Blagojevich, Rod v. Gates, Robert M. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3031
ROD BLAGOJEVICH, Governor of Illinois,
Plaintiff-Appellant,
v.
ROBERT M. GATES, Secretary of Defense, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05-3190—Jeanne E. Scott, Judge.
____________
SUBMITTED FEBRUARY 26, 2008—DECIDED MARCH 11, 2008
____________
Before EASTERBROOK, Chief Judge, and ROVNER and SYKES,
Circuit Judges.
EASTERBROOK, Chief Judge. In this suit, now pending
for more than two years, the Governor of Illinois con-
tends that a decision to move some planes assigned to the
183rd Fighter Wing of the Air National Guard from a
base in Illinois to one in Indiana violates the rule that
“no change in the branch, organization, or allotment of a
unit [of the National Guard] located entirely within a
State may be made without the approval of its governor.”
2 No. 07-3031
32 U.S.C. §104(c). See also 10 U.S.C. §18238 (“A unit of . . .
the Air National Guard of the United States may not be
relocated or withdrawn under this chapter without the
consent of the governor of the State”). The Secretary of
Defense, the principal defendant in this suit, contends
that actions implementing a report of the Defense Base
Closure and Realignment Commission do not require
gubernatorial approval.
The district court initially dismissed the suit for want
of standing. After a series of appellate proceedings that
need not be recounted, we reversed and remanded for
what we supposed would be a decision on the merits.
Blagojevich v. Rumsfeld, No. 05-3595 (7th Cir. Nov. 1, 2006)
(unpublished order). But on remand the district court
raised, sua sponte, what it deemed another jurisdictional
issue: Whether the United States has waived its sover-
eign immunity. The court gave a negative answer and
again dismissed the suit without reaching the merits. The
Governor has filed another appeal.
The district court’s justification for raising this subject
on its own is that every court must ensure the presence
of subject-matter jurisdiction, whether or not the parties
agree that the case is properly in federal court. That’s true
enough, but we have held that sovereign immunity does
not diminish a court’s subject-matter jurisdiction. See
United States v. Cook County, 167 F.3d 381 (7th Cir. 1999).
The ability of governments to waive the benefit of sover-
eign immunity demonstrates that the doctrine is non-
jurisdictional, see Lapides v. University of Georgia, 535 U.S.
613 (2002), for real jurisdictional limits can’t be waived.
Sovereign immunity concerns the remedy rather than
adjudicatory competence.
No. 07-3031 3
Jurisdiction is secure under 28 U.S.C. §1331 and
§1346(a)(2)—the former because the Governor’s claim
arises under federal law, and the latter because the fed-
eral government is the defendant and the suit does not
seek the kind of monetary damages that allocate pro-
ceedings to the Court of Federal Claims. There was no
need to raise a sovereign-immunity defense that the
United States had not asserted on its own behalf. Now
that the district court has dismissed the suit, however,
the federal officials have embraced its conclusion, so
we must address the subject.
Congress has waived sovereign immunity for most
forms of prospective relief: “An action in a court of the
United States seeking relief other than money damages
and stating a claim that an agency or an officer or em-
ployee thereof acted or failed to act in an official capacity
or under color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is against
the United States or that the United States is an indispens-
able party.” 5 U.S.C. §702. The district court recognized
that this statute waives immunity from the sort of relief
that the Governor seeks but stated that it is inapplicable
because the Governor has not requested judicial review
under the Administrative Procedure Act.
Yet §702 does not say that it covers only claims
reviewable through the APA. In Bowen v. Massachusetts,
487 U.S. 879 (1988), the Supreme Court treated §702 as
generally applicable. The claim in Bowen v. Massachusetts
had been advanced under the Medicaid Act, which con-
tains an elaborate system of judicial-review provisions
separate from 5 U.S.C. §706, which is what courts usually
mean when they refer to review “under the APA.” The
Supreme Court treated §702 as governing when any fed-
4 No. 07-3031
eral statute authorizes review of agency action. See also,
e.g., Webster v. Doe, 486 U.S. 592 (1988).
For what it is worth, it is far from clear to us that the
Governor’s claim is unsupported by the APA. Provisions
such as 5 U.S.C. §704 and §706 are presumptively applica-
ble to all agency action, see 5 U.S.C. §701(a), and §706(2)(A)
allows a court to set aside agency action that is “not in
accordance with law”. Perhaps the Governor believes that
the “law” to which §706(2)(A) refers must be another
portion of the APA, but that is not so; 10 U.S.C. §18238 and
32 U.S.C. §104(c) also are provisions of law for this
purpose—and whether they have been superseded by
the Defense Base Closure and Realignment Act, 10 U.S.C.
§2687 & following note, concerns the merits rather than
the scope of the district court’s jurisdiction. Because the
district court raised sovereign immunity sua sponte, we
do not hold against the Governor his failure to make
an argument “under the APA”; certainly the Governor
has not waived the benefit of §702, on which his ap-
pellate brief relies.
But even if the Governor’s attempt to obtain review of
agency action (for the Department of Defense, unlike the
President, is an “agency”, see Franklin v. Massachusetts,
505 U.S. 788, 828-29 (1992) (Scalia, J., concurring)) is not
one “under the APA”, the fact remains that §702 is a law
of general application. So Chamber of Commerce v. Reich,
74 F.3d 1322, 1328 (D.C. Cir. 1996), holds. The scope of
§702 is demonstrated not only by its language but also by
its location in the same chapter as 5 U.S.C. §704, which
states: “Agency action made reviewable by statute and
final agency action for which there is no other adequate
remedy in a court are subject to judicial review.” Any “final
agency action” comes within §704 if either some statute
No. 07-3031 5
other than the APA makes an action reviewable (the
situation in Bowen v. Massachusetts) or there is no alterna-
tive remedy specified by statute. The defendants do not
say that some other statute displaces this rule.
Decisions such as Consolidated Edison Co. v. United States,
247 F.3d 1378, 1382-83 (Fed. Cir. 2001), rely on statutes
that take particular classes of cases outside §702 and
§704 by providing exclusive means of litigation. See also
Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997) (veterans’
claims are covered by an exclusive mechanism that routes
all litigation through the Court of Veterans’ Appeals and
the Federal Circuit and so displaces §702); Taylor-Callahan-
Coleman Counties Adult Probation Department v. Dole, 948
F.2d 953, 956 (5th Cir. 1991) (§702 does not apply in the
absence of final agency action, because there is nothing
to review until the agency has made a final decision).
The Department of Defense maintains (Br. 26 n.10) that
these decisions conflict with Chamber of Commerce, but
there is no disagreement among the circuits; the D.C.
Circuit does not doubt that final agency action is a con-
dition of review or that a statute expressly displacing
§702 must be respected. Here it is enough to say that the
Governor has challenged final agency action, that no
statute expressly replaces 5 U.S.C. §§ 701 to 706 with a
different approach to judicial review, and that the relief
the Governor seeks comes within the scope of the waiver
in §702. Whether the base-closure mechanism overrides
the statutes on which the Governor relies is, to repeat,
the question on the merits and not a reason to avoid
reaching the merits.
The judgment is reversed and the case remanded for
proceedings consistent with this order. Circuit Rule 36
will apply on remand. If the district court again perceives
6 No. 07-3031
some new procedural obstacle, the court should address
the merits as an additional ground of decision, so that
the next appeal can bring this case to a conclusion.
USCA-02-C-0072—3-11-08