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COUNTY OF SENECA v. CHENEY

November 9, 1992

COUNTY OF SENECA, SAVE OUR SENECA, KEEP OUR BASE IN ROMULUS ALIVE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2546, and SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY, Plaintiffs,
v.
RICHARD CHENEY, as the Secretary of Defense, MICHAEL STONE, as the Secretary of the Army, and SUSAN LIVINGSTONE, Assistant Secretary of the Army, Defendants.



The opinion of the court was delivered by: DAVID G. LARIMER

 Agencies of the Government -- just like ordinary citizens -- must comply with the law regardless of whether it is inconvenient or burdensome to do so. Because I believe that the Secretary of the Army and the Secretary of Defense acted contrary to a statute recently passed by Congress governing the closure or realignment of military installations, I hereby issue an injunction in order to guarantee compliance with the law.

 This is an action for declaratory and injunctive relief involving claims under the Defense Base Closure and Realignment Act of 1990 ("BRAC"), Pub. L. 101-510, 104 Stat. 1808, the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702 & 706(2), and the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiffs *fn1" seek to enjoin the Secretary of Defense and the Secretary of the Army (sometimes collectively "the Secretary") from taking any actions in connection with the elimination and reduction of missions or functions at the Seneca Army Depot ("SEAD" or "the base") in Romulus, New York that would result in the elimination of hundreds of civilian positions at the base.

 This action was precipitated by the Secretary's decision to change the nature of the work performed at SEAD. This change by any analysis is a major one which would eliminate approximately 70 percent of the authorized civilian positions at the base. Plaintiffs seek to enjoin this unilateral action by the Secretary on the grounds that the defendants acted in violation of BRAC and NEPA. In essence, plaintiffs claim that the Secretary is "realigning" SEAD without complying with the rigid procedures established by Congress in BRAC for the closure or realignment of military installations.

 Defendants oppose this action on the grounds that their actions are not subject to judicial review, and, alternatively, that BRAC and NEPA do not apply to the actions occurring at SEAD. Pending before me now is plaintiffs' motion for preliminary injunctive relief under Fed.R.Civ.P. 65.

 For the reasons discussed below, plaintiffs' motion is granted and a preliminary injunction will issue to bar the Army and the Department of Defense from carrying out the reductions at SEAD.

 HISTORY OF SEAD

 SEAD, which was built in 1941 and known originally as the Seneca Ordnance Depot, is an Army depot under the command of the Depot System Command ("DESCOM"), one of the subordinate commands of the Army Material Command ("AMC"). DESCOM is responsible for all the Army depots in the United States and abroad, and AMC is the major Army command responsible for the research, development, acquisition, and logistics for Army material. Historically, SEAD has had two primary missions or functions relating to: (1) special weapons; and (2) the rehabilitation of industrial plant equipment ("IPE"). The special weapons mission required SEAD to store, issue, maintain, and supply special weapons, such as ground-launched nuclear missiles and nuclear artillery shells, *fn2" and conventional munitions, including bullets, bombs, and shells. There are 442 civilian and 387 military personnel positions associated with this mission. The IPE rehabilitation mission required SEAD to maintain and store industrial equipment, which consists, generally, of large machine tools used by the Department of Defense ("DOD") industrial organizations and contractors, including depots, arsenals and ammunition plants. There are 143 civilian personnel positions associated with this mission. In addition, the 833d Ordnance Company, a munitions maintenance unit, was a tenant organization stationed at SEAD.

 Between 1990 and 1991, the DOD and the Army made several decisions that were intended to restructure SEAD. First, in 1990, the DOD planned a gradual reduction in its special weapons that was to start in 1991 and end in 1998. In March 1991, DOD determined the number of special weapons that it wanted to retain. Based on this determination, the Army concluded that its depot system's special weapons missions should be reduced accordingly. AMC therefore ordered DESCOM to design a plan to consolidate the Army's special weapons mission at a single site. The report submitted by DESCOM recommended the consolidation and storage of special weapons at a depot other than SEAD.

 Finally, the 833d Ordnance Company was scheduled to be inactivated on September 14, 1992. The inactivation was expected to result in the loss of approximately 75 military positions at SEAD.

 In light of the proposed actions, on August 27, 1991, AMC directed DESCOM to conduct a study under Army Regulation ("AR") 5-10, which specified the procedures that had to be followed and the documentation that would be required before the Army reduced its civilian employment by 50 persons or 10%, whichever was less. The study's focus was on the DESCOM missions and workloads that would be affected by a reduced special weapons mission, a consolidation of IPE rehabilitation work, and the inactivation of the 833d Ordnance Company. A study team was subsequently organized to begin collecting data.

 Not long after the study began, however, President George Bush made a significant announcement concerning this country's use of nuclear weapons. This announcement, which reflected historic international agreements with the Soviet Union, would have significant impact on this country's arsenal of nuclear weapons. President Bush announced "a series of sweeping initiatives affecting every aspect of our nuclear forces on land, on ships, and on aircraft." Defendants' Memorandum in Opposition to Plaintiffs' Motion ("Defendants' Mem.") at 13 (quoting Address to the Nation on Reducing U.S. and Soviet Nuclear Weapons (Weekly Comp. Pres. Doc.) 1346, 1349 (Sept. 27, 1991)). As part of these initiatives President Bush directed that "the United States eliminate its entire worldwide inventory of ground-launched . . . nuclear weapons." Id. (alterations in original).

 Following President Bush's announcement, defendant Richard Cheney, the Secretary of Defense, in a memorandum dated September 28, 1991, directed the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretaries of Defense and Assistant Secretary of Defense for Command, Control Communications and Intelligence to implement the President's decision. The memorandum ordered that the following actions be completed as soon as possible:

 1. The United States armed forces shall eliminate its inventory of ground-launched theater nuclear weapons.

 2. Tactical nuclear weapons shall be removed from all surface ships, attack submarines, and land-based naval aircraft bases.

 3. United States strategic bombers shall stand down from their alert postures and their nuclear weapons shall be removed and stored in secure areas.

 4. The United States intercontinental ballistic missiles scheduled for deactivation under the terms of the Strategic Arms Reduction Treaty shall stand down from alert.

 5. Development of the mobile Peacekeeper ICBM rail garrison system and the mobile portions of the small ICBM program shall be terminated.

 6. The nuclear short-range attack missile program (SRAM-II) shall be terminated.

 7. A unified Command Plan with a United states strategic Command to which all elements of the U.S. strategic deterrent are to be assigned shall be submitted to [the Secretary].

 Declaration of Robert O. Frantz, Ex. A.

 As a result of the President's announcement and the Secretary's implementing directives, the prior decisions concerning the realignment of SEAD's special weapons mission were scrapped. It was then determined, according to defendants, that rather than "realign" the special weapons mission, the mission or function was to be eliminated completely. Consequently, AMC ordered DESCOM to change the focus of the AR 5-10 study that had been ordered earlier to account for this change concerning the special weapons mission at SEAD.

 DESC0M's study team submitted a preliminary AR 5-10 report on October 31, 1991. According to defendants, AMC found that the report was not properly conducted according to Army regulations. Consequently, AMC compiled additional information and performed further analysis to ensure that the final report conformed to all AR 5-10 requirements.

 Defendants claim that as part of this analysis, AMC's Base Realignment and Closure Office analyzed whether BRAC procedures had to be followed. The decision was that BRAC did not apply to the proposed actions for SEAD. AMC subsequently completed the AR 5-10 report and submitted it to the Army on December 16, 1991.

 The Army reviewed the final report and performed additional analysis. It concurred in the report's findings and recommendations. In addition, according to defendants, Congressman Frank Horton of New York requested that the General Accounting Office ("GAO") review the Army's proposals concerning SEAD before a final decision was made. The GAO reviewed the proposal and, allegedly, concurred with it.

 On July 2, 1992, the Secretary of the Army approved the recommendations which changed the functions and missions of the base, with the resulting immediate termination of approximately 560 civilian employees. The Army's plan included the elimination of the special weapons mission at SEAD and a large-scale reduction and relocation of the IPE rehabilitation function. The elimination of the special weapons mission resulted in the elimination of 442 civilian and 387 military positions at SEAD. In addition, SEAD was scheduled to be downgraded from a "depot" to a "depot activity." According to plaintiffs, as a result of this downsizing, the number of civilian personnel authorized at SEAD will drop from 847 to 285 -- a reduction of nearly 70 percent -- and the number of military employees will drop from 487 to 3.

 Also on July 2, 1992, defendant Susan Livingstone, an Assistant Secretary of the Army, briefed a delegation of New York Congressmen on the AR 5-10 study and the Army's plans to eliminate civilian positions at SEAD. The Army also advised SEAD civilian employees of their rights under reduction-in-force ("RIF") procedures, and it notified those employees who would be adversely affected by the RIFs of their entitlement to participate in the Priority Placement Program ("PPP"), *fn3" and voluntary assistance programs. In addition, the Army obtained approval to allow early retirements under the Voluntary Early Retirement Authority ("VERA"), and communities affected by a RIF would be allowed to participate in a number of assistance programs sponsored by the federal government.

 According to defendants, as of June 30, 1992, the movement of all special weapons from Europe was complete, and as of July 30, 1992, the special weapons storage mission of SEAD was eliminated. The Army is currently in the process of phasing out military positions associated with SEAD's special weapons mission.

 PROCEDURAL HISTORY

 Plaintiffs commenced this action and moved for a preliminary injunction by an Order to Show Cause on September 9, 1992. Oral argument on plaintiffs' motion was held on October 1, 1992. Then, on October 6, 1992, President Bush signed into law the 1993 Defense Appropriations Act ("Appropriations Act"). Pub.L.No. 102-396 (1992). The Senate Report that accompanied the Appropriations Act, S.Rep.No. 408, 102d Cong., 2d Sess. 40 (1992), contained the following language concerning the Army's actions at Seneca:

 The joint Conference Report, however, did not contain any language about SEAD, nor did the Appropriations Act itself. The parties were directed to brief the issue as to whether the language in the Senate Report had any effect on the pending litigation.

 On October 9, 1992, apparently in response to the language in the Senate Report, defendant Michael Stone, Secretary of the Army, issued a press release declaring that the civilian reductions-in-force scheduled to be effective at SEAD on November 13, 1992 instead would be effective no earlier than February 11, 1993. *fn4" The Court held argument after issuance of the press release to clarify its ramifications.

 Defendants' counsel confirmed that the RIF would be postponed to a date no earlier than February 11, 1993, and that the time within which to select early retirement would be similarly postponed, although no exact date for selection was set. Defendants also asserted that participation in the PPP could not be postponed or deadlines extended for those who elected to participate because the program was in effect nationwide and employees at SEAD could not be given a preference.

 DISCUSSION

 1. Contentions of the Parties.

 Plaintiffs claim in this action that defendants cannot reduce the civilian work force at SEAD on such a large scale without following the process and procedures established by BRAC.

 Plaintiffs also contend that even if defendants were not bound by BRAC, their actions were still improper because they failed to comply with the requirements of NEPA. Specifically, plaintiffs contend that defendants were required to assess and study the impact their actions would have on the human environment and were obligated to mitigate such impact.

 Defendants, in response, contend that their actions are not subject to judicial review. Specifically, defendants contend that their decision that the provisions of BRAC do not apply, and the decisions taken as a result of that are not subject to judicial review because such review would unduly interfere with the duties and responsibilities of the President as Commander-In-Chief. Therefore, the defendants argue, this action presents a nonjusticiable political question. Defendants further contend that Congress intended to preclude judicial review in the circumstances that exist here.

 On the merits, defendants contend that their determination that BRAC does not apply is clearly correct because the reductions do not fit within the statutory requirements or are exempt under BRAC's provisions.

 Therefore, defendants contend that plaintiffs have failed to satisfy the requirements for obtaining a preliminary injunction.

 2. History Of The Base Closure And Realignment Process

 In 1990, in response to the need for a fair and timely process for closing and realigning military installations, Congress enacted BRAC. BRAC is the latest in a series of congressional attempts to regulate the complete or partial closure of military installations. It is the interpretation of BRAC that is at the heart of the dispute between the parties.

 Congress's first legislative attempt to permanently regulate the process occurred in 1977, when it enacted 10 U.S.C. § 2687. At that time, section 2687 prohibited the Secretary of Defense from closing or realigning any military installation, unless he first: (1) notified the Senate and House Armed Services Committees of the installations selected for closure or realignment; and (2) submitted to those committees an evaluation of the consequences of the closure or realignment. The Secretary had to wait at least 60 days before taking action on the closures, during which time Congress could act to prevent the closure or realignment. Congress enacted this provision, in part, because many Congressmen had come to believe that the Executive branch was using its base-closure power to punish uncooperative legislators. See 1991 Defense Base Closure and Realignment Commission Report to the President (hereinafter "1991 Commission Report") at 1-1. Under the 1977 version of section 2687, however, no bases were closed for the next eleven years.

 Because of the deadlock created by section 2687, Congress, in 1988, enacted the Defense Authorization Amendments and Base Closure and Realignment Act of 1988, Pub. L. 100-526, 102 Stat. 2623 (1988) (the "1988 Act"), the immediate predecessor to BRAC. Under the 1988 Act, the Secretary of Defense no longer had the power to unilaterally choose which bases to close or realign. Instead, that power was vested in an independent commission that was to recommend bases for closure and realignment, and present those recommendations to the Secretary to either accept or reject the entire list of bases selected. If the Secretary approved the recommendations, Congress had 45 days within which to overrule the Secretary and reject the base closure recommendations.

 The 1988 Act, however, did not establish a permanent process for closing or realigning military installations. Rather, it created a one-time exception to the process created in 1977 by section 2687.

 In 1990, the Secretary of Defense proposed another round of closures. The Secretary's recommendations, however, raised some suspicions in Congress "about the integrity of the base closure selection process." H.R.Conf.Rep.No. 923, 101st Cong., 2d Sess. 705, reprinted in 1990 U.S.C.C.A.N. 3110, 3257. In fact, the House Report went so far as to note that "Secretary Cheney's announcement of candidates for base closure on January 29, 1990, was an example of the wrong way to close bases." H.Rep.No. 665, 101st Cong, 2d Sess. 341-42, reprinted in 1990 U.S.C.C.A.N. 3067.

 As a result, Congress enacted BRAC in 1990. Its stated purpose was "to provide a fair process that will result in the timely closure and realignment of military installations in the United States." BRAC § 2901(b). Under BRAC, there are scheduled to be three rounds of base closures and realignments, commencing in the years 1991, 1993, and 1995.

 The procedure for closure and realignment are similar to the procedures created in the 1988 Act. An independent commission is required to convene in the years scheduled for base closures, and it is to review a list of installations that the Secretary has recommended for closure or realignment. In addition, the Secretary is required to submit to Congress and the Commission, for the fiscal years 1992, 1994, and 1996, a six-year force structure plan based on the assessment of probable threats to national security. § 2903(a). The Secretary is also required to publish in the Federal Register, for public notice and comment, criteria to be used by DOD in making its recommendations for base closure or realignment. § 2903(b).

 Once the Commission receives the recommendations of the Secretary, it is required to conduct public hearings. § 2903(d)(1). The Commission can deviate from the recommendations of the Secretary if the Secretary's proposal deviates from the force structure plan, and the Secretary's final criteria. § 2903 (d)(2)(B). The Commission must then transmit its recommendations, along with a report explaining the recommendations that differ from those proposed by the Secretary, to the President for his review. §§ 2903(d)(2)(A) & (d)(3).

 The President must then transmit to the Commission his report either accepting or rejecting, in whole or in part, the Commission's recommendations. § 2903(e)(1). If the President approves the Commission's recommendations, he must also transmit to Congress a copy of the recommendations. § 2903(e)(2). If the President disapproves the recommendations, the Commission must then submit a revised recommendation to the President for his consideration. § 2903(e)(3).

 If the President approves the revised list, he must transmit a copy of the revised recommendations to Congress. § 2903(e)(4). If the President fails to send his list of recommended base closures to Congress by September 1 of any year in which the Commission sent him recommendations for closure, the base closure process for that year is terminated and no bases may be closed. § 2903(e)(5).

 Also, the Secretary may not carry out any closure or realignment recommended by the Commission if Congress enacts, within 45 days after the President transmitted the recommendations to it, a joint resolution disapproving such recommendations. § 2904(b).

 BRAC, like the 1988 Act, contains a provision exempting the participants in the BRAC process from the requirements of NEPA. BRAC provides that:

 The provisions of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to the actions of the President, the Commission, and except as provided in paragraph (2), the Department of Defense in carrying out this part."

 § 2905(c)(1). The exception referenced in the above section provides that:

 The provisions of the National Environmental Policy Act of 1969 shall apply to actions of the [DOD] under this part (i) during the process of property disposal, and (ii) during the process of relocating functions from military installation being closed or realigned to another military installation after the receiving installation has been selected but before the functions are relocated.

 § 2905(c)(2)(A).

 The base closure and realignment process under BRAC for 1991 began in April, 1991, when the Secretary submitted to the Commission his list of military installations that he recommended should be closed or realigned. SEAD was not one of the installations on the Secretary's list. After the Secretary's recommendations were reviewed by the Commission, it transmitted its list of bases recommended for closure or realignment to President Bush, who approved all the recommendations. SEAD was not included in this list either. A proposal to disapprove the Commission's recommendations was ...


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