The Availability of Judicial Review Regarding Military Base Closures and Realignments
CRS Report for Congress
The Availability of Judicial Review Regarding
Military Base Closures and Realignments
Updated June 30, 2005
Ryan J. Watson
American Law Division
Congressional Research Service ˜ The Library of Congress
The Availability of Judicial Review Regarding Military
Base Closures and Realignments
The 2005 round of military base realignments and closures (BRAC) is now
underway. The Defense Base Closure and Realignment Act of 1990 (Base Closure
Act), as amended, establishes mandatory procedures to be followed throughout the
BRAC process and identifies criteria to be used in formulating BRAC
recommendations. However, judicial review is unlikely to be available to remedy
alleged failures to comply with the Base Closure Act’s provisions. A synopsis of the
relevant law regarding the availability of judicial review in this context is included
!The actions of the Secretary of Defense (Secretary) and the
independent BRAC Commission (Commission) are not considered
to be “final agency action,” and thus cannot be judicially reviewed
pursuant to the Administrative Procedure Act (APA).
!Even if a court determined that the actions of the Secretary and the
Commission were “final agency action,” the court would likely
consider the case to fall under one of two APA exceptions to judicial
review: (1) when statutes preclude judicial review or (2) when
agency action is committed to agency discretion by law.
!The President’s actions cannot be judicially reviewed under the
APA, because the President is not an “agency” covered by the
!A claim that the President exceeded his statutory authority under the
Base Closure Act has been held to be judicially unreviewable,
because the Base Closure Act gives the President broad discretion
in approving or disapproving BRAC recommendations.
Thus, courts would likely allow the BRAC process to proceed even if the
Department of Defense, the Commission, or the President did not comply with the
Base Closure Act’s requirements.
This report was prepared by Ryan J. Watson, Law Clerk, under the general
supervision of Aaron M. Flynn, Legislative Attorney. It will be updated as case
In troduction ......................................................1
Administrative Procedure Act Claims..................................3
Determining the Finality of Agency Action..........................3
Statutory Preclusion of Judicial Review............................4
Agency Actions Committed to Agency Discretion by Law..............5
Review of Presidential Action Under the APA.......................7
Base Closure Act Claims............................................7
List of Figures
Figure 1: The BRAC Process.........................................2
The Availability of Judicial Review
Regarding Military Base Closures
The Defense Base Closure and Realignment Act of 1990 (Base Closure Act),
as amended, generally governs the military base realignment and closure (BRAC)
process.2 After three previous BRAC rounds, Congress authorized a fourth round for
The BRAC process involves a complex statutory scheme, under which
numerous governmental entities play a role in recommending bases to be closed or
realigned. A brief summary of the major steps in the process is illustrated in Figure
1 on the following page. In addition to establishing the basic framework for the
BRAC process, the Base Closure Act sets forth a variety of selection criteria and
mandatory procedures, such as the requirements that certain information be disclosed
and that certain meetings be made open to the public
This report analyzes whether judicial review is available when plaintiffs allege
that the Department of Defense (DOD), the independent BRAC Commission
(Commission), or the President has either (1) failed to comply with procedural
requirements of the Base Closure Act or (2) failed to properly apply specified
selection criteria in making BRAC determinations. Congress could employ
numerous strategies to attempt to “enforce” the Base Closure Act.4 However, this
report focuses on the effect a failure to comply would have if Members of Congress
or other parties sued based on an alleged failure to comply with the Act’s provisions.5
In particular, the report synthesizes key federal court decisions that address three
1 This report was prepared by Ryan J. Watson, Law Clerk, under the general supervision of
Aaron M. Flynn, Legislative Attorney. It will be updated as case developments warrant.
2 Defense Base Closure & Realignment Act of 1990, P. L. 101-510; see also P.L. 107-107.
For ease of reference, all citations to the Base Closure Act refer to the relevant sections of
the Base Closure Act as it appears in the note following 10 U.S.C. § 2687 (Supp. 2003).
3 P.L. 107-107, § 3001, 115 Stat. 1012 (2001).
4 For example, Congress could use its subpoena power to obtain undisclosed information or
use the appropriations process to affect BRAC actions.
5 This report does not analyze standing. In its most basic form, Article III standing requires
a showing that plaintiffs suffered “injury in fact” that was caused by the challenged action,
and that such injury would likely be redressed by a favorable judicial determination. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Standing of Members of
Congress to sue raises other questions as well. See Raines v. Byrd, 521 U.S. 811 (1997).
potential bases for judicial review of BRAC-related actions: the Administrative
Procedure Act (APA), the Base Closure Act, and the U.S. Constitution.
Figure 1: The BRAC Process6
Additional CRS reports addressing a variety of BRAC issues are also
avai l abl e. 7
6 All citations in Figure 1 are to the Base Closure Act, unless otherwise noted.
7 For information regarding BRAC processes and issues, see CRS Report RL32216, Military
Base Closures: Implementing the 2005 Round, by David E. Lockwood; CRS Report
RS22061, Military Base Closures: The 2005 BRAC Commission, by Daniel H. Else and
David E. Lockwood; and CRS Report 97-305, Military Base Closures: A Historical View
Administrative Procedure Act Claims
The Administrative Procedure Act (APA) provides for judicial review of “final
agency action,”8 unless either of two exceptions applies: (1) when a statute precludes
judicial review or (2) when “agency action is committed to agency discretion by
Determining the Finality of Agency Action
In Dalton v. Specter, Members of Congress and other plaintiffs sought to enjoin
the Secretary of Defense (Secretary) from closing a military installation during a
previous BRAC round because of alleged substantive and procedural violations of
the Base Closure Act.10 Specifically, plaintiffs alleged that the Secretary’s report and
the Commission’s report were subject to judicial review under the APA.11
In Dalton, the Supreme Court held that the issuances of the Secretary’s report
and the Commission’s report were not judicially reviewable actions under the APA
because they were not “final agency action[s].”12 The Court explained that “‘[t]he
core question’ for determining finality [of agency action under the APA is] ‘whether
the agency has completed its decisionmaking process, and whether the result of that
process is one that will directly affect the parties.’”13 Because the Base Closure Act
established a process under which the President takes the final action that affects
military installations (see Figure 1 on the previous page), the actions of the Secretary
and the Commission did not directly affect the parties.14 Thus, the Court held that
they were unreviewable under the APA.15
The Dalton decision affirmed the analysis in Cohen v. Rice, in which the First
Circuit stated that the President’s statutory right to affect the BRAC process meant
from 1988 to 1995, by David E. Lockwood and George Siehl. For information regarding
issues such as property disposal and environmental cleanup, see CRS Report RS22066, Base
Realignment and Closure (BRAC): Property Transfer and Disposal, by Aaron M. Flynn;
CRS Report RS22065, Military Base Closures: Role and Costs of Environmental Cleanup,
by David M. Bearden; and CRS Report RS22147, Military Base Closure: Socioeconomic
Impacts, by Tadlock Cowan and Baird Webel.
8 5 U.S.C. § 704 (2000).
9 Id. § 701(a).
10 Dalton v. Specter, 511 U.S. 462, 464, 466 (1994).
11 Id. at 466; see also 5 U.S.C. § 701 et seq. (2000).
12 Dalton, 511 U.S. at 469.
13 Id. at 470 (quoting Franklin v. Massachusetts, 505 U.S. 788, 796-97 (1992)).
14 Id. at 469-70; accord Cohen v. Rice, 992 F.2d 376, 381-82 (1st Cir. 1993).
15 Dalton, 511 U.S. at 470-71.
that previous steps of the BRAC process were not final.16 As the Cohen court
Under the 1990 Act, the President is not required to submit the Commission’s
report to Congress. In addition, the 1990 Act gives the President the power to
order the Commission to revise its report, and, in the final analysis, the President
has the power to terminate a base closure cycle altogether via a second rejection17
of a Commission report.
In addition, a subsequent Supreme Court decision described the BRAC reports as
“purely advisory” and subject to the “absolute discretion” of the President, thus
making them non-final agency action for APA purposes.18
Importantly, the Dalton Court applied its analysis of finality under the APA to
both substantive claims (applying improper selection criteria) and procedural claims
(e.g., failing to make certain information public).19 Therefore, the lack of finality in
BRAC actions taken by the Secretary or the Commission bars judicial review of such
actions under the APA.20
Statutory Preclusion of Judicial Review
Four Justices concurred in the Dalton Court’s judgment that judicial review was
not available under the APA, but argued in a separate concurring opinion that the
Court should not have decided the issue of whether the agency actions were final.21
The foundation for this argument is that under the APA, judicial review is not
available if statutes preclude judicial review.22
Justice Souter — writing for these four Justices — argued that “the text,
structure, and purpose of the Act compel the conclusion that judicial review of the
Commission’s or the Secretary’s compliance with it is precluded” (except for certain
environmental objections to base closure implementation plans).23 Souter’s opinion
concluded that Congress intended for BRAC actions to be “quick and final, or [for]
no action [to] be taken at all.”24
16 See id.
17 Cohen, 992 F.2d at 381-82.
18 See Bennett v. Spear, 520 U.S. 154, 178 (1997) (citing Dalton, 511 U.S. at 478).
19 See Dalton, 511 U.S. at 466, 468-71; accord Cohen, 992 F.2d at 381-82.
20 Dalton, 511 U.S. at 468-71.
21 See id. at 478-84 (Souter, J., concurring in judgment).
22 See 5 U.S.C. § 701(a)(1).
23 Id. at 479, 483 (Souter, J., concurring in judgment).
24 Id. at 479 (Souter, J., concurring in judgment).
Souter cited a variety of evidence to support the contention that Congress
generally intended to preclude judicial review under the Base Closure Act:25
!statutorily-mandated strict time deadlines for making and
implementing BRAC decisions
!“the all-or-nothing base-closing requirement at the core of the Act”
!congressional frustration resulting from previous attempts to close
!“nonjudicial opportunities to assess any procedural (or other)
irregularities,” (i.e., the opportunities for the Commission and the
Comptroller General to review the Secretary’s recommendations, the
President’s opportunity to consider procedural flaws, and Congress’s
opportunity to disapprove the recommendations)
!“the temporary nature of the Commission”
!the fact that the Act expressly provides for judicial review regarding
objections to base closure implementation plans under the National
Environmental Policy Act of 1969 (NEPA) that are brought “within
a narrow time frame,” but the Act does not explicitly provide for any
other judicial review
Importantly, whether the Supreme Court applies the rationale of the Dalton
majority or Justice Souter’s Dalton concurrence, the Court would likely decide not
to review the BRAC actions of the Secretary or the Commission under the APA in
the 2005 round.
Agency Actions Committed to Agency Discretion by Law
Under the APA, judicial review of agency action is not available if “agency
action is committed to agency discretion by law.”26 Even if the actions of the
Secretary or the Commission were held to be final agency action (which would be
unlikely, given the Dalton decision), courts might consider those agency actions to
be committed to agency discretion by law — thus making them judicially
unreviewable.27 Because there is a “strong presumption that Congress intends
judicial review of administrative action,” “clear and convincing evidence” of contrary
congressional intent must exist in order for this exception to judicial review to
The issue of whether actions of the Secretary or the Commission under the Base
Closure Act are committed to agency discretion by law has not been adjudicated by
the Supreme Court. Instead, several Supreme Court cases have addressed this issue
in non-BRAC contexts and one D.C. Circuit case addressed the applicability of the
25 Id. at 479, 482-83 (Souter, J., concurring in judgment).
26 5 U.S.C. § 701(a)(2).
27 See Nat’l Fed’n of Fed. Employees v. United States, 905 F.2d 400, 405-06 (D.C. Cir.
28 Franklin, 505 U.S. at 816 (Stevens, J., concurring in judgment) (internal citations and
quotation marks omitted); see also 5 U.S.C. § 701(a)(2).
exception to the Base Closure Act. These cases are analyzed in the following
In Heckler v. Chaney, the Supreme Court explained that the exception for
agency action being committed to agency discretion applies if “a court would have
no meaningful standard against which to judge the agency’s exercise of discretion.”29
The Court continued, saying that “if no judicially manageable standards are
available for judging how and when an agency should exercise its discretion, then it
is impossible to evaluate agency action for ‘abuse of discretion,’ [as provided for in
In National Federation, the D.C. Circuit found that the criteria DOD and the
Commission use for making BRAC determinations do not provide judicially
manageable standards, as required by the Heckler test.31 The D.C. Circuit articulated
the rationale for its finding:
[T]he subject matter of those criteria is not ‘judicially manageable’ . . . .
[because] judicial review of the decisions of the Secretary and the Commission
would necessarily involve second-guessing the Secretary’s assessment of the
nation’s military force structure and the military value of the bases within that
structure. We think the federal judiciary is ill-equipped to conduct reviews of the32
nation’s military policy.
Based on this finding, the National Federation court held that application of the
selection criteria to military installations during the BRAC process is agency action
committed to agency discretion by law, thus making it judicially unreviewable under33
More recently, the Supreme Court observed that this exception has generally
applied in three categories of cases:
(1) cases involving national security;
(2) cases where plaintiffs sought judicial review of an agency’s refusal to pursue
enforcement actions; and
29 Heckler v. Chaney, 470 U.S. 821, 830 (1985).
30 Id. (emphasis added). The Supreme Court has also stated that the exception in 5 U.S.C.
§ 701(a)(2) applies when there is no law available for the court to apply. See Webster v.
Doe, 486 U.S. 592, 599 (1988). However, in the BRAC context, the Base Closure Act
provides the relevant law. Thus, the critical question is whether that law contains a
“meaningful standard,” as required by Heckler. See Heckler, 470 U.S. at 830.
31 Nat’l Fed’n, 905 F.2d at 405; see Heckler, 470 U.S. at 830. The criteria used during the
BRAC round at issue in National Federation were substantially similar to those being used
in the 2005 BRAC round. Compare Base Closure Act § 2913 with Nat’l Fed’n, 905 F.2d
32 Nat’l Fed’n, 905 F.2d at 405-06.
(3) cases where plaintiffs sought review of “an agency’s refusal to grant
reconsideration of an action because of material error.”34
Although the Base Closure Act may not fit squarely within any of those three
categories, the Supreme Court might adopt the D.C. Circuit’s construction of the
exception from National Federation were it to construe the exception in the context
Review of Presidential Action Under the APA
In Dalton, the Supreme Court held that the President’s approval of the
Secretary’s BRAC recommendations was not judicially reviewable under the APA,
because the President is not an agency.35 Although the APA’s definition of an
“agency” does not explicitly include or exclude the President,36 the Court had
previously held that the President is not subject to the APA, due to separation of
Base Closure Act Claims
The Dalton Court distinguished between two types of potential claims: (1)
claims that the President exceeded his statutory authority and (2) claims challenging
the constitutionality of the President’s actions.38 The Court stated that not every case
of ultra vires conduct by an executive official was ipso facto unconstitutional.39
In Dalton, the lower court had held that the President would be acting in excess
of his statutory authority under the Base Closure Act if the Secretary or the
Commission had failed to comply with statutorily-required procedures during
34 See Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993).
35 Dalton, 511 U.S. at 470; accord Franklin, 505 U.S. at 801.
36 See 5 U.S.C. § 701(b)(1) (emphasis added): “‘[A]gency means each authority of the
Government of the United States, whether or not it is within or subject to review by another
agency, but does not include — (A) the Congress; (B) the courts of the United States; (c)
the governments of the territories or possessions of the United States; (D) the government
of the District of Columbia; (E) agencies composed of representatives of the parties or of
representatives of organizations of the parties to the disputes determined by them; (F) courts
martial and military commissions; (G) military authority exercised in the field in time of war
or in occupied territory; or (H) functions conferred by [certain statutes].”
37 See Franklin, 505 U.S. at 800-01.
38 Dalton, 511 U.S. at 472-75.
39 Id. at 472-74.
previous stages of the BRAC process.40 On appeal, the Supreme Court characterized
this claim as a statutory claim — not as a constitutional claim.41
The Court assumed arguendo that some statutory claims against the President
could be judicially reviewable apart from the APA.42 However, it stated that
statutory claims are not judicially reviewable apart from the APA “when the statute
in question commits the decision to the discretion of the President.”43 According to
the Court, the Base Closure Act did not limit the President’s discretion in any way.44
Thus, the President’s authority to approve the BRAC recommendations was “not
contingent on the Secretary’s and Commission’s fulfillment of all the procedural
requirements imposed upon them by the [Base Closure] Act.”45 Therefore, the issue
of how the President chose to exercise his discretion under the Base Closure Act was
held to be judicially unreviewable.46
Justice Blackmun, concurring in part and concurring in the judgment, attempted
to narrowly define the scope of the Dalton decision.47 He considered the decision to
be one that would allow judicial review of a claim (1) if the President acted in
contravention of his statutory authority (e.g., adding a base to the Commission’s
BRAC recommendations list) or (2) if a plaintiff brought “a timely claim seeking
direct relief from a procedural violation” (e.g., a claim that a Commission meeting
should be public or that the Secretary should publish proposed selection criteria and
allow for public comment).48
However, Justice Blackmun’s argument that plaintiffs could seek relief from a
procedural violation of the Base Closure Act appears to directly conflict with Chief
Justice Rehnquist’s opinion on behalf of the Dalton majority, which stated:
The President’s authority to act is not contingent on the Secretary’s and
Commission’s fulfillment of all the procedural requirements imposed upon them
by the [Base Closure] Act. Nothing in § 2903(e) requires the President to
determine whether the Secretary or Commission committed any procedural
violations in making their recommendations, nor does § 2903(e) prohibit the49
President from approving recommendations that are procedurally flawed.
40 Dalton, 511 U.S. at 466, 474.
41 Id. at 474-75. See the following section of this report for an analysis of potential
42 Id. at 474.
44 Id. at 476-77; see Base Closure Act § 2903(e).
45 Dalton, 511 U.S. at 476.
47 Id. at 477-78 (Blackmun, J., concurring in judgment).
48 Id. (Blackmun, J., concurring in judgment).
49 Id. at 476-77.
As mentioned in the preceding section of this report, the Dalton Court explained
that claims that the President acted in excess of his statutory authority differ from
claims that the President unconstitutionally acted in the absence of statutory
authority.50 Specifically, the Court distinguished the issues in Dalton from those in51
Youngstown Sheet & Tube Co. v. Sawyer, a landmark case on presidential powers.
The Court said that Youngstown “involved the conceded absence of any statutory52
authority, not a claim that the President acted in excess of such authority.” Because
the Base Closure Act provides statutory authority to the President, the Dalton Court
did not find it necessary to examine the constitutional powers of the President (e.g.,
the President’s powers as Commander-in-Chief).
A litigant could also challenge the constitutionality of the Base Closure Act
itself. For example, in National Federation, plaintiffs unsuccessfully argued that the
powers doctrine. However, the Base Closure Act has not yet been held
unconstitutional by any federal appellate courts.
50 Id. at 472-75.
51 Id. at 473; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
52 Id. (citing Youngstown, 343 U.S. 579). Indeed, Justice Jackson’s Youngstown concurrence
also attempted to articulate several categories of presidential action: “1. When the President
acts pursuant to an express or implied authorization of Congress, his authority is at its
maximum . . . . 2. When the President acts in absence of either a congressional grant or
denial of authority . . . . [and] 3. When the President takes measures incompatible with the
express or implied will of Congress, his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of Congress over the
matter.” Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring). Using Justice Jackson’s
framework, the Dalton case would fall within the first category, because the Base Closure
Act granted the President discretion in approving or disapproving the BRAC
recommendations. See Dalton, 511 U.S. at 472-75.
53 Nat’l Fed’n, 905 F.2d at 404-05.