); Local 2855, AFGE v. United States, 602 F.2d 574 (3d Cir. 1979). Thus, the fact that some aspects of a decisionmaking process are determined to be not subject to judicial review does not absolve the courts from the responsibility of determin- ing whether a clear congressional intention to preclude review exists with respect to other aspects of that same process. There are a number of statutes, for example, in which Congress has clearly intended that there be no re- view of the ultimate exercise of the agency's discretion, but, at the same time, has anticipated judicial review of compliance with its procedural mandates concerning the process **30 leading up to the ultimate discretionary decision. See, e.g., Bowen, 476 U.S. at 675-76 (Medicare statute
971 F.2d 936, *947; 1992 U.S. App. LEXIS 6969, **30
Page 14
*947 explicitly limits review of benefit determinations, but challenges to method of determination are not so lim- ited and therefore are reviewable); Kirby, 675 F.2d at 67-
68 (under Housing Act of 1959, decision by Secretary of HUD to provide funding for housing project is unre- viewable, but agency's compliance with procedures in Act is subject to review). Accordingly, we must conduct an issue-specific analysis with congressional intent as our loadstar.
In this context, it is important to note that while Congress did not intend courts to second-guess the Commander-in--Chief, it did intend to establish exclusive means for closure of domestic bases. § 2909(a). With two exceptions, n8 Congress intended that domestic bases be closed only pursuant to an exercise of presidential discre- tion informed by recommendations of the nation's military establishment and an independent commission based on a common and disclosed (1) appraisal of military need,
(2) set of criteria for closing, and (3) data base. Congress did not simply delegate this **31 kind of decision to the President and leave to his judgment what advice and data he would solicit. Rather, it established a specific proce- dure that would ensure balanced and informed advice to be considered by the President and by Congress before the executive and legislative judgments were made. We must keep this congressional objective in mind as we inquire whether and to what extent Congress intended decisions of the Secretary and Commission to be reviewable when someone aggrieved by a base closing alleges that those decisions and the process underlying them deviated from this congressional model.
n8 The two other means by which bases may be closed are described in § 2909(c), which provides as follows, in relevant part:
(c) Exception.--Nothing in this part affects the au- thority of the Secretary to carry out--
(1) closures and realignments under title II of
Public Law 100-526 the 1988 Act ; and
(2) closures and realignments . . . carried out for reasons of national security or a military emergency
. . .
D. **32
The defendants' primary argument is that Congress in-
tended to preclude all judicial review of the base closure process other than the limited and here irrelevant review n9 expressly authorized by the Act. The defendants ac- knowledge that there is no express prohibition of judicial review under the Act. They correctly point out, however, that this does not end the inquiry. HN11 "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administra- tive action involved." Block, 467 U.S. at 345. Defendants contend that the purpose of the Act, its structure and its legislative history are inconsistent with the existence of any judicial review other than in the narrow area ex- pressly authorized. We disagree. While the defendants have pointed to plausible reasons why Congress might have decided to dispense with all judicial review not ex- pressly authorized, nothing in the statute or its legislative history provides a basis for concluding with confidence that it actually decided to do so.
n9 The Act does provide for limited review un- der NEPA, after the closure decisions have been made. See § 2905(c)(2). Specifically, NEPA ap- plies to actions of the Secretary during the pro- cess of property disposal and during the process of relocating functions from one installation to an- other. To the extent it applies, NEPA requires any federal agency considering a "a major federal ac- tion significantly affecting the quality of the hu- man environment" to prepare an Environmental Impact Statement identifying the environmental conesquences of the proposed action and recom- mends ways to minimize those which are adverse.
42 U.S.C. § 4332(2)(c) (1988). Private parties may bring suit under the APA to challenge violations of NEPA's procedural requirements. See Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 491-92
(9th Cir. 1987).
**33
As we shall see, there are some areas of decisionmak- ing under the Act in which Congress did not intend the courts to engage in second-guessing. Whether one clas- sifies those areas as "committed to agency discretion" or simply as areas in which Congress intended to preclude judicial
971 F.2d 936, *948; 1992 U.S. App. LEXIS 6969, **33
Page 15
*948 review makes no difference; either way one looks at it, the character and context of the decision required by the Act reflects a clear legislative intention that there be no judicial review. On the other hand, there are other areas where our analysis leaves us with only the strong presumption favoring judicial review and no clear and convincing rebuttal. To hypothesize the paradigm case, if the Commission decided to dispense with public hearings in the interest of expedition, we could point to no clear and convincing evidence that Congress meant either to commit that decision to the Commission's discretion or otherwise to preclude judicial review of it.
Defendants purport to find a host of clear and convinc- ing evidence of review preclusion in the Act and its leg- islative history. We will comment only on their three most plausible arguments: those pertaining to the timetable es- tablished by the Act, its express **34 provision for limited NEPA review, and the cryptic legislative history concerning judicial review.
As we have noted, we agree with the proposition that the Act's timetable is inconsistent with judicial re- view prior to the final decision on which bases to close. However, we see little tension between that timetable and judicial review after a final list of bases for closure or realignment has been established. Judicial review at this stage will not interfere with the decisionmaking progress and holds no more potential for delay in implement- ing the final decision than exists in most of the broad range of situations in which Congress has countenanced judicial review. Moreover, the process for carrying out decisions to close and realign bases is complicated and time-consuming, see § 2905 (governing implementation of the approved list); bases are not closed or realigned overnight. The process of judicial review has proved suf- ficiently flexible to accommodate governmental actions involving far greater exigency. Finally, we know from the legislative history that Congress was very sensitive to the impact that base closing and realignments have on the livelihood and security of millions **35 of Americans and to the importance of public confidence in the in- tegrity of the decisionmaking process. See H.R. Rep. No.
665, 101st Cong., 2d Sess. 385 (1990), reprinted in 1990
U.S.C.C.A.N. 2931, 3078. In this context, accepting the brief delay occasioned by judicial review seems to us en- tirely consistent with the statutory scheme. Defendants
also contend that congressional intent to preclude judi- cial review, in particular review of procedural compliance with the Act, can be inferred from the Act's limitation of NEPA review. § 2905. Defendants point out that NEPA claims have been used to delay earlier base closures; they conclude that Congress expressed its intent to prevent procedural challenges in general by specifically exclud- ing most of the new base closure process from compliance with NEPA. Plaintiffs look at the same facts and come to the opposite conclusion: By explicitly precluding only one kind of judicial review (NEPA), Congress intended all other kinds of review to be available. That two utterly inconsistent, yet plausible arguments may be fashioned from the same legislative expression is an example of why the Supreme Court has said, "the existence of an ex- press **36 preclusion of judicial review in one section of a statute is a factor relevant to congressional intent, but it is not conclusive with respect to reviewability under other sections of the statute." Morris v. Gressette, 432 U.S.
491, 506, 53 L. Ed. 2d 506, 97 S. Ct. 2411 n.22 (1977). In short, we conclude that § 2905(c) does not constitute clear evidence of congressional intent with respect to all judicial review under the Act. n10
n10 Although they did not do so, defendants might have argued that by allowing a very limited class of NEPA claims (§ 2905(c)(2) declares that NEPA "shall apply to actions of the Department of Defense . . . during the process of property disposal, and . . . during the process of relocat- ing") but nowhere else allowing for judicial review, Congress expressed its intent to preclude all other forms of review. But we find this argument, too, ultimately unpersuasive. The mere failure to spec- ify the availability of most forms of judicial review is not enough to overcome the strong presumption that this review may be had. See State of Illinois Dep't of Public Aid v. Schweiker, 707 F.2d 273, 277
(7th Cir. 1983) (nothing much can be inferred from the fact that Congress did not specify a method for judicial review . . ., even though earlier in the statute it had specified such a method).
**37
971 F.2d 936, *949; 1992 U.S. App. LEXIS 6969, **37
Page 16
*949 Finally, the defendants argue that an intent to pre- clude judicial review is discernable from the legislative history of the Act. In particular, they point to a para- graph in the House Conference Report which addresses the question of judicial review:
HN12 The rulemaking (5 U.S.C. 553) and adjudi- cation (5 U.S.C. 554) provisions of the Administrative Procedures Act (5 U.S.C. 551 et seq.) contain explicit exemptions for "the conduct of military or foreign affairs functions." An action falling within this exception, as the decision to close and realign bases surely does, is immune from the provisions of the APA dealing with hearings
(5 U.S.C. 556) and final agency decisions (5 U.S.C. 557). Due to the military affairs exception to the APA, no fi- nal agency action occurs in the case of various actions required under the base closure process contained in this bill. These actions, therefore, would not be subject to the rulemaking and adjudication requirements and would not be subject to judicial review. HN13 Specific actions which would not be subject to judicial review include the issuance of a force structure plan under section 2903(a), the issuance of selection criteria under section 2803(b),
sic. **38 the Secretary of Defense's recommenda- tion of closures and realignments of military installations under section 2803(d), sic. the decision of the President under section 2803(e), sic. and the Secretary's actions to carry out the recommendations of the Commission under sections 2904 and 2905.
House Conference Report at 705, 1990 U.S.C.C.A.N. at
3258. The district court concluded that "this passage . . . expresses a clear congressional intent to preclude judicial review under the APA of all actions taken pursuant to the Base Closure Act." Specter, slip op. at 3. We disagree.
This passage is at best ambiguous. A fair reading re- veals only an intent to preclude judicial review to the extent that there is not yet "final agency action" to review. n11 On its face, this paragraph does not claim that the Act itself forecloses any judicial review. Its only asser- tion is that the APA will preclude some judicial review and the only rationale given for the limited preclusions it contemplates under the APA is the absence of finality. The first three "specific actions" in the following list of
illustrative actions that "would not be subject to judicial review" each lack finality and **39 thus fit comfort- ably with the reading we find most plausible. The refer- ence to the last two unreviewable "specific actions," the President's action on the Commission's recommendation and the Secretary's action in carrying out the ultimate de- cisions, concededly do not fit as well. At some point both of these types of actions become final. Nevertheless, to the extent the inclusion of reference to these actions is significant at all, n12 they do not provide us with clear evidence that Congress intended to preclude all judicial review not expressly authorized. If Congress anticipated that these particular actions would not be reviewable, it is far more reasonable to attribute this to the fact that both types of actions are clearly committed by the Act to the discretion of the decisionmaker.
n11 The reference in this passage to the APA's military affairs exception is especially mystifying. This exception to the general rulemaking and ad- judication provisions in Chapter 5 of the APA, 5
U.S.C. §§ 553 and 554, gives agencies involved in military decisions discretion to determine how much public participation, if any, will be available before a final rule is issued, and what evidence will be heard (and by whom) during an agency hearing. The military affairs exception does not, however, determine whether a certain agency action is fi- nal within the meaning of Chapter 7 of the APA, 5
U.S.C. § 701 et seq., which governs judicial review.
**40
n12 The inclusion of the Secretary's action un- der § 2905 as "not . . . subject to judicial review" provides further support for the theory that this paragraph reflects little more than imprecise staff work. The Secretary's actions under § 2905 are the only actions under the Act that are expressly made subject to judicial review.
Because we find no clear evidence of a congressional intent to preclude all judicial review other than the limited NEPA review,
971 F.2d 936, *950; 1992 U.S. App. LEXIS 6969, **40
Page 17
*950 we reject defendants' primary argument.
We recognize that our conclusion that judicial review is not altogether precluded means that there may be cases in which the challenged agency action will be found to fall short of or be inconsistent with the standards of the Act. We hasten to add that such a finding, if and when made, will not necessarily mandate judicial relief. Whether or not a violation receives a remedy is something that a court must determine through an exercise of discretion based on the character of the violation and all of the surrounding circumstances. n13 Thus, judicial review does not mean that any technical defalcation will invalidate **41 the package and require that the process be repeated from square one.
n13 Accordingly, it is unwise to speculate about the appropriate form of a remedy without know- ing the character of and circumstances surrounding the violation. We do not agree, however, that af- fording judicial relief would necessarily frustrate Congress's intent to have presidential and congres- sional action only in the context of a "single pack- age." As we shall see, any remedy afforded in this case would be limited to requiring further process in accordance with the provisions of the Act. Any such additional process could and should be af- forded on an expedited basis. If the affording of that further process does not alter the recommen- dations of the Commission, reconsideration by the President or Congress might be unnecessary. If that further process would alter the Commission's rec- ommendations, reconsideration of the entire list of recommendations by the President and Congress in accordance with the limited timetable of the Act might be both feasible and appropriate.
**42
E.
Having rejected the thesis that all judicial review is precluded, we now turn to the specific agency actions
challenged by the plaintiffs and attempt to determine with respect to each allegation whether or not there is clear and convincing evidence of a congressional intent that there be no judicial review. Count I, it will be recalled, fo- cuses on alleged deficiencies in the performances of the Secretaries of Navy and Defense.
HN14 The Secretary of Defense is required by the Act (a) to develop a force structure plan forecasting mil- itary need, (b) to identify criteria to be applied in deter- mining which bases should and should not remain to meet that need, and (c) to formulate specific recommendations by applying that plan and those criteria to the current de- ployment of military resources throughout the country. §
2903(a)-(c). The Act makes no reference to the Secretary of the Navy and places no restrictions on the Secretary of Defense with respect to his sources of data or advice.
The plaintiffs challenge the decisionmaking process of the Secretary of Defense in fulfilling the above assign- ments. They allege, inter alia, that his force structure plan
"lacked sufficient detail"; that **43 his specific recom- mendations were based on inadequate data; and that he had "decided" to close the Shipyard before developing the criteria and manipulated the criteria so as to justify that result, in violation of § 2903(c)(3) (requiring Secretary to consider all domestic installations "equally without re- gard to whether they had previously been considered for closure"). In addition, plaintiffs allege that the Secretary of Defense relied on advice and data from the Secretary of the Navy that was inadequate, insufficiently explained, and inadequately documented.
We do not think Congress intended for the courts to review this kind of challenge to action under the Act. We say this primarily for two reasons. First, the Secretary's recommendations are clearly committed to his discretion under the Act. While those recommendations are required to be based on the force structure plan and the base clos- ing criteria and thus, in one sense, there are standards to be applied, the Secretary was assigned the task of formu- lating those standards because that task required military and other expertise. n14 So,
971 F.2d 936, *951; 1992 U.S. App. LEXIS 6969, **43
Page 18
*951 too, do the tasks of applying those standards to the circumstances of each installation **44 and of estab- lishing priorities among them. Review of the Secretary's performance of these tasks would necessarily present is- sues that simply are not "judicially manageable." In com- parable circumstances, courts have concluded, based on the unmanageable nature of the issues that would be pre- sented, that Congress anticipated no judicial review. See Heckler, 470 U.S. at 830 ("if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impos- sible to evaluate agency action for 'abuse of discretion.'").
n14 The final criteria, for example, are reported in the Federal Register as follows:
In selecting military installations for closure or realignment, the Department of Defense, giving priority consideration to military value (the first four criteria below), will consider:
Military Value
1. The current and future mission requirements and the impact on operational readiness of the Department of Defense's total force.
2. The availability and condition of land, facili- ties and associated airspace at both the existing and potential receiving locations.
3. The ability to accommodate contingency, mobilization, and future total force requirements at both the existing and potential receiving locations.
4. The cost and manpower implications.
Return on Investment
5. The extent and timing of potential costs and savings, including the number of years, beginning with the date of completion of the closure or re- alignment, for the savings to exceed the costs.
Impacts
6. The economic impact on communities.
7. The ability of both the existing and poten- tial receiving communities' infrastructure to sup- port forces, missions and personnel.
8. The environmental impact.
56 Fed. Reg. 6344 (Feb. 15, 1991).
**45
In National Federation of Federal Employees v. United States, 905 F.2d 400, 405-406 (D.C. Cir. 1990)
("NFFE"), the Court of Appeals for the District of Columbia was asked to review the decisions of the Commission and the Secretary to close domestic military bases under the 1988 Base Closure Act, the predecessor of the 1990 Act which involved no presidential action. The court concluded that Congress intended no judicial review and we find ourselves in agreement with its reasoning:
The problem is not that the Act is devoid of criteria; . . .
the Act sets forth nine specific criteria to be considered in making base closing decisions. Rather the rub is that the subject matter of those criteria is not "judicially manage- able." . . . Judicial review of the decisions of the Secretary and the Commission would necessarily involve second- guessing the Secretary's assessment of the nation's mil- itary 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 pol- icy. Such decisions are better left to those more expert in issues of defense.
The second, related ground **46 for our conclusion that Congress contemplated no judicial review of these kinds of decisions, is Congress' provision of alternative meth- ods of review. Congress anticipated that questions would be raised about the adequacy of the Secretary's data and analysis. It decided to put these questions to rest and guarantee the integrity of the process not through judicial review, but through review by two bodies far more suited to the task: the Commission, and the GAO. These two entities are charged with the assessment of the Secretary's application of the criteria and the force structure plan. Given the nature of this task, it seems clear to us that an additional review by the courts would not contribute to public confidence in this part of the process and accord- ingly, we doubt that Congress intended an additional level of review.
One further comment is in order in connection with this category of issues. Plaintiffs argue that it takes no military expertise to make a finding of historic fact as to whether the Secretary prejudged the relevant issue by deciding to close the Shipyard prior to establishing the criteria. We conclude that this is an oversimplification. When Congress called upon **47 the Secretary to make recommendations, it was, of course, aware that he nec- essarily had given prior thought to the subject of base closures. It thus could not have considered prior thinking on the subject or even prior tentative decisionmaking to be a disqualifying fact. Surely, Congress intended nothing
971 F.2d 936, *952; 1992 U.S. App. LEXIS 6969, **47
Page 19
*952 more of the Secretary than that he give meaning- ful, fresh consideration with respect to any issues previ- ously visited. This is significant because judicial review of whether the Secretary has taken a meaningful fresh look necessarily presents the same kind of judicially un- manageable issues as a review to determine the adequacy of the data utilized by the Secretary.
The Act also provides that the "Secretary shall make available to the Commission and the Comptroller General of the United States all information used by the Department in making its recommendations to the Commission for closures." § 2903(c)(4). The Act thus appears to contemplate that the Commission and the GAO will have access to the Secretary's data base so that they can evaluate his recommendations. The plain- tiffs, we think, charge that the Secretary failed to create and transmit to the Commission and the GAO an admin- istrative **48 record containing all of the information the Secretary relied upon in making his recommenda- tions. If this is what the plaintiffs claim, we conclude that their claim is judicially reviewable. Judicial review of that claim presents the kind of issues with which courts have traditionally dealt and we perceive no other evidence of a congressional intent to preclude judicial review of that claim. Indeed, such a review seems entirely consistent with Congress' desire to assure the integrity of the de- cisionmaking processes. Accordingly, the presumption favoring judicial review must prevail with respect to this category of issues.
We admit to some confusion, however, as to whether the plaintiffs are complaining about the failure to trans- mit the data, or the adequacy of the data to support the recommendations. Based on the foregoing analysis, the former is reviewable by a court, the latter is not. Similar ambiguity can be found in several other of the claims here. For example, plaintiffs charge the Secretary with having failed to publish in the Federal Register as required by the Act "a summary of the selection process" and "a justifi- cation for each recommendation." Complaint at 48. If the
**49 point here is that there was no publication and the
Act required it, this is clearly a reviewable claim. If the point is that the Act requires individual justification and there were none, this again is reviewable. On the other hand, if the point is that the justifications were unper- suasive or inadequately detailed, this is not a judicially reviewable allegation.
F.
Turning to Count II, the Act requires the Commission to apply the force structure plan and criteria to the current deployment of military forces and make an independent judgment about the Secretary's recommendations. The plaintiffs challenge the decisionmaking process by which the Commission fulfilled this assignment. They charge, for example, that the Commission failed to consider all of the Navy installations equally without regard to pre- vious consideration for closure, that it failed to insist on adequate help from the GAO, that it accepted the recom- mendation of the Secretary with respect to the Shipyard even though the GAO had concluded that the Navy's de- cisionmaking was inadequately documented, that it (the Commission) utilized unpublished criteria, and that it failed to apply the published criteria equally to all **50 installations.
We conclude that each of these challenges go to the merits of the recommendations of the Commission and that the merits of those recommendations, like the merits of the recommendations of the Secretary, are not subject to second guessing by the judiciary. We are again in agree- ment with the court in NFFE that the issues raised by a review of the Commission's recommendations are not ju- dicially manageable ones. We note as well that under the Act the President and Congress review the Commission's recommendations, and both are better suited to the task than are the courts.
The Act does, however, require the Commission to hold public hearings, § 2903(d)(1), and the plaintiffs con- tend that the Commission failed to do so. Here again we are not certain we understand plaintiffs' argument, but if it is that the
971 F.2d 936, *953; 1992 U.S. App. LEXIS 6969, **50
Page 20
*953 Act requires the Commission to base its decision solely on the Secretary's administrative record and the transcript of the public hearings, and that the Commission went beyond this record by holding closed-door meetings with the Navy, we believe their contention is judicially re- viewable. In so holding, we do not decide that the Act does so require or that a remedy is **51 available under the circumstances of this case even if it does. n15
n15 Plaintiffs also argue that the Navy con- cealed all evidence favorable to the Shipyard and when the plaintiffs later obtained some of this infor- mation and called it to the Commission's attention, the Commision failed to reopen its public hearings to receive that information. This is said to violate
§ 2903(d)(1) which requires the Commission to hold hearings. If the argument is that § 2903(d)(1) required the Commission to receive all relevant in- formation even that tendered after the close of a duly noticed public hearing, judicial review of that claim seems to us entirely consistent with the con- gressional intent reflected in the Act and its legisla- tive history. By so holding, we do not, of course, endorse the proposition that the Commission's fail- ure to reopen its hearings was in conflict with §
2903(d)(1). Plaintiffs also appear to contend that the Navy's concealment of evidence favorable to the Shipyard violated § 2903(c)(4) of the Act which re- quires the Secretary of Defense to "make available to the Commission and the Comptroller General of the United States all information used by the Department in making its recommendations." If this claim is that the Secretary of Defense failed to forward information considered by him in for- mulating his recommendations, that claim is re- viewable. On the other hand, if this claim is that, because of the Navy's concealment, the Secretary of Defense failed to consider evidence that he should have considered, judicial review is not available.
**52
In sum, we conclude that the presumption favor- ing judicial review is rebutted with respect to a major- ity of plaintiffs' claims by the fact that the issues pre- sented in such a review would be judicially unmanage-
able. Where the plaintiffs ask the court to substitute its political and military judgment for that of the Secretary and the Commission, their claims are not reviewable. The plaintiffs do, however, ask for judicial review of issues that the judiciary is entirely competent to address. With respect to those issues we find the presumption in favor of judicial review unrebutted by the other alleged indicia of congressional intent. While our analysis leaves the dis- trict court with a line drawing task, it should provide the guidance necessary for disposition of plaintiffs' numerous challenges.
IV.
As an alternative ground for its decision, the district court held that the political question doctrine prevented it from reviewing the actions of the Secretary and the Commission. Noting that the Act is a carefully wrought compromise which provides both the President and Congress with an opportunity to reject the Commission's recommendations, the court reasoned that this case is "one which **53 is impossible for the court to resolve in- dependently without expressing a lack of respect due the coordinate branches of government." Specter, slip op. at
5, alluding to language in Baker v. Carr, 369 U.S. 186, 7
L. Ed. 2d 663, 82 S. Ct. 691 (1962).
The Court in Baker described the elements that iden- tify a nonjusticiable political question:
Prominent on the surface of any case held to involve a po- litical question is found a textually demonstrable consti- tutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and man- ageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without ex- pressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adher- ence to a political decision already made; or the potential- ity of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. at 217. n16 More recently, in Japan Whaling
Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230,
106
971 F.2d 936, *954; 1992 U.S. App. LEXIS 6969, **53
Page 21
*954 S. Ct. 2860, 92 L. Ed. 2d 166 (1986), **54 the Court explained that HN15 "the political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determina- tions constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." The Court also emphasized, however, that "one of the Judiciary's characteristic roles is to interpret statutes" and determine the obligations of the Executive under relevant statutes, and "we cannot shirk this responsibility merely because our decision may have significant political over- tones." Id.
n16 The Court in Baker held that an equal pro- tection challenge to the apportionment scheme of the Tennessee General Assembly did not present a nonjusticiable political question.
The authorities cited above clearly demonstrate that,
HN16 while it is not the role of the courts to disturb policy decisions of the political branches, the question of whether an agency has acted in accordance with a statute is appropriate for judicial review. In particular, **55 we do not read those authorities as precluding judicial review of any of the kinds of issues we have previously identified as judicially reversible. If, for example, the statute re- quires that a decision of the Commission be based solely on the record transmitted by the Secretary and that pro- duced during the public hearing, the political question doctrine, we conclude, would not bar review.
Defendants defend the district court's decision by pointing out that whichever of plaintiffs' claims one ad- dresses, "the relief sought by them interferes directly with the policy decision to close the Shipyard and other installations." Brief for Appellees at 37. The fact that ju- dicial review might undermine the Commission's policy choices, however, cannot by itself mean that review is not available. Judicial review of agency action almost always holds the potential to disrupt the agency's policy deci- sions. Japan Whaling, for example, involved a challenge to a decision by the Secretary of Commerce not to certify Japan under the Fishery Conservation and Management Act as acting to the detriment of an international whaling
agreement. This certification, if made, would have forced the Secretary **56 to repudiate an existing executive agreement with Japan allowing for a more gradual de- crease in that country's commercial whaling. The Court,
"cognizant of the interplay between the statute and the conduct of this Nation's foreign relations," nevertheless held the case to present a justiciable question of deter- mining whether the Secretary had met his duty under the statute, "a recurring and acceptable task for the federal courts." 478 U.S. at 230.
Defendants also argue that "the lack of respect that gives rise to a political question is especially pronounced in this case because the Act assigns Congress, rather than the courts, the role of passing judgment on the base closure decision of the Executive branch." Brief for Appellees at 38. While we agree that the Act assigns this role to Congress and that this assignment is highly relevant to some of the judicial review issues posed by this case, we cannot agree that Congress's role under the Act pre- cludes all judicial review. If congressional oversight were alone enough to create a nonjusticiable political ques- tion, the doctrine would grow to unmanageable dimen- sions: Congress "exercises oversight over all agencies,
**57 gets reports from many, and is often consulted by the executive branch before specific actions are taken." Armstrong, 924 F.2d at 292 (quotation omitted) (congres- sional oversight over agency action does not necessarily indicate intent to preclude judicial review).
Finally, defendants argue that there is "a textually demonstrable constitutional commitment" of the base closing issue "to a coordinate political department." Baker, 369 U.S. at 217. That is, decisions concerning military affairs are committed to the political branches under Articles I and II of the Constitution, and the ulti- mate issue here is the physical disposition of the nation's military forces. Brief for Appellees at 39-40. As plain- tiffs point out, however, the fact that one facet of a de- cisionmaking process involves an exercise of discretion concerning military affairs does not insulate all aspects of that process from judicial review. Friends of the Earth v. U.S. Navy, 841 F.2d 927 (9th Cir. 1988) (federal en- vironmental statutes require Navy to obtain state permit before
971 F.2d 936, *955; 1992 U.S. App. LEXIS 6969, **57
Page 22
*955 constructing port; Navy enjoined from construc- tion until permit issued). The authorities **58 cited by defendants are not to the contrary; in these cases, the courts were asked to involve themselves in matters well beyond judicial competence. See Luftig v. McNamara,
373 F.2d 664 (1967) (private in U.S. Army sought to have Vietnam War declared illegal and unconstitutional), cert. denied, 387 U.S. 945, 18 L. Ed. 2d 1332, 87 S. Ct.
2078 (1967); Gilligan v. Morgan, 413 U.S. 1, 37 L. Ed.
2d 407, 93 S. Ct. 2440 (1973) (in wake of shootings at Kent State, students sought judicial review and continu- ing surveillance over training, weaponry, and orders of National Guard).
VI.
In Count III of the complaint, the union and Shipyard employee plaintiffs allege that the defendants' disregard of the Act constitutes a violation of their rights under the Fifth Amendment Due Process Clause. They assert "that they possess a property interest under the . . . Act in the Shipyard's continued operation unless and until it is de- termined, pursuant to a . . . process in accordance with the mandates of the . . . Act, that the Shipyard should be closed." Brief for Appellants at 40. In response, de- fendants argue that these plaintiffs have no cognizable
"property interest" in the operation of the Shipyard.
It is **59 well settled HN17 that protectable prop- erty interests can arise from a statutory scheme which cre- ates legitimate claims of entitlement to particular benefits. Board of Regents v. Roth, 408 U.S. 564, 576-77, 33 L. Ed.
2d 548, 92 S. Ct. 2701 (1972). Even where an intent to bestow a benefit on private individuals is clear, however, a statutory requirement that certain procedures be observed before a benefit can be withdrawn does not in itself create a protected property interest. Olim v. Wakinekona, 461
U.S. 238, 249-51, 75 L. Ed. 2d 813, 103 S. Ct. 1741
(1983); Stephany v. Wagner, 835 F.2d 497, 500 (3d Cir.
1987), cert. denied, 487 U.S. 1207, 101 L. Ed. 2d 888,
108 S. Ct. 2851 (1988); see also, Hill v. Group Three
Housing Dev. Corp., 799 F.2d 385, 391 (8th Cir. 1986)
(intent to benefit plaintiff not enough to create cognizable property interest). The mere fact that the Shipyard cannot be closed without meeting the requirements of the Act does not mean that Shipyard employees have a valid due process claim when those procedures are not observed. Rather, the dispositive question in deciding whether the statute creates a protectable property interest is whether it places substantive limits on **60 official discretion for the benefit of shipyard workers. Stephany, 835 F.2d at 500, quoting Olim, 461 U.S. at 249. The statute must contain "explicitly mandatory language, i.e. specific di- rectives to the decisionmaker that if the regulations' sub- stantive predicates are present, a particular outcome must follow," in order to create a property interest. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463, 104
L. Ed. 2d 506, 109 S. Ct. 1904 (1989). Put another way, the complainant "must show that particularized standards or criteria guide the government's decisionmakers" in order to claim protection under the due process clause. Olim, 461 U.S. at 249 (quotation omitted).
While the Act establishes a specific process for clos- ing military installations, it places no substantive limits on any of the decisionmakers. The Secretary is allowed to develop and publish criteria and a force structure plan, without specific guidance from the statute, and has broad discretion in applying those standards to current domestic deployment of military resources. The Commission also is accorded broad discretion in applying those standards and may accept **61 the Secretary's recommendations even if they deviate substantially from the final criteria and force structure plan. See § 2903(d)(2)(B). Finally, the President and Congress, of course, may reject the Commission's recommendations for any reason at all. See
§§ 2903(e), 2904(b).
In sum, the Act specifies a particular process but does not guarantee a particular outcome. As a result, the unions and the Shipyard employees can identify no legitimate claim of entitlement under the Act
971 F.2d 936, *956; 1992 U.S. App. LEXIS 6969, **61
Page 23
*956 and Count III fails to state a due process claim upon which relief could be granted.
VII.
The judgment of the district court is reversed and this case is remanded to that court for further proceedings consistent with this opinion.
CONCURBY: ALITO (In Part) DISSENTBY: ALITO (In Part) DISSENT:
ALITO, Circuit Judge, concurring in part and dissent- ing in part.
I join parts I, II, IV, and V of the opinion of the court, but I disagree with the court's decision insofar as it holds that some of the challenged administrative actions are sub- ject to judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 701 and 702.
As the court notes (maj. typescript at 16-17), there is a "general presumption favoring judicial review of ad- ministrative **62 action," but this presumption may be overcome by express statutory language, legislative history, or "inferences of intent drawn from the statutory scheme as a whole." Block v. Community Nutrition Inst.,
467 U.S. 340, 349, 351, 81 L. Ed. 2d 270, 104 S. Ct.
2450 (1984). Assuming that this presumption applies in the present context, n1 I conclude that the legislative his- tory and the statutory scheme, considered together, show that Congress meant to preclude review. n2
n1 The defendants question whether this pre- sumption applies because of the national security ramifications of base closing and realignment deci- sions.
n2 The majority states that "at least in one sense, we are here asked to review a presidential decision"
(maj. typescript at 20). As I interpret the complaint and the plaintiffs' brief, however, they seek review, not of Presidential action, but of actions taken by the named defendants, i.e., the Secretary of Defense, the Secretary of the Navy, the Defense Base Closure and Realignment Commission, and its members. Accordingly, I see no need to decide whether ac- tions of the President are reviewable under the APA or under administrative "common law."
Because the plaintiffs do not appear to seek re- view of Presidential action and because the defen- dants' actions would not have affected the plaintiffs if the President had not accepted the Commission's
recommendations, it could be argued that the de- fendants' actions did not constitute "final agency action" under 5 U.S.C. § 704. I see no need to de- cide this question, however, because I conclude that the defendants' actions are not reviewable on other grounds.
**63
I.
The legislative history must be viewed in light of the problems that Congress confronted when it enacted the Base Closure and Realignment Acts of 1988 and
1990. Congress undoubtedly recognized that objective and prompt decisions concerning base closings are vitally important, particularly at a time of budgetary problems and rapidly changing defense needs. n3 At the same time, Congress was acutely aware that for more than a decade before the passage of these laws, every attempt to close or realign a major base in this country had been blocked by Congress itself or by the courts. n4 The 1988 and 1990
Acts were devised to clear away the major obstacles that had produced this costly impasse.
n3 See Defense Base Closure and Realignment Commission, Report to the President 1991 at v-vi hereinafter Commission Report ; Hanlon, Military Base Closings: A Study of Government by Commission, 62 U. Colo. L. Rev. 331, 336, 358
(1991).
n4 See, e.g., Base Closure: Joint Hearings on H.R. 1583 to Establish the Bipartisan Commission on the Consolidation of Military Bases Before the Military Installations and Facilities Subcommittee of the House Committee on Armed Services and Defense Policy Panel, 100th Cong., 2d Sess. 349
(1988) (statement of Rep. Armey) hereinafter Joint
Hearings ; Commission Report at 1-4.
**64
One of the chief obstacles targeted by Congress was litigation that had obstructed base closing and re- alignment efforts. See H. Conf. Rep. No. 1071, 100th Cong., 2d Sess. 23 (1988) hereinafter 1988 Conf. Rep. , reprinted in 1988 U.S. Code Cong. & Admin. News
3403. In 1977, Congress had enacted legislation requir- ing the Department of Defense to comply with various procedural requirements, including the preparation of an environmental impact statement under the National Environmental Policy Act of 1969 hereinafter NEPA , before carrying out any major base closing or realign- ment. 10
971 F.2d 936, *957; 1992 U.S. App. LEXIS 6969, **64
Page 24
*957 U.S.C. § 2687(b)(1)-(3) (Supp. I 1977). In some instances, NEPA challenges had dragged on in the courts for years and had successfully blocked the closing of as- sertedly obsolete and unneeded bases. See 1988 Conf. Rep. at 23, 1988 U.S. Code Cong. & Admin. News at
3403. Both the 1988 and 1990 Acts dealt directly with this specific problem by generally prohibiting NEPA re- view. n5 While we are not concerned with NEPA review in this case, this experience is nevertheless instructive for present purposes. It demonstrates that Congress, anxious to remove the impediments that had effectively prevented
**65 base closings and realignments for more than a decade, was keenly aware how litigation concerning pro- cedural requirements could be successfully used to stall and ultimately defeat base closing plans.
n5 Base Closure and Realignment Act of 1988, Pub. L. No. 100-526 § 202(b), 208, 102 Stat. 2623,
2627 (1988) hereinafter 1988 Act ; Defense Base
Closure and Realignment Act of 1990, Pub. L. No.
101-510, § 2905(c)(1), 104 Stat. 1808-19 here- inafter 1990 Act .
Unfortunately, while Congress expressly addressed the problem of NEPA review in the body of the 1988 and 1990 Acts, Congress did not confront the question of APA review in the same clear and direct manner. Instead, Congress relegated this question to discussion in the Conference Report. H.R. Conf. Rep. No. 101-923,
101st Cong., 2d Sess. 706 (1990) hereinafter 1990 Conf. Rep. reprinted in 1990 U.S. Code Cong. & Admin. News
3258. Moreover, the relevant passage in the Conference Report, which is set out in full in the court's opinion (ma- jority typescript at 29), **66 is not a model of clarity, as the majority points out (id. at 30-31). The passage in the report jumbles together several separate administra- tive law concepts -- the military affairs exception to the APA's general rulemaking and adjudication provisions
(5 U.S.C. §§ 553(a)(1), 554(a)(4)), the concept of final agency action (5 U.S.C. § 704), and the availability of judicial review (5 U.S.C. §§ 701(a), 702). No party in this case has been able to provide a fully satisfactory ex- egesis of this passage -- nor can I. Still, I do not think
that this passage, particularly when viewed in light of the background recounted above, can be wholly dismissed. The passage does state quite clearly that there would be no APA review of key decisions in the base closing and realignment process, including the President's decision to accept the Commission's package of recommendations and the Secretary of Defense's actions in implementing that package after the 45-day report-and--wait period. Because the issuance of the Commission's package is not included in this list, I agree with the majority that this pas- sage alone is not enough to overcome the strong presump- tion in favor of judicial review. Nevertheless, **67 I believe that this passage, despite its ambiguities, provides support for the proposition that Congress did not want APA review to interfere with its detailed base closing and realignment scheme. n6
n6 See also Cong. Rec. H100143 (daily ed. Nov. 13, 1991) (in recommending certain amend- ments to the 1990 Act, the conferees on the 1991 amendments "reaffirm the view, expressed in the
Conference Report on the 1990 Act that actions taken under the Act . . . would not be subject to judicial review."); 137 Cong. Rec. S17411 (daily ed. Nov. 21, 1991) (statement of Sen. Nunn that the conferees' 1991 statement had the same meaning as the passage in the 1990 Conference Report).
II.
"The inferences of intent drawn from this scheme"
( Block, 467 U.S. at 349) point clearly toward the same conclusion. This innovative scheme was designed to ob- viate the institutional impediments that were thought to have contributed to the decade-long impasse regarding base closings and realignments. Under this scheme, an
**68 independent, bipartisan Defense Base Closure and Realignment Commission was created to formulate a package of recommended closings and realignments.
1990 Act § 2902. After receiving submissions from the Department of Defense, the Commission must draw up and send its package of recommendations to the President by July 1 of the year in question. Id. § 2903(a)-(d). Within a short
971 F.2d 936, *958; 1992 U.S. App. LEXIS 6969, **68
Page 25
*958 time -- by July 15 -- the President must choose between two options: (a) he may approve the entire pack- age and transmit it to Congress or (2) he may disap- prove the package in whole or in part and send it back to the Commission for reconsideration. Id. § 2903(e). If the President selects the first option and approves the pack- age, Congress may disapprove the entire package by joint resolution within 45 days. Id. § 2904(b). If Congress fails to do so, all of the slated closings and realignments may be carried out. Id.
If the President selects the second option and sends the package of recommendations back to the Commission, the Commission must issue a revised package by August
15. Id. § 2903(c)(3). The President may then approve or disapprove the entire revised package. Id. § 2903(e)(4).
**69 If he approves, the package is sent to Congress, and the procedure just described is followed. If he disap- proves, the process ceases. Id. § 2903(e)(5).
This scheme was designed to eliminate at least three obstacles that had thwarted past efforts to close bases. First, the scheme sought to prevent delaying tactics by setting short, inflexible time limits for action by the Commission, the President, and the Congress. The leg- islative history makes it abundantly clear that speed and finality were regarded as indispensable components of the new scheme. The House Conference Report stated that one of the main defects in the prior procedures was that
"closures and realignments have taken a considerable period of time and have involved numerous opportu- nities for challenges in court." 1990 Conf. Rep. at 705,
1990 U.S. Code Cong. & Admin. News 3257. The Report added that the new scheme was intended to expedite this process. n7 Representative Les Aspin, the chairman of the House Armed Services Committee and one of the sponsors of the 1988 Act, n8 reiterated the same point, stating that the new plan was intended to streamline cur- rent law on base closures to allow for expeditious closure
**70 of bases once the decision to close had been fully reached under the process." 137 Cong. Rec. H6007 (daily
ed. July 31, 1991). Representative Dick Armey, one of the architects of the new scheme, n9 stated on the House floor:
n7 The Report stated (1990 Conf. Rep. at 707,
1990 U.S. Code Cong. & Admin. News at 3257):
"A new process involving an independent, outside commission will permit base closure to go forward in a prompt and rational manner . . . . The new pro- cedures would considerably enhance the ability of the Department of Defense to promptly implement proposals for base closures and realignment."
n8 H.R. Rep. No. 100-1071, pt. I, 100th Cong.,
2d Sess. 8 (1988), reprinted in 1988 U.S. Code
Cong. & Admin. News 3355, 3357. n9 Id.
One huge advantage to this base closing procedure is that it allows a base closing decision to be made with some finality. In the past, proposed base closings were often disputed for years before a final verdict was ren- dered. That was the worst of all possible worlds. Even
**71 if the base was eventually saved from closure, the businesses around the base were greatly harmed by the persistent uncertainty.
Under this procedure, however, all the communities affected have a chance to thoroughly make their case for their base. Now, this time of deliberation will come to an end and the decision will be made. At this point communities can roll up their sleeves, pull together, and find the best way to adjust to the base closure.
Id. at H6008. n10 On another occasion, Representative Armey wrote that "the supporters of obsolete bases . . . by enacting an array of environmental study mandates, advance notice requirements, and gratuitous red tape . . . have simply ground base closings to a halt." n11 He went on to explain that after a proposed closing is delayed
971 F.2d 936, *959; 1992 U.S. App. LEXIS 6969, **71
Page 26
*959 for years by litigation "the local citizenry and members of Congress are thoroughly aroused, and the political pressures to cancel the closing order are all but insurmountable." n12 See also Joint Hearings at 19 (state- ment of Rep. Armey); 134 Cong. Rec. H16715 (daily ed. Apr. 13, 1988) (statement of Rep. Armey).
n10 See also Armey, Base Maneuvers - The Games Congress Plays with the Military Pork Barrel, Joint Hearings at 30, 35, reprinted from Policy Review, Winter 1988, at 70, 75 hereinafter Base Maneuvers .
**72
n11 Base Maneuvers at 72. n12 Id.
Second, the new scheme was designed to insulate base closing and realignment decisions from actual or apparent influence by partisan and other political considerations. In the past, Executive Branch recommendations had often been criticized and defeated on the ground that particu- lar bases had been doomed or spared based on improper political factors. For example, Representative Armey said that prior base closing decisions had been "contaminated by unworthy political considerations" and that particu- lar bases had been closed or retained in order to punish or reward members of Congress. 137 Cong. Rec. H6008
(daily ed. July 31, 1991). n13 Other members echoed these sentiments. n14 See also Commission Report at 1-
1, 1-2.
n13 Joint Hearings, at 20-21 (statement of Rep. Armey quoting past statements by Senators Bumpers and Heinz); id. at 17 (statement of Rep. Armey) ("To put it bluntly, there is a widespread fear in Congress that an Administration with unre- stricted base closure power may use that power as a political weapon to intimidate Congress."); id. at 349 (statement of Rep. Armey) ("There is a fear that an Administration may use the threat to close particular military bases in order to influ- ence the votes of members of Congress."). See also
1990 Conf. Rep. at 705, 1990 U.S. Code Cong.
& Admin. News at 3257; H.R. Rep. 100-735 (II),
100th Cong., 2d Sess. 8-9, reprinted in 1988 U.S. Code Cong. & Admin. News at 3370, 3372 here- inafter 1988 House Report pt. II .
**73
n14 See, e.g., 137 Cong. Rec. H6008 (daily ed. July 31, 1991) (statement of Rep. Weldon) ("I supported the base closing process in the legisla- tion . . . because I wanted to remove the politics of the process of closing bases, and I think to a large extent we have done that from the standpoint of Republican versus Democratic politics"); id. at H6010 (statement of Rep. Snowe) ("This process was intended to remove the supposed evil of con- gressional politics from the base closure process"); id. at H6038 (statement of Rep. Fazio) ("Many serious and legitimate concerns were raised as to the political nature of the base closure recommen- dations when Secretary Cheney released his first list in January 1990. Because of these concerns, Congress included legislation as part of the fiscal year 1991 Defense authorization bill which put in place a clear, objective, and fair process for closing bases"). The legislative history of the 1988 Act re- flected similar views. See 1988 House Report pt. II at 9, 1988 U.S. Code Cong. & Admin. News at 3372
("Political pressure has thwarted attempts to effect savings and efficiencies by shutting down unneeded facilities, and the resulting belief that only by cre- ating an expedited and automatic mechanism, insu- lated from the political pressures of the normal leg- islative process, will such savings be achieved.").
**74
The new scheme sought to remove any possible grounds for such charges by transferring the responsibility for recommending closings and realignments to an inde- pendent, nonpartisan body. Furthermore, the new scheme recognized that political considerations might creep back into the decisionmaking process if either the President or the Congress was permitted to add particular bases to or remove particular bases from the list formulated by the Commission. The new scheme therefore prohibited any such additions or deletions, restricting the President's and Congress's options to the acceptance or rejection of the Commission's entire list. The House Report on the
1990 Act explained that the "right way" to close bases is to use "a highly respected bipartisan commission to recommend bases for realignment or closure based on a number of neutral and widely endorsed criteria" and to give Congress the opportunity to accept or reject the recommendations as a whole. H.R. Rep. No. 655, 101st Cong., 2d Sess. 341, reprinted in 1990 U.S. Code Cong.
& Admin. News 2931, 3067. Likewise, the House Report on the 1988 Act explained: " A major concern underly- ing the 'Base Closure Commission' proposal **75 is that political pressures in the Congress could block the closing of particular facilities. One important element of
971 F.2d 936, *959; 1992 U.S. App. LEXIS 6969, **75
Page 27
the Committee's procedure that is designed to allay that concern is the provision that the resolution may not be amended by the Congress." 1988 House Report pt. II at
9, 1988 U.S. Code Cong. & Admin. News at 3372.
971 F.2d 936, *960; 1992 U.S. App. LEXIS 6969, **75
Page 28
*960 Third, the new scheme apparently reflected the belief that Congress, although previously unable to agree on any major base closings, would find it easier to ap- prove a package of recommended closings that had to be accepted or rejected in its entirety. Chairman Aspin re- peatedly emphasized this point in public statements, n15 and his predictions proved accurate. While no major clos- ing or alignment had been accomplished since the 1970s, the Commission's 1991 recommendations were approved by the President, and a proposed joint resolution of dis- approval lost in the House by an overwhelming margin.
137 Cong. Rec. H6006 (daily ed. July 30, 1991).
n15 See Morrison, Caught Off Base, 21 Nat'l J. 801, 801 (1989) (quoting Rep. Aspin); Mills, Base Closings: The Political Pain Is Limited, 46
Cong. Q. Weekly Rep. 3625 (1988) (quoting Rep. Aspin). See also 137 Cong. Rec. H6022 (daily ed. July 31, 1991) (statement of Rep. Holloway); Mills, Challenge to Base Closings Fizzles on House Floor,
47 Cong. Q. Weekly Rep. 2062 (1989); Mills, Pain in Members' Home States Fails to Move Minds on Hill, 47 Cong. Q. Weekly Rep. 604 (1989); Towell, Hill Paves Way for Closing Old Base, 46 Cong. Q. Weekly Rep. 2999 (1988) ("By forcing Congress to deal with the proposal as a package, the new pro- cedure made it harder for members to cut deals to protect individual bases in their home districts against cutbacks.").
**76
III.
In my view, judicial review of base closing decisions is inconsistent with this scheme because a successful chal- lenge -- i.e., one that at least temporarily invalidates a base closing decision -- would thwart the scheme's fun- damental objectives.
First, it seems clear that judicial review would un- dermine the concepts of speed and finality that Congress regarded as vital parts of its plan. See Morris v. Gressette,
432 U.S. 491, 503-04, 53 L. Ed. 2d 506, 97 S. Ct. 2411
(1977). In the vast majority of cases, judicial review could not be completed within the short time limits imposed by the Act. The majority acknowledges (maj. typescript at
17) that "the Act's timetable is inconsistent with judicial review prior to the final decision on which bases to close,"
but the majority "sees little tension between that timetable and judicial review after a final list of bases for closure" has been approved by the President and not disapproved by the Congress.
I disagree. The new scheme crafted by Congress con- templates that a truly "final" decision on a package of closings and realignments would be completed within the short time periods set out. n16 The scheme did not contemplate that this "final" decision **77 would then be subject to judicial review, possible reversal, and fur- ther action by the Commission, the President, and the Congress.
n16 In providing for very limited NEPA re- view -- of property disposal and relocation actions to be taken after a final closing or alignment deci- sion (1990 Act § 2905(c)(2))-- Congress imposed a very short (60-day) statute of limitations. No statute of limitations was prescribed for a suit of the type at issue here. This seems a clear indication that no such suits were contemplated.
Furthermore, judicial review of one part of a pur- portedly "final" package will often implicate other parts of the package. Decisions regarding base closings some- times involve hard choices concerning the relative merits of comparable bases. (In this case, for example, a major theme in the plaintiffs' complaint is the Philadelphia Naval Yard's claimed superiority over other similar naval yards that the Commission evaluated more highly and therefore recommended be retained.) Thus, if the Commission de- cides to recommend **78 closure of base A rather than Base B and the decision on Base A is reversed after judi- cial review of the Commission's procedures, the decision to recommend retention of Base B will logically be called into question. In this way, judicial review of one part of the "final" package may reopen other parts of the pack- age as well -- or require the taxpayers to pay for clearly redundant facilities.
Not only would judicial review after a purportedly
"final" decision upset the timetable set out in the Act, but such review would undermine the concept that neither the President nor Congress should be permitted to approve or disapprove the closing of a particular base but should instead be
971 F.2d 936, *961; 1992 U.S. App. LEXIS 6969, **78
Page 29
*961 restricted to choosing between acceptance or re- jection of the Commission's entire package. If the plain- tiffs in this case succeed on their underlying APA claims and the Commission is required to conduct further pro- ceedings and issue a new recommendation regarding the Philadelphia Naval Yard, the President and the Congress would then be placed in precisely the situation that the new scheme was designed to avoid -- deciding whether to close or spare a single base.
In sum, it seems to me that the statutory scheme
**79 is grounded on concepts-- speed, finality, and lim- iting the President and the Congress to an all-or--nothing
choice on a package of recommendations -- that are in- consistent with judicial review under the APA. Certainly I do not suggest that review of the decision regarding the Philadelphia Naval Yard will bring the statutory scheme tumbling down, and I am unable to predict what effect if any the precedent set by this case will have on liti- gation concerning future attempted closings. I conclude only that judicial review of base closing and realignment decisions is conceptually inconsistent with the innovative scheme enacted by Congress. This analysis, reinforced by the legislative history, leads me to the conclusion that base closing decisions are not reviewable under the APA.
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