Rendell v. Rumsfeld

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

4-18-2007

Rendell v. Rumsfeld
Precedential or Non-Precedential: Precedential

Docket No. 05-4740

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 05-4740
___________

EDWARD G. RENDELL, In his official capacity as
Governor of the Commonwealth of Pennsylvania; ARLEN
SPECTER, In his official capacity as United States Senator;
RICK SANTORUM, In his official capacity as
United States Senator

v.

DONALD H. RUMSFELD, In his official capacity as
Secretary of Defense of the United States,
Appellant

___________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania

(D.C. No. 05-cv-03563)
District Judge: The Honorable John R. Padova
___________

ARGUED NOVEMBER 6, 2006
 BEFORE: SLOVITER, CHAGARES,
and NYGAARD, Circuit Judges.

(Filed: April 18, 2007)
___________

H. Thomas Byron, III, Esq. (Argued)
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Washington, DC 20530
Counsel for Appellant

Antoinette R. Stone, Esq. (Argued)
Brown Stone Nimeroff
1818 Market Street
Suite 2300
Philadelphia, PA 19103

Calvin R. Koons, Esq.
Daniel J. Doyle, Esq.
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee

2
 ___________

OPINION OF THE COURT
___________

NYGAARD, Circuit Judge.

Pennsylvania Governor Edward Rendell and other
various elected officials brought an action in the District Court
testing the legality of recommendations made by Secretary of
Defense Donald Rumsfeld (hereinafter, Secretary) to deactivate
the 111 th Fighter Wing of the Pennsylvania National Guard. The
District Court ruled that the Secretary’s recommendations were
invalid and the Secretary has appealed.

I.

The District Court addressed two issues on motions for
summary judgment: first, whether the Secretary of Defense can
legally recommend deactivating the 111 th Fighter Wing without
the prior consent of the Governor of Pennsylvania; and, second,
whether the portion of the Department of Defense report that
recommends deactivation of the 111 th Fighter Wing is null and
void because Governor Rendell did not consent to the
deactivation. The District Judge concluded that the Secretary’s
recommendation violated 32 U.S.C. § 104(c), which reads:

To secure a force the units of which when
combined will form complete higher tactical
units, the President may designate the units of the

3
 National Guard, by branch of the Army or
organization of the Air Force, to be maintained in
each State, the Commonwealth of Puerto Rico,
the District of Columbia, Guam and the Virgin
Islands. However, no change in the branch,
organization, or allotment of a unit located
entirely within a State may be made without the
approval of its governor. (Emphasis added)

The District Court based its conclusion on the premise that the
Secretary’s recommendation was equivalent to a change and,
hence, violated the italicized portion of the provision. On
appeal the Secretary argues that the District Court’s order should
be vacated as moot; or in the alternative, that if not moot, should
be reversed as non-justiciable.

We need not address the issue of justiciability because we
conclude that the case is now moot. Hence we will vacate the
District Court’s February 7, 2005 Order, and remand the cause
to the District Court with instructions to dismiss the case as
moot. See United States v. Munsingwear, 340 U.S. 36, 39
(1950).
II.

The facts germane to our review are neither complex nor
extensive. They begin in 1990 when Congress enacted the
Defense Base Closure and Realignment Act. (DBCRA) Its
purpose was to “provide a fair process that will result in the
timely closure and realignment of military installations inside

4
the United States,” DBCRA, § 2901 (b).1 Upon enactment, the
DBCRA established the process for identifying military
installations for closure and became “the exclusive authority for
closure and realignment” of any such installation. DBCRA, §
2909(a). The DBCRA, inter alia required the Secretary of
Defense to recommend to the Commission bases he had
identified for closure. The DBCRA further required the
Commission to hold public hearings on the Secretary’s
recommendations, prepare a report on his recommendations, and
then publish its conclusions and recommendations as to which
units should be deactivated and which bases should be closed.

The DBCRA required the Commission to send its
conclusions and recommendations to the President, who was
then obligated to issue his own report “containing his approval
or disapproval of the Commission’s recommendations.”
DBCRA § 2914(e)(1). The statute “does not at all limit the
President’s discretion in approving or disapproving the
Commission’s recommendations.” Dalton v. Specter, 511 U.S.
462, 476 (1994). Nonetheless, the President could not select
from among the Commission’s recommendations piecemeal, but
was required either to accept or reject the Commission’s
recommendations in their entirety. Id. at 470, DBCRA §
2903(e). The President’s report (and list of recommended
closures) was then to be sent to Congress with his certification

1. The DBCRA was originally enacted as Part A of Title
XXIX of Public Law 101-510, 104 Stat. 1808 (1990) and has
since been amended. Citations in this opinion are to the text of
the statute reprinted as a Note following 10 U.S.C. § 2687.

5
of approval. The DBCRA gave Congress forty-five days in
which to disapprove and reject the President’s report, before it
became final. It is only when this process was complete and
after the President’s report became final that the Secretary of
Defense was empowered to close any base, to deactivate any
Wing or Unit, or to realign or combine any Wings or Units.

The process outlined above was followed precisely. As
required by the DBCRA, Secretary Rumsfeld sent his
recommendations to the Commission. The recommendation at
issue in this case reads as follows:

Close Naval Air Station Joint Reserve Base
Willow Grove, PA. Relocate all Navy and Marine
Corps Squadrons, their aircraft and necessary
personnel, equipment and support to McGuire Air
Force Base, Cookstown, NJ . . . Deactivate the
111 th Fighter wing (Air National Guard) and
relocate assigned A-10 aircraft [to other Air
National Guard units].

On the same day that the District Court entered its order,
the Commission met to consider the Secretary’s
recommendations. The Commission was unanimous in its vote
to strike the following language from the Secretary’s report:
“Deactivate the 111 th Fighter Wing (Air National Guard) and
relocate assigned A-10 aircraft to [other units].” Commission
Transcript at 135-137. The Commission’s final report to the
President incorporated these deletions. It also “encourage[d] the
DoD to consider identifying A-10 aircraft to form an A-10 Wing
or detachment using the 111 th . . .” Commission Report at 96.

6
The report contained the following concerning the 111th’s
future:

If the Commonwealth of Pennsylvania decides to
change the organization, composition and location
of the 111 th Fighter Wing (ANG) to integrate the
unit into the Future Total Force, all personnel
allotted to the 111 th Fighter Wing (ANG) . . .will
remain in place and assume a mission relevant to
the security interests of the Commonwealth of
Pennsylvania and consistent with the integration
of the unit in to Future Total Force. . .This
recommendation does not effect a change to the
authorized end-strength of the Pennsylvania Air
National Guard. . .

Commission Report at 96-97.

The Commission then sent its Report to the President.
He approved it and sent the Report to Congress with a letter that
certified his approval of “all the recommendations contained in
the Commission’s report.” The House of Representatives
rejected a disapproval resolution by a vote of 324 to 85. The
Senate never voted. Forty five days passed and the
Commission’s recommendations became law.

At this point, and only at this point, the Secretary became
authorized to implement the Commission’s recommendations,
the President’s Report, and the final Act of Congress.
Congressional authority for the Commission expired on April
15, 2006, and the Commission ceased to exist.

7
 III.

As noted, Governor Rendell, Senators Specter and
Santorum filed suit against Secretary Rumsfeld contending that
32 U.S.C. § 1049(c) forbade any “change in the branch,
organization or allotment of a [National Guard] unit located
entirely within a State . . without the approval of that State’s
governor.” They sought a declaration that “Secretary Rumsfeld
may not, without first obtaining Governor Rendell’s approval,
deactivate the 111 th Fighter Wing.” The District Court’s order
granting summary judgment for plaintiffs declared that;

a. Secretary Rumsfeld, by designating the 111 th
Fighter Wing of the Pennsylvania National Guard
[for deactivation] without first obtaining the
approval of governor Rendell, has violated 32
U.S.C. § 104 (c).

b. The portion of the [Secretary’s] report that
recommends deactivation of the 111 th Fighter
Wing of the Pennsylvania Air National Guard is
null and void.

IV.

We have an independent obligation at the threshold to
examine whether we have appellate jurisdiction. Lorillard
Tobacco Co. v. Bisan Food Corp. 377 F.3d 313, 318 (3d Cir.
2004) (citing Gov't of V.I. v. Hodge, 359 F.3d 312, 317 (3d Cir.
(2004)). Our mootness analysis “traditionally begins with ‘the
requirement of Article III of the Constitution under which the

8
exercise of judicial power depends upon the existence of a case
or controversy.’” Intn’l Bhd. of Boilermakers v. Kelly, 815 F.2d
912, 914 (3d Cir. 1987) (quoting North Carolina v. Rice, 404
U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). The
existence of a case or controversy, in turn, requires “ ‘(1) a legal
controversy that is real and not hypothetical, (2) a legal
controversy that affects an individual in a concrete manner so as
to provide the factual predicate for reasoned adjudication, and
(3) a legal controversy with sufficiently adverse parties so as to
sharpen the issues for judicial resolution.’ ” Id. at 915 (quoting
Dow Chem. Co. v. EPA, 605 F.2d 673, 678 (3d Cir.1979)).
“The central question of all mootness problems is whether
changes in circumstances that prevailed at the beginning of the
litigation have forestalled any occasion for meaningful relief.”
In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).

Moreover, it does not matter when the case becomes
moot. The requirement that a case or controversy be “actual
[and] ongoing” extends throughout all stages of federal judicial
proceedings, including appellate review. Khodara Envtl., Inc. v.
Beckman, 237 F.3d 186, 193 (3d Cir. 2001). Hence, if a case
becomes moot after the District Court enters judgment, an
appellate court no longer has jurisdiction to review the matter on
appeal. Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40
L.Ed. 293 (1895). In other words, would the District Court’s
declaration “serve [any] purpose today[?]” Khodara, 237 F.3d
at 194.

The only issue raised by the Governor’s complaint and
addressed by the District Court’s opinion and order was the
legality of the Secretary’s recommendation to deactivate the

9
111 th Fighter Wing. “This action arises out of the Department
of Defense’s . . attempt. . .to deactivate the 111 th Fighter wing
. . .” App. at 75. The District Court’s order declares that “[t]he
portion of the [Secretary’s] report that recommends deactivation.
. . is null and void.” App at 54. However, neither the Secretary’s
recommendation nor the District Court’s declaration have any
vitality, nor would they “serve [any] purpose today.” Khodara
237 F.3d at 194. The Commission rejected the Secretary’s
recommendation. Indeed in its Report it stated that “[i]f the
Commonwealth of Pennsylvania decides to change the
organization, composition and location of the 111 th Fighter
Wing. . ., all personnel allotted to the 111 th Fighter Wing . . .
will remain in place and assume a mission relevant to the
security interests of [Pennsylvania].” Commission Report at 96-
97.

We conclude that there is simply no controversy
remaining here. Secretary Rumsfeld did not change anything –
nor was he empowered to do so. The recommendation he made
to the DBCRA to deactivate the 111 th Fighter Wing was not a
change; and not followed by the Commission or the President,
or was never considered by Congress. The Commission’s
Recommendations, the President’s Report, and Congress’
acquiescence have fully nullified Secretary Rumsfeld’s
recommendation, and rendered the District Court’s declaration
wholly unnecessary.

V.

Moreover, the Governor’s challenge does not fall within
any of the recognized exceptions to the mootness doctrine.

10
Under the “capable of repetition” exception, for example, a
court may exercise its jurisdiction and consider the merits of a
case that would otherwise be deemed moot when “(1) the
challenged action is, in its duration, too short to be fully litigated
prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to
the same action again.” Spencer v. Kemna, 523 U.S. 1, 17, 118
S.Ct. 978, 140 L.Ed.2d 43 (1998); see also In re Price, 370
F.3d 362, 381 (3d Cir. 2004) (Sloviter, J., dissenting). The
exception from the mootness doctrine for cases that are
technically moot but “capable of repetition, yet evading review”
is narrow and available “only in exceptional situations.” City of
Los Angeles v. Lyons, 461 U.S. 95, 109, (1983); Weinstein v.
Bradford, 423 U.S. 147, 148-49 (1975).

The Governor argues that the life of the Secretary’s
recommendation was really too short to be litigated before it
expired and thus, incapable of review. He may be right.
However, the duration of the life of the Secretary’s
recommendation is not significant because there is no
reasonable likelihood that the alleged harm will occur again to
the same complaining parties. See Belitskus v Pizzingrilli, 343
F.3d 632, 648 (3d Cir. 2003). The recently completed process
under the DBCRA was the final round of closures permitted by
the statute. Federal law no longer provides a mechanism for the
Secretary to repeat the alleged harm, nor does it even provide for
the continued existence of a Base Closure and Realignment
Commission. See DBCRA, § 2912(d)(4) (“the Commission
appointed under the authority of this subsection shall meet
during the calendar year 2005 and shall terminate on April 15,
2006.”). In Khodara, supra, we noted with approval the Fourth

11
Circuit Court of Appeals holding that “statutory changes that
discontinue a challenged practice are usually enough to render
a case moot, even if the legislature possesses the power to
reenact the statute after the law suit is dismissed.” Khodara,
237 F.3d at 194 (citing Valero Terrestrial Corp., v. Paige, 211
F.3d 112, 116 (4th Cir. 2002) (quoting Native Village of Noatak
v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994).

Further, we have clearly held that a party can rarely, if
ever, be injured by a proposed base closing before a decision is
made to close that base. Any actions of the Secretary of
Defense and the Commission before the President's decision are
merely preliminary in nature. Specter v. Garrett, 971 F.2d 936,
946 (3d Cir. 1992) vacated on other grounds 506 U.S. 969
(1992). Nothing has changed to alter the basic tenets of this
holding and it is controlling in this appeal. For the alleged harm
to occur again Congress would have to pass another law calling
for a new round of base closures; the new law would have to
give the Secretary a recommending role similar to the one at
issue here; and the new Secretary would again have to
recommend deactivating the 111 th Fighter Wing. It would be
speculation upon speculation were one to attempt a prediction
whether a future Congress may re-authorize another new
Commission; whether a new Secretary of Defense may
recommend that the 111 th Fighter Wing of the Pennsylvania
National Guard at Willow Grove be deactivated; or what a new
Base Closure Commission would do about it; and whether the
next President would thereafter approve deactivation. There is
simply no likelihood at all that this, or a future Governor of

12
Pennsylvania “will be subject to the same action again.”
Belitskus, 343 F.3d at 648.2

Nonetheless, a District Court’s judgment is vacated “only
where mootness has occurred through happenstance –
circumstances not attributable to the parties.” Arizonans for
Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct. 1055,
137 L.Ed.2d 170 (1997); New Jersey Turnpike Auth. v. Jersey
Cent. Power & Light, 772 F.2d 25, 26-27 (3d Cir. 1985). This
is known as the voluntary-cessation doctrine and is another
exception to mootness. “Mere voluntary cessation of allegedly
illegal conduct does not moot a case.” United States v.
Phosphate Export Ass’n, 393 U.S. 199, 203 (1968).

The reasons for this are patent and related to the “capable
of repetition yet evading review” exception. That is to say if we
were to hold such a case moot “the courts would be compelled
to leave the defendant free to return to his old ways.” Id.
Consequently, if the defendant ceases the harm, the case retains
vitality unless, “subsequent events ma[k]e it absolutely clear that
the allegedly wrongful behavior could not reasonably be

2. It is worth noting in the margin that during the pendency
of this appeal, Secretary Donald Rumsfeld has resigned and his
replacement confirmed by the Senate; Senator Santorum has
been defeated for reelection; control of the Congress that
enacted the expired DBCRA has shifted from Republican to
Democratic control; and, before a new Commission could be
activated, a new president will have been elected.

13
expected to recur.” Friends of the Earth v. Laidlaw Envtl.
Servs., 528 U.S. 167, 189 (2000).

The purpose of this exception is to prevent defendants
from “forever. . .avoid[ing] judicial review simply by ceasing
the challenged practice, only to resume it after the case [is]
dismissed.” Northeastern FL Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 676
(1993) (O’Connor, J., dissenting).

Here the only defendant is Secretary Rumsfeld, and he
has not voluntarily ceased anything. As noted, he made a
recommendation that was roundly rejected. The Commission,
the President, and Congress – all non-parties – have defused the
gravamen of the plaintiffs’ complaint and effectively nullified
the District Court’s declaratory order. Here, the voluntary-
cessation exception simply does not apply.

VI.

Because this case is moot, and no exceptions apply, we
must decide upon the appropriate remedy. The Supreme Court’s
decision in United States v. Munsingwear supplies the general
rule: “The established practice . . . in dealing with a civil case.
. . which has become moot while [under review] is to reverse or
vacate the judgment below and remand with a direction to
dismiss.” 340 U.S. at 39. The Munsingwear rule is an equitable
one that is “commonly used to prevent a judgment,
unreviewable because of mootness, from spawning any legal
consequences.” Donovan ex rel. Donovan v. Punxsutawney Area

14
School Bd., 336 F.3d 211, 217 (3d Cir. 2003) (citing
Munsingwear, 340 U.S. at 41).

Where as here, the case became moot through the
“vagaries of circumstance[s]” not attributable to the defendant,
Munsingwear controls, and the general rule of vacatur is
specifically indicated. U.S. Bancorp Mortgage Co., v. Bonner
Mall P’ship., 513 U.S. 18, 25 (1994). Therefore, we conclude
that this case meets the test for vacatur. Once again, we find our
decision in Khodara instructive. In Khodara, the case became
moot while on appeal because Congress repealed the challenged
law. We reasoned that legislative repeal of a challenged law did
not suggest either manipulation of the legal system, or an
attempt to erase an unfavorable precedent. Khodara 237 F.3d at
194-195. Like the Congressional repeal in Khodara, the
Commission here was fulfilling its statutory role — not
attempting to manipulate the system — and there is nothing on
this record to indicate that Congress was aware of the District
Court’s order. On balance, we conclude that it is most equitable
to “wipe the slate clean,” and eliminate the possibility of any
adverse legal consequences. See Munsingwear, 340 U.S. at 40
(stating vacatur “clears the path. . . and eliminates a judgment,
review of which was prevented through happenstance.”).

VII.

In summary, because this case is moot, we will VACATE
the District Court's February 7, 2005 order and REMAND the
cause to the District Court with instructions to dismiss the case
as moot.

15
SLOVITER, Circuit Judge, Dissenting.

If the issue before us were a dispute between individuals,
or between companies, or between one or more individual and
one or more company, I would join Judge Nygaard’s fine
opinion for the majority without hesitation. But the issue
underlying the dispute between Governor Rendell and the
Secretary of Defense is not confined to ordinary litigation. The
seeds of the difference between the parties goes back to the very
beginning of our existence as a nation, and it must be
understood in that context. I do not think it can or should be
resolved by the expedient of declining to consider the merits
under the rubric of mootness.

I.

History of the National Guard

The differences between the states and the federal
government, generally viewed as between the Federalists and
the Anti-Federalists, in the days before and after the ratification
of the Constitution that pervaded many of its provisions
extended as well to the manner in which the security of the new
nation should be ensured. Historians note that the Articles of
Confederation required the States to “always keep up a well

16
regulated and disciplined militia[.]” 3 Whereas the Constitution
gives Congress the power “[t]o raise and support Armies” 4 as
well as the power “[t]o provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as
may be employed in the Service or the United States,” the same
clause “reserves to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according
to the Authority of training the Militia according to the
discipline prescribed by Congress[.]” The “Militia” referred to
in the Constitution became, in time, the National Guard. Thus
it is evident that even at the very inception of this country and
despite the tensions between those favoring the national
government and those favoring the States in the contests
between them, there was general recognition of the role of the
states over what was to become the National Guard.

The history of the National Guard is long and complex.5
It has been detailed in the opinion of the Supreme Court in
Perpich v. Department of Defense, 496 U.S. 334, 340 (1990),
and I refer only to certain details of relevance to the case before

3. John K. Mahon, History of the Militia and the National
Guard 46 (Louis Morton ed., 1983) (quoting Article of
Confederation VI).

4. U.S. Const. art. I, § 8.

5. See, e.g., Mahon, supra note 1; Jerry Cooper, The Rise
of the National Guard, The Evolution of the American Militia,
1865-1920 (1997).

17
us. The earliest legislation, The Militia Act of 1792, contained
provisions with respect to the state militias and required annual
reporting by the State adjutant generals to the State governors
and the President.6 In 1901, after 111 years of inactivity,
Congress repealed The Militia Act and in 1903 it enacted The
Dick Act,7 which was designed to provide for a national reserve
force to be provided by what had come to be called the National
Guard. Significantly for our purpose, in the beginning there
could be no provision of federal arms or joint maneuvers with
the regulars unless and until the state governor requested such
aid and support.8
There were various amendments and recurring tensions
between the states and federal government regarding funding
and control over the National Guard, such as whether the
infusion of federal funds entitled the federal government the
right to call on the National Guard outside the United States (in

6. The history of the militias is discussed in a student
comment and casenote, Jason A. Coats, Base Closure and
Realignment: Federal Control Over the National Guard, 75 U.
Cin. L. Rev. 343, 347 (2006), which takes its historical material
primarily from two more objective sources, the treatises by
Mahon, supra note 1, and Cooper, supra note 3.

7. So named for Major General Charles Dick. Mahon,
supra note 1, at 139.

8. Id.

18
the anticipated conflict with Mexico).9 This persisted even after
the enactment of The National Defense Act of 1916.10

As noted in the Perpich opinion, the 1916 statute
provided that the Army of the United States was to include not
only “the Regular Army” but also the National Guard while in
the service of the United States. Perpich, 496 U.S. at 343-44.
The Court also noted that other issues were remedied by the
1933 amendments that created as “two overlapping but distinct
organizations” the National Guard of the various states and the
National Guard of the United States. Id. at 345 (internal
quotation marks omitted). What is now section 32 U.S.C. §
104(c) is the combined product of the National Defense Act of
1916 and the amendments enacted in 1933. Since the 1933
amendments there has been dual enlistment: any person enlisting

9. See Cooper, supra note 3, at 114-15.

10. Cooper describes the conflict as follows: “From the
Spanish-American War through 1915, Guardsmen sought
increased federal financial aid, statutory recognition as the
nation’s first-line reserve, and retention of their central role in
manpower policy. At the same time, they defended long-
established rights to select officers and organize units as they
saw fit and asserted a right to make military policy when it
affected the state soldiery.” Id. at 153.

19
in a State National Guard unit has simultaneously enlisted in the
National Guard of the United States.11 Perpich, 496 U.S. at 345.

I leap forward because the history of the National Guard
is of relevance to us only to the extent that it impacts on the
majority’s decision not to consider the merits of the position of
Governor Rendell that his statutory right to be consulted and
give consent to the closure of the National Guard base (or unit)
has been ignored.12 A 1977 statute that dealt with the closing or
realignment of military installations and its amendments was
superceded by the 1988 statute that established the Commission
on Base Realignment and Closure (“BRAC”).13 It fell to the
Secretary of Defense to implement the recommendations unless
Congress disapproved. The Defense Base Closure and

11. The holding in Perpich that “Congress may authorize the
President to order members of the National Guard to active duty
for purposes of training outside the United States during
peacetime without either the consent of a State Governor or the
denomination of a national emergency,” 496 U.S. at 336, is not
at issue here.

12. Military Construction Authorization Act, 1978, Pub. L.
No. 94-431, 90 Stat. 1349 (1977).

13. Defense Authorization Amendments and Base Closure
and Realignment Act, Pub. L. No. 100-526, 102 Stat. 2623
(codified as amended at 10 U.S.C. § 2687 (1998 & Supp.
2006)).

20
Realignment Act of 1990,14 (the “BRAC Act”) was designed “to
provide a fair process that will result in the timely closure and
realignment of military installations inside the United States.” 15
That Act was further amended in 2005, giving the BRAC a
significant role in reviewing the Secretary’s recommendations
for closure and realignment of facilities.16 Notably, however,
nothing in the BRAC Acts and the predecessor statutes
purported to amend or supercede the provision of 32 U.S.C. §
104(c) that provides that “no change in the branch, organization,
or allotment of a [National Guard] unit located entirely within
a State may be made without the approval of its governor.” 32
U.S.C. § 104(c) (emphasis added).

Pursuant to the BRAC Act, the Secretary of Defense,
after considering factors set forth in the statute,17 is required to

14. Defense Base Closure and Realignment Act of 1990,
Pub. L. No. 101-510, §§ 2901-11, 104 Stat. 1808 (portions
codified at 10 U.S.C. § 2687 note (1998)).

15. Id., 104 Stat. at 1808.

16. National Defense Authorization Act for Fiscal Year
2002, Pub. L. No. 107-107, §§ 3001-3006, 115 Stat. 1012, 1342-
51 (2001) (codified at 10 U.S.C. § 2687 note (Supp. 2006)).

17. The Act provides that the final selection criteria “to be
used by the Secretary in making recommendations for the
closure or realignment of military installations inside the United
States . . . shall be the military value and other criteria specified
(continued...)

21
submit to the BRAC Commission a list of military installations
within the United States that are recommended for closure or
realignment. Pub. L. No. 107-107, 115 Stat. at 1346. The Act
provides that “the Secretary shall consider any notice received
from a local government in the vicinity of a military installation
that the government would approve of the closure or
realignment of the installation.” Id.

“After receiving the recommendations from the Secretary
pursuant to subsection (c) for any year, the Commission shall
conduct public hearings on the recommendations.” Pub. L. No.
101-510, 104 Stat. at 1811. The BRAC Commission must
thereafter transmit its report, “containing its findings and
conclusions[ ] based on a review and analysis of the Secretary’s
recommendations” to the President. Pub. L. No. 107-107, 115
Stat. at 1346. The President is then required to prepare a report
containing his approval or disapproval of the Commission’s
recommendations. Id. at 1347. If the President disapproves the
Commission’s recommendations, the Commission may prepare
a revised list of recommendations and transmit those to the
President. Id. If the President disapproves the revised
recommendations, the BRAC process for 2005 is terminated.
Id. If the President approves either the original or revised
recommendations, he must send the approved list and a
certification of approval to Congress. Id. If Congress does not
enact a resolution disapproving the approved recommendations
within 45 days after receiving the President’s certification of

17. (...continued)
in subsections (b) and (c).”

22
approval, the Secretary must carry out all of the
recommendations. Pub. L. No. 101-510, 104 Stat. at 1812.

II.

The Present Action

The action before us was filed by Edward G. Rendell,
Governor of the Commonwealth of Pennsylvania, and
Pennsylvania’s two senators, Arlen Specter, and Rick Santorum,
challenging the legality of the recommendation made by the
then- Secretary of Defense Rumsfeld to the BRAC Commission
(the “BRAC DoD Report”). The essence of the lawsuit is
described in the excellent detailed opinion of District Judge
John Padova of the Eastern District of Pennsylvania. Because
Judge Padova’s opinion is not reported in the West Reporter
system and is available only on online services, I quote from it
in more detail than would be usual. Judge Padova explained:

In the BRAC DoD Report, Secretary Rumsfeld
recommended that the Naval Air Station Joint Reserve
Base Willow Grove, Pennsylvania, be closed. In
connection with this closure, he recommended that “all
Navy and Marine Corps squadrons, their aircraft and
necessary personnel, equipment and support” be
relocated to McGuire Air Force Base, Cookstown, New
Jersey. He further recommended that the Pennsylvania
Air National Guard’s 111th Fighter Wing, which is
stationed at the Willow Grove Naval Air Station, be
deactivated and that half of its assigned A-10 aircraft be

23
relocated to different Air National Guard units in Idaho,
Maryland and Michigan, while the remainder of the
aircraft be retired.

The 111th Fighter Wing is an operational flying National
Guard unit located entirely within the Commonwealth of
Pennsylvania with 1023 military positions. Deactivation
of the 111th Fighter Wing would deprive the Governor
of nearly 1/4th the total strength of the Pennsylvania Air
National Guard and would deprive the Governor and
Commonwealth of a key unit with the current capability
of addressing homeland security missions in
Southeastern Pennsylvania. Deactivation of the 111th
Fighter Wing would be the ultimate change in the
branch, organization or allotment of the unit. In May
2005, and at all times subsequent to Secretary
Rumsfeld’s transmittal of the BRAC DoD Report to the
Defense Base Closure and Realignment Commission (the
“BRAC Commission”), “the overwhelming majority of
the 111th Fighter Wing was not and currently is not in
active federal service.”

Neither Secretary Rumsfeld nor any authorized
representative of the Department of Defense requested
Governor Rendell's approval to change the branch,
organization, or allotment of the 111th Fighter Wing, or
requested Governor Rendell's consent to relocate or
withdraw the 111th Fighter Wing during the 2005 BRAC
process. Governor Rendell sent a letter to Secretary
Rumsfeld on May 26, 2005, officially advising the
Secretary that he did not consent to the deactivation,

24
 relocation or withdrawal of the 111th Fighter Wing.
Deputy Assistant Secretary of the Air Force Gerald F.
Pease, Jr. replied to the Governor's letter on July 11,
2005, but did not address the Secretary's failure to obtain
the Governor's prior consent to the recommendation that
the 111th Fighter Wing be deactivated.

2005 WL 2050295, at *1-2 (E.D. Pa. Aug. 26, 2005) (footnote
omitted) (internal citations omitted).

The District Court considered and rejected the arguments
by the Secretary in support of dismissal of the complaint. In
response to the Secretary’s argument that Governor Rendell did
not have standing because he had not suffered an imminent
injury that is concrete, the District Court stated:

In this case, assuming that the Governor is correct about
the merits of his claim, he had the statutory right to
disapprove changes to the branch, organization or
allotment of a unit of the National Guard located wholly
within the Commonwealth, and his disapproval would
have been sufficient to prevent the deactivation
recommendation from going to the BRAC Commission.
His right to prior approval or disapproval has, however,
been completely nullified by the Secretary's
recommendation. We find that the injury suffered by the
Governor is the type of concrete and particularized injury
contemplated by Coleman [v. Miller, 307 U.S. 433
(1939)]. We further find that this injury is, in fact,
traceable to the Secretary's recommendation to deactivate
the 111th Fighter Wing and that this injury may be

25
 redressed by the requested relief, i.e., an order declaring
that Secretary Rumsfeld has violated federal law by
designating the 111th Fighter Wing for deactivation
without first obtaining the approval of Governor Rendell
and an order declaring that the portion of the BRAC DoD
Report that recommends deactivation of the 111th
Fighter Wing is null and void. Accordingly, we find that
Governor Rendell has standing to assert the claims
alleged in the Complaint.

Id. at *9 (internal citations omitted).

In response to the Secretary’s assertion that the claims
asserted in the complaint are not ripe, the District Court
analyzed the three factors relevant to a ripeness determination:
the adversity of the parties’ interest, the conclusiveness of the
judgment, and the utility of the judgment. Id. at *10. As to
adversity, the Court stated that “Governor Rendell suffered an
injury in fact with respect to the derogation of his statutory
power to consent to or to disapprove changes to the branch,
organization or allotment of a unit of the National Guard located
wholly within the Commonwealth,” id., and found that the
adversity prong is satisfied. With respect to the conclusiveness
inquiry, the District Court stated:

No party disputes that the 111th Fighter Wing is a unit of
the Pennsylvania Air National Guard; that it is presently
under state control; that the Secretary recommended
deactivation of the 111th Fighter Wing in his Report to
the BRAC Commission; and that he did not seek or
obtain Governor Rendell's prior approval to do so. The

26
 claims asserted in the Complaint present solely legal
issues, obviating the need for future factual development.
A declaratory judgment would conclusively determine
whether the Secretary of Defense can legally recommend
deactivating the 111th Fighter Wing without Governor
Rendell’s prior approval. We find, accordingly, that the
conclusiveness prong is satisfied in this case.

Id.

Finally, the Court turned to the utility inquiry and
concluded:

The utility inquiry focuses on the hardship to the parties
of withholding decision and whether the claim involves
uncertain and contingent events. In determining utility,
the Court examines “whether the parties’ plans of actions
are likely to be affected by a declaratory judgment.
Governor Rendell is the commander-in-chief of the
Pennsylvania National Guard, including 111th Fighter
Wing. 51 Pa. Cons. Stat. Ann. § 501. As commander-in-
chief, the Governor has the power to accept allotments of
military personnel and equipment from the Department
of Defense for the Pennsylvania National Guard; carry
out training of the Pennsylvania National Guard;
establish the location of any assigned, authorized units of
the Pennsylvania National Guard; organize or reorganize
any organization or unit of the Pennsylvania National
Guard; and place the Pennsylvania National Guard on
active duty during an emergency in this Commonwealth.
51 Pa. Cons. Stat. Ann. §§ 502-505, 508. A declaratory

27
 judgment determining the legality of the Secretary’s
recommendation to deactivate the 111th Fighter Wing–a
unit that constitutes 1/4 of the personnel of the
Pennsylvania Air National Guard–clearly would effect
the Governor’s ability to carry out his powers as
commander-in-chief, particularly his ability to call
members of the 111th Fighter Wing to active duty in the
case of an emergency in this Commonwealth. We find,
therefore, that the utility prong is satisfied in this case.

Id. at *11.

Having rejected the Secretary’s motion to dismiss on the
grounds referred to above, the District Court then considered the
application of Dalton v. Specter, 511 U.S. 462, 466 (1994),
where the Supreme Court rejected a challenge to the President’s
decision, pursuant to the 1990 BRAC Act, to close the
Philadelphia Naval Shipyard. The District Court held that
Dalton did not bar Governor Rendell’s action because, unlike
the complaint in Dalton, the complaint by Governor Rendell was
not brought pursuant to the Administrative Procedure Act.
Rendell v. Rumsfeld, 2005 WL 2050295, at *11. The District
Court then turned to the concurring opinion in Dalton written by
Justice Souter which essentially concluded that “the text,
structure, and purpose of the Act” manifest that the Act
forecloses judicial review. Id. at *13; Dalton, 511 U.S. at 479.
The District Court differentiated the issue in Dalton from that
before it, stating:

The Secretary’s recommendation to close the Willow
Grove Naval Air Station has not been challenged in this

28
 lawsuit. What has been challenged is the legality of his
further recommendation that the 111th Fighter Wing be
deactivated. The parties have pointed to nothing in the
express language, structure, objectives, or legislative
history of the laws pursuant to which this case has been
brought that prohibits judicial review. Accordingly, we
find that the structure, objectives, and legislative history
of the BRAC Act do not prohibit judicial review of the
legality of the Secretary’s recommendation to deactivate
the 111th Fighter Wing.

Rendell v. Rumsfeld, 2005 WL 2050295, at *14. After
considering the merits of the complaint on the opposing motions
for summary judgment, the District Court granted the
Commonwealth’s motion for declaratory judgment and held as
follows:

a. Secretary Rumsfeld, by designating [for deactivation]
the 111th Fighter Wing of the Pennsylvania Air
National Guard without first obtaining the approval of
Governor Rendell, has violated 32 U.S.C. § 104(c).

b. The portion of the BRAC DoD Report that
recommends deactivation of the 111th Fighter Wing
of the Pennsylvania Air National Guard is null and
void.

Id. at *21-22.

There are many issues decided by the District Court that
merit appellate review. Unfortunately, the majority opinion

29
does not discuss them. Instead, it has chosen to grant the
Secretary’s motion to dismiss this appeal on the basis of
mootness. The majority holds that because the Commission
voted to strike from the Secretary’s recommendation the
deactivation of the 111th Fighter Wing (Air National Guard) and
the relocation of the assigned aircraft elsewhere, which
recommendation was approved by the President without
rejection by Congress, thereby becoming law, the case is now
moot. The majority states that in light of those events, the
District Court’s declaration that the “portion of the [Secretary’s]
report that recommends deactivation of the 111th Fighter Wing
of the Pennsylvania Air National Guard is null and void” is
“wholly unnecessary.” Maj. Op. at 15.

The majority recognizes that one of the principal
exceptions to the mootness doctrine is the one covering the
situation when the issue is “capable of repetition, yet evading
review.” The majority holds that exception is inapplicable here
because “there is no reasonable likelihood that the alleged harm
will occur again.” Maj. Op. at 17. The majority reasons that the
harm was that of the Secretary’s recommendation with respect
to base closings, a harm that cannot recur unless Congress were
to pass another statute calling for a new round of base closures
with procedures similar to those in the statute leading to the
Secretary’s recommendation to deactivate the 111th Fighter
Wing. I am not as sanguine as the majority that there will be no
decision in the near future to reconsider where military bases
should be placed or replaced in light of the uncertain world

30
situation and the deployment of National Guard Units to combat
zones.18

III.

The Issue on Appeal

In response to the Secretary’s argument that the matter
before us is moot, Governor Rendell argues that by including in
the recommendation to the BRAC Commission the removal of
all of the 111th Fighter Wing’s aircraft, a recommendation that
was untouched when the BRAC Commission forwarded the
recommendation to the President, the result would be the
constructive deactivation of the 111th Fighter Wing. Therefore,
argues the Governor, the matter is not moot because if the 111th

18. Moreover, I note that Governor Rendell’s affidavit states
that the Department of the Navy has issued two Notices of
Availability of Navy Real Property, one on November 15, 2005
and the other on January 17, 2006, which included all of the real
property at Willow Grove as available for acquisition by the
other federal agencies. Despite the BRAC requirement that an
enclave be established for the 111th sufficient to support flight
operations, the second Notice stated that if there was no interest
by a federal agency, the property would be available for private
development. The Department of the Navy also notified the
Governor’s staff that, notwithstanding the enclave requirement,
the Navy believed that there was no need to keep the airfield
because the A-10 aircraft assigned to the 111th would be taken
away. See Rendell Aff. ¶¶ 3-7.

31
aircraft were taken without replacing the allotted planes, the unit
would be made inactive and ineffective.

I, for one, have had some difficulty understanding the
Governor’s position on this appeal with respect to the aircraft.
On one hand, the Governor appears to have disclaimed any
challenge to the movement of the aircraft or to the actions of the
Commission on this appeal. When questioned about that at oral
argument the Governor’s counsel stated that the effect of the
removal of the aircraft would be that the “mission” of the 111th
Fighter Wing would be taken away. Tr. at 22-23. Counsel later
stated “[w]e’re challenging not the taking away of these
particular planes but the taking away of planes for all time.
We’re taking away their ability to fly, if you can understand it
that way[.]” Tr. at 24. Counsel for the Governor stated that the
final documents signed by the President contained, inter alia, the
recommendation to “[d]istribute the 15 A-10 aircraft assigned to
[the] 111th Fighter Wing. And it goes on to say that they
[would] be distributed to various other locations, Boise Air
Terminal Air Guard Station, Martin State Airport Air Guard
Station, and so on.” Tr. at 24-25. I find it difficult to reconcile
that argument with the Governor’s failure to raise the
distribution of the aircraft in the District Court.

However, I look at the issue in this case as a broader one
than that identified by the majority. I understand Governor
Rendell to have challenged the Secretary’s action because the
Secretary failed to follow the requirement of 32 U.S.C. § 104(c)
to seek and await the Governor’s approval to any “change in the
branch, organization, or allotment of a [National Guard] unit
located entirely within [the Commonwealth.]” That challenge

32
is made clear and patent in the Governor’s brief on appeal and
in the oral argument made by the Governor’s counsel. Counsel
for the Secretary parried our inquiry. He argued, alternately,
that the Governor’s challenge was initially made at a time when
it was not ripe, as all the Secretary had done was make a
recommendation to the Commission. He later argued that a
challenge made after the President approved the Commission’s
recommendation and sent it to Congress could not be heard
under the precedent of Dalton v. Specter, 511 U.S. 462 (1994).
Finally, in response to this court’s persistent questions on that
issue, counsel for the Secretary finally conceded that “we
believe, that there is no judicial review.” Tr. at 40.

I dissent from the majority’s decision because it evades
deciding whether § 104(c) retains any effect. The District Court
held that the Governor’s right to prior approval or disapproval
has been “completely nullified by the Secretary’s
recommendation.” Rendell v. Rumsfeld, 2005 WL 2050295, at
*9. The Secretary argues that “[a]dding a gubernatorial consent
requirement (drawn from § 104(c)) would interfere with the
Base Closure Act[.]” Govt’s Br. at 29-30. The Governor
responds that the Base Closure Act expressly superseded some
federal statutes relating to base closings, but contains no such
provision with respect to the gubernatorial consent statutes.

I have reached no decision with respect to the conflicting
arguments but it is a significant issue, one between the rights of
the states and the federal government harkening back to the very
foundation of our government. Concededly, the Governor’s
obligation to provide for the civil defense of the people and
property of Pennsylvania in this era of threats to the homeland

33
may require calling on the National Guard. I dissent from the
majority’s choice not to consider the merits of this issue. To
paraphrase Rabbi Hillel, “if not now, when?”

34