USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-2427
WILLIAM S. COHEN, ET AL.,
Plaintiffs, Appellants,
v.
DONALD RICE, SECRETARY OF THE AIR FORCE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Severin M. Beliveau, with whom Ann R. Robinson, Joseph G.
_____________________ _________________ __________
Donahue, and Preti, Flaherty, Beliveau & Pachios, were on brief for
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appellants.
Jacob M. Lewis, with whom Stuart M. Gerson, Acting Attorney
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General, Richard S. Cohen, United States Attorney, Douglas N. Letter,
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United States Attorney and Scott R. McIntosh, United States Attorney,
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were on brief for appellee.
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May 3, 1993
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STAHL, Circuit Judge. This is an action to enjoin
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the Department of Defense from carrying out the President's
decision to close Loring Air Force Base ("Loring") in
Limestone, Maine. Plaintiffs,1 seeking relief under the
Administrative Procedure Act ("APA"), 5 U.S.C. 701 et seq.,
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allege that defendants Secretary of Defense, Secretary of the
Air Force, and Base Closure and Realignment Commission ("the
Commission") violated procedural and substantive requirements
of the Defense Base Closure and Realignment Act of 1990 ("the
1990 Act"). Pub. L. No. 101-510, 2901-11, 104 Stat. 1808-
19 (codified at 10 U.S.C. 2687). In dismissing many of the
plaintiffs' claims in May 1992, the district court ruled that
the 1990 Act precludes judicial review of substantive
challenges to base closure decisions. See Cohen v. Rice, 800
___ _____ ____
F. Supp. 999 (D. Me. 1992) ("Cohen I"). In September of
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1992, the district court granted defendants' motion for
summary judgment on the remaining claims on the basis of the
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1. Plaintiffs are: United States Senators William S. Cohen
and George J. Mitchell; Maine Governor John R. McKernan, Jr.;
United States Representative Olympia J. Snowe; the towns of
Limestone, Ashland, Caswell, Fort Fairfield, Mars Hill, New
Sweden and Van Buren, and the cities of Caribou, and Presque
Isle, all of which are municipalities of the State of Maine;
Aroostook County, a political subdivision of the State of
Maine; Save Loring Committee, an organization of individual
and corporate citizens residing in the plaintiff towns and
cities, and Committee Chairman Paul D. Haines; and American
Federation of Government Employees ("AFGE") Local Union
Chapter #2943, the exclusive bargaining representative for
approximately 492 Loring employees and Chapter President Alan
Mulherin.
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2
Supreme Court's intervening decision in Franklin v.
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Massachusetts, 112 S. Ct. 2767 (1992). See Cohen v. Rice,
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800 F. Supp. 1006 (D. Me. 1992) ("Cohen II"). Plaintiffs'
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timely appeal focuses on the district court's application of
Franklin to this case. After careful review of the decision
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below, the 1990 Act, and the Court's pronouncements in
Franklin, we affirm the judgment of the district court. As
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this case is apparently the first at the appellate level to
mesh the 1990 Act with the recent dictates of Franklin,2 we
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begin with an overview of the 1990 Act and its predecessors,
and then focus on the specifics of the matter at hand.
The 1990 Act
The 1990 Act
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The 1990 Act is the latest attempt by Congress to
regulate the process by which domestic military bases are
closed or realigned. Throughout the 1960s and 1970s, the
Executive Branch attempted to reduce military expenditures by
closing or realigning military bases. See Defense Base
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Closure and Realignment Commission, Report to the President,
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("Commission Report") at 1-1 (1991). Often, however, these
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2. One other appellate court has addressed the issue we face
today, deciding, at least partially, in favor of judicial
review. See Specter v. Garrett, 971 F.2d 936 (3rd Cir.
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1992). The district court, in fact, relied on Specter in
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ruling on defendants' motion to dismiss. Subsequently,
however, following the issuance of Franklin, the Court
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granted the government's petition for certiorari in Specter,
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vacated the judgment therein, and remanded the case to the
Third Circuit for reconsideration in light of Franklin. See
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O'Keefe v. Specter, 113 S. Ct. 455 (1992).
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attempts were opposed by members of Congress, who feared the
economic impact on their constituents, and who suspected the
influence of political motivation in the Executive's
decisions. Id.
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In 1977, Congress passed legislation granting the
Secretary of Defense the power to unilaterally close
particular bases, but only after (1) notifying the Armed
Services Committees of the Senate and House of
Representatives of the selected bases; (2) submitting to the
committees his evaluation of the economic, environmental,
budgetary and strategic consequences of the closings; and (3)
deferring action for at least 60 days, during which time
Congress could legislate a halt to the closures. See 10
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U.S.C. 2687(b) (Supp. IV 1980). In addition, the proposed
closures had to comply with the requirements of the National
Environmental Policy Act of 1969 ("NEPA"). Id. While the
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1977 legislation imposed few substantive restrictions on the
Executive Branch's authority to close bases, the procedural
requirements--most notably the mandate to comply with NEPA--
made such action difficult. See Commission Report at 1-1;
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see also H.R. Conf. Rep. No. 1071, 100th Cong., 2d Sess. 23
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(1988), reprinted in 1988 U.S.C.C.A.N. 3395, 3403 ("[t]he
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conferees recognize that [NEPA] has been used in some cases
to delay and ultimately frustrate base closures . . . .").
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Congress next tackled the base closure issue in
1988 by enacting the Defense Authorization Amendments and
Base Closure and Realignment Act ("the 1988 Act"). Pub. L.
No. 100-526, 201-209, 102 Stat. 2623, 2627-34 (1988). The
1988 Act replaced the Secretary of Defense's decision-making
power with that of an independent commission, which was
granted the power to recommend bases for closure or
realignment. 1988 Act 201, 203(b)(1)-(2), 102 Stat. at
2627-28. The commission presented its recommendations to the
Secretary, who had the power to approve or disapprove the
entire group of recommendations. Id. 201(1)-(2), 202(a),
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102 Stat. 2627. If the Secretary approved the commission's
recommendations, Congress was given 45 days to override the
Secretary by passing a joint resolution. Id. 202(b), 208,
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102 Stat. 2627, 2632-34. Finally, in response to the prior
difficulties, the 1988 Act explicitly exempted the Secretary
and commission's base closure decisions from the requirements
of NEPA. Id. 204(c)(1), 102 Stat. 2630.
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Although the newer processes of the 1988 Act led to
closure or realignment of 145 domestic military bases, it was
not enacted as a permanent mechanism, but was instead a one-
time exception to the procedures set forth in the 1977
legislation. See Specter, 971 F.2d at 939. Thus, the
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Defense Secretary's January 1990 base closure proposals were
governed by the 1977 rules. Id. Members of Congress
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expressed concern over the "considerable period of time and .
. . numerous opportunities for challenges in court[]"
presented by the 1977 procedures, and noted that the
Secretary's list of bases for study "raised suspicions about
the integrity of the base closure selection process." H.R.
Conf. Rep. No. 923, 101st Cong., 2nd Sess. 705 (1990),
reprinted in 1990 U.S.C.C.A.N. 2931, 3257.
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Congress, in enacting the 1990 Act, attempted to
incorporate the procedures of the 1988 Act, without the
obstacles of prior legislation. See H.R. Rep. No. 665, 101st
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Cong., 2d Sess. 342 (1990), reprinted in 1990 U.S.C.C.A.N.
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2931, 3068 ("a new base closure process will not be credible
unless the 1988 base closure process remains inviolate").
The 1990 Act envisioned three rounds of base closures, in
1991, 1993, and 1995, and provided for the establishment of
an independent Commission to meet in each of those years.
1990 Act 2902(a), (e), 104 Stat. 1808 (1990). The Act
required the Secretary of Defense to provide Congress and the
Commission with a six-year force structure plan that assessed
national security threats and the force structure necessary
to meet such threats. Id. 2903(a)(1)-(3), 104 Stat. 1810
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(1990). The Secretary was also required to formulate
criteria for use in identifying bases for closure or
realignment. The criteria had to be published in the Federal
Register for public notice and comment, and submitted to
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Congress which had the power to evaluate and disapprove them.
Id. 2903(b), 104 Stat. 1810-11.3
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3. On February 15, 1991, the Department of Defense published
eight proposed final criteria governing base closure and
realignment. 56 Fed. Reg. 6374. The criteria were subject
to Congressional review until March 15, 1991, and became
final on that date. 1990 Act 2903(b)(2). The criteria are
reported 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
Military Value
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1. The current and future mission
requirements and impact on operational
readiness of the Department of Defense's
total force.
2. The availability and condition of
land, facilities and associated air space
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
Return on Investment
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5. The extent and timing of potential
cost and savings, including the number of
years, beginning with the date of
completion of the closure or realignment,
for the savings to exceed the cost.
Impacts
Impacts
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6. The economic impact on communities.
7. The ability of both the existing and
potential receiving communities'
infrastructure to support forces,
missions and personnel.
8. The environmental impact.
56 Fed. Reg. 6374-02 (Feb. 15, 1991).
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For the 1991 cycle, the Act required the Secretary
to recommend base closures and realignments to the Commission
by April 15, 1991, based on the force structure plan and
final criteria. Id. 2903(c)(1), 104 Stat. 1811. The Act
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charges the Commission with reviewing the Secretary's
recommendations, holding public hearings, and preparing a
report for the President containing its assessment of the
Secretary's proposals and its own recommendations. Id.
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2903(d)(1)-(2)(A), 104 Stat. 1811. The Act allows the
Commission to change any of the Secretary's recommendations
if they "deviate[] substantially" from the force structure
plan and final criteria. Id. 2903(d)(2)(B), 104 Stat.
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1811-12. However, in its report to the President, the
Commission must explain any departure from the Secretary's
recommendations. Id. 2903(d)(3), 104 Stat. 1812. The
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Secretary must make available to the Comptroller General all
information used in making the initial recommendations. The
Comptroller General must report on the Secretary's
recommendations and selection process to the Commission and
Congress, and may, to the extent requested, assist the
Commission. Id. 2903(c)(4), (d)(5), 104 Stat. 1811-12.
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Once the Commission completes its report, the Act
requires that it be transmitted to the President, who may
approve or disapprove the Commission's recommendations, and
then must relate his decision to the Commission and Congress.
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Id. 2903(e)(1)-(3), 104 Stat. 1812. If the President
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disapproves the Commission's recommendations, in whole or in
part, he returns them to the Commission, which must then
reconsider its prior recommendations and submit a revised
list to the President. Id. 2903(e)(3), 104 Stat. 1812. If
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the President does not approve the revision, and thereby does
not submit any recommendations to Congress, the base closure
process for that year is terminated. Id. 2903(e)(5). If,
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however, the President approves the Commission's
recommendations, or its revised version, Congress has 45 days
to pass a joint resolution disapproving the Commission's
recommendations in their entirety. Id. 2908, 104 Stat.
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1816-18. If a disapproval resolution is enacted, the
Secretary may not close the bases approved for closure by the
President. Id. 2904(b), 104 Stat. 1813. If Congress does
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not pass such a resolution, the Act calls for the Secretary
to close or realign all bases so recommended by the
Commission and approved by the President. Id. 2904(a), 104
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Stat. 1812-13.
The Loring Decision
The Loring Decision
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In April 1991, the Secretary issued his list of
recommended domestic base closures and realignments. See 56
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Fed. Reg. 15184 (April 15, 1991). Among the 72 military
installations on the list were 20 Air Force bases. Loring
was scheduled for closure. Id. at 15252. Pursuant to the
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Act, the Commission then conducted its analysis and review of
the Secretary's recommendations. The Commission conducted
public hearings, at which it heard testimony from Department
of Defense officials, legislators, and other experts.
Commission Report at 4-1, (G-1)-(G-2). Commissioners also
visited many of the affected bases, including Loring. Id. at
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4-1, H-1. The Commission's staff reviewed the military
services' methodologies and data used to develop their
recommendations. Id. In addition, the General Accounting
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Office ("GAO") issued a report on the Secretary's
recommendation and forwarded it to the Commission, while also
assisting the Commission in obtaining, verifying and
reviewing data. Id. at (3-1)-(3-2). In the end, the
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Commission recommended that one of the Air Force bases
targeted for closure by the Secretary remain open, but the
Commission concurred in the recommendation that Loring be
closed. Id. at (5-31)-(5-45).
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On July 10, 1991, President Bush approved the
recommendations of the Commission, including the closure of
Loring. See Cohen I, 800 F. Supp. at 1002; Cohen II, 800 F.
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Supp. at 1008. On July 30, 1991, pursuant to section 2908 of
the 1990 Act, the House considered a resolution, proposed by
plaintiff Rep. Snowe, to disapprove the Commission's
recommendations. Id. Three Commissioners, Air Force
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officials, and members of the affected communities testified
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at the hearings. 137 Cong. Rec. H6006 (daily ed. July 31,
1991). During the course of debate, Representative Snowe
urged the House to block Loring's closure, alleging a variety
of procedural errors on the part of the Commission. Id. at
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H6012-H6020. The House rejected the proposed disapproval
resolution by a vote of 364 to 60, thus requiring the
Secretary to proceed with the 1991 closures and realignments.
Id. at H6039.
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Prior Proceedings
Prior Proceedings
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Plaintiffs filed the instant suit in December 1991,
alleging in Count I that the Air Force failed to adhere to
the force structure plan and "deviated substantially" from
the published base closure criteria; failed to fairly apply
the selection criteria; improperly considered an unapproved
selection criterion; acted "arbitrarily and capriciously" in
applying the selection criteria to Loring and a rival base;
and failed to supply all relevant information to the GAO and
Congress. Count II made many of the same allegations against
the Commission, and also alleged a failure to comply with the
1990 Act's public hearing requirement.
In February 1992, the defendants moved to dismiss
the suit, essentially on the ground that the 1990 Act
implicitly precluded judicial review. Cohen I, 800 F. Supp.
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at 1005. With respect to Count I, the district court
dismissed all claims against the Air Force and Secretary,
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except those containing allegations that the Secretary failed
to transmit to the GAO, Congress and the Commission all of
the information used in preparing his recommendations, as the
1990 Act requires. Id. The court ruled that the remainder
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of plaintiffs' challenges were not judicially reviewable
because they would require the court to "reevaluate the basis
for the Secretaries' decision to close Loring. . . ."
Relying on Specter, the court held that such review was
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precluded by the Act, which "decided to put these questions
to rest and guaranty 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." Id. at
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1005 (quoting Specter, 971 F.2d at 951). The district court
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also dismissed most of the claims against the Commission made
in Count II, for essentially the same reasons. Id. at 1006.
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Only the charge that the Commission failed to hold public
hearings, in violation of section 2903(d)(1) of the 1990 Act,
was left standing. Id.
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Subsequent to Cohen I, the Supreme Court, in
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Franklin, expressed its interpretation of reviewable agency
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action under the APA. The district court, relying on
Franklin, granted defendants' motion for summary judgment on
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the remaining aspects of the case. See Cohen II. This
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appeal followed. Before delving into Franklin and its
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applicability herein, we briefly outline the strictures of
the APA.
The Administrative Procedure Act
The Administrative Procedure Act
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The APA sets forth the procedures by which federal
agencies are held accountable to the public and their actions
made subject to judicial review. Franklin, 112 S. Ct. at
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2773. Pursuant to the APA, a court may set aside any agency
action found to be arbitrary, capricious, an abuse of
discretion, or contrary to applicable legal or procedural
requirement. 5 U.S.C. 706(2). Such review, however, is
only available "`to the extent that . . . statutes [do not]
preclude judicial review' and the agency action `is [not]
committed to agency discretion by law.'" Cohen II, 800 F.
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Supp. at 1009 (quoting 5 U.S.C. 701(a)). Finally, and
perhaps most importantly, the APA authorizes judicial review
only of "final agency action for which there is no other
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adequate remedy in a court." 5 U.S.C. 704 (emphasis
added). At the heart of the instant dispute is whether the
actions complained of are "final actions" within the meaning
of the APA. In Franklin, the Court addressed this critical
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issue. We turn now to the Court's opinion.
Franklin v. Massachusetts
Franklin v. Massachusetts
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Franklin involved a challenge to the
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reapportionment of the House of Representatives following the
1990 census. Article I, 2, cl. 3, of the Constitution
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provides that Representatives "shall be apportioned among the
several States . . . according to their respective Numbers .
. . ." Section 2 of the Fourteenth Amendment mandates
counting the "whole number of persons in each state." Such
counting is to be done through "actual Enumeration,"
conducted every 10 years, "in such Manner as [Congress] shall
by Law direct." U.S. Const., art I, 2, cl. 3. Pursuant to
statutory authority, the Secretary of Commerce is directed to
conduct the decennial census "in such form and content as he
may determine." 13 U.S.C. 141(a). The Secretary then must
provide the President with the state-by-state population,
necessary for reapportionment. Id. 141(b). The President
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then sends Congress a statement, based on the Secretary's
report, showing the population of each state, and the number
of Representatives to which each state is entitled, according
to a specified formula. 2 U.S.C. 2a(a). Each state is
entitled to the number of Representatives shown in the
President's statement to Congress. Id. 2a(b). See
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generally Franklin, 112 S. Ct. at 2771 (outlining historical
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bases of apportionment and census statutes).
The Commonwealth of Massachusetts challenged the
Secretary of Commerce's inclusion of military personnel
serving overseas in state population counts for census
purposes. The resulting tabulation shifted a Representative
from Massachusetts to Washington. Id. Massachusetts claimed
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that the allocation of overseas personnel was arbitrary and
capricious under the APA. A three-judge district court panel
agreed. Commonwealth v. Mosbacher, 785 F. Supp. 230 (D.
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Mass. 1992). The Supreme Court reversed, holding that the
action of the Secretary, in reporting the population
tabulations, was not "final," within the meaning of the APA,
while the actions of the President were not subject to APA
review because the President is not an "agency" within the
APA. Franklin, 112 S. Ct. at 2773-76.
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In assessing the finality of the Commerce
Secretary's actions,4 the Court first looked to Abbott Lab.
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v. Gardner, 387 U.S. 136 (1967). There, the Court stated
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that the finality of agency action depends on whether its
impact `"is sufficiently direct and immediate' and has a
`direct effect on . . . day-to-day business.'" Franklin,
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112 S. Ct. at 2773 (quoting Abbott, 387 U.S. at 152). "An
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agency action is not final if it is only `the ruling of a
subordinate official' or `tentative.'" Id. (quoting Abbott,
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387 U.S. at 151). "The core question is whether the agency
has completed its decisionmaking [sic] process, and whether
the result of that process is one that will directly affect
the parties." Id. In answering this "core question," the
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4. Here, plaintiffs have expressly conceded that they are
not attacking the actions of the President. Thus, we focus
our discussion on Franklin's assessment of the Secretary of
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Commerce's actions.
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Court first reasoned that the census statute, unlike others,
does not explicitly require the President to transmit the
agency's report to Congress. Id. The Court stated:
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After receiving the Secretary's report,
the President is to "transmit to the
Congress a statement showing the whole
number of persons in each State . . . as
ascertained under the . . . decennial
census of the population." 2 U.S.C.
2a. Section 2a does not expressly
require the President to use the data in
the Secretary's report, but, rather, the
data from the "decennial census." There
is no statute forbidding amendment of the
"decennial census" itself after the
Secretary submits the report to the
President.
Id. at 2774.
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Therefore, according to the Court, the census
itself still presents a "moving target" after the Secretary
reports to the President, especially since there exists no
statutory bar to the President instructing the Secretary to
reform the census, even after the President receives the
Secretary's report. Id. "It is not until the President
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submits the information to Congress that the target stops
moving, because only then are the States entitled by 2a to
a particular number of Representatives." Id. Thus, the
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Court concluded: "Because the Secretary's report to the
President carries no direct consequences for the
reapportionment . . . serv[ing] more like a tentative
recommendation than a final and binding determination[,] [i]t
is, like `the ruling of a subordinate official,' not final
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and therefore not subject to review." Id. (quoting Abbott,
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387 U.S. at 151).
We agree with the district court's conclusion that
"[t]he holding and reasoning of Franklin are directly
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applicable to the facts of the present controversy." Cohen
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II, 800 F. Supp. at 1011. In arriving at its decision, the
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Franklin Court explicitly distinguished statutory schemes
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whereby the President is required to transmit an agency's
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report directly to Congress from those in which the President
is not so required, holding that the former represent final
agency action, under the APA, but that the latter do not.
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 rejection of a Commission report. In
our view, the agency action involved here bears even less
indicia of finality than that in Franklin, where the majority
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referred to the President's role in reapportionment as
"admittedly ministerial," id. at 2775, yet still found the
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President's action to be the "final action." Id.
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Plaintiffs seek to avoid Franklin's restrictions by
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arguing that this case involves a challenge to the
Commission's faulty procedures, e.g., failing to hold public
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hearings and failing to provide information to Congress and
the GAO, whereas Franklin, according to plaintiffs,
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proscribes only challenges to an agency's substantive
decisions. As an initial matter, we note that Franklin makes
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no such distinction. In any event, we view it as a
distinction without legal difference. As previously noted,
Franklin's finality determination explored whether an agency
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action has a "sufficiently direct and immediate" impact.
Here, if the Commission's report to the President is not a
"final action," then the techniques used by the Commission to
create the report, which are even more preliminary to the
final decision, cannot themselves be "final agency actions."
In sum, whether the complaints are styled as procedural or
substantive, our answer to the "core question" of finality
remains the same. The judgment of the district court is
therefore affirmed.5
affirmed.
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5. Because we have based our decision on Franklin's finality
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analysis, we need not address whether the 1990 Act, by its
own terms, precludes judicial review.
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