Pat Quinn v. Robert Gates ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2767
P ATRICK J. Q UINN, Governor of Illinois,
Plaintiff-Appellant,
v.
R OBERT M. G ATES, Secretary of Defense, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 05-3190—Richard Mills, Judge.
A RGUED JUNE 3, 2009—D ECIDED JULY 29, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. Shuttering a military base
is a difficult task. Whatever the long-term benefit to
national security and the fisc, the economy of the area
near a closed base suffers. Members of the congressional
delegation rally to their constituents’ support. Because
keeping any one base going imposes very little cost (per
person) on the rest of the populace, this support may be
2 No. 08-2767
effective. Everyone favors closing bases in other districts
while protecting their own bases, but that outcome is not
feasible. The upshot may be that all bases remain open,
even though everyone could gain by a process that
spreads the hurt widely to achieve a long-term gain for
the nation as a whole.
After a series of ill-fated attempts to rationalize the cross-
state allocation of military resources, Congress enacted
the Defense Base Closure and Realignment Act of 1990,
104 Stat. 1808, note following 10 U.S.C. §2687. The Act
creates a Commission charged with recommending
changes that save money and improve national security.
Both the President and the Congress may approve or
reject the Commission’s proposal, but they cannot amend
it. The Commission dissolves when it delivers its report
to the President. If either the President or Congress
rejects the proposal, the process ends; but if both
approve (more precisely, if the President transmits the
proposal to Congress and the legislature does not
cancel the plan by joint resolution), then the Secretary of
Defense must implement the changes. This design miti-
gates the local-interest problems that had so often
derailed sensible policy. The Commission must recom-
mend a package in which the national gains outweigh
local losses. The reason for banning amendments is obvi-
ous, and the provision disbanding the Commission once
it delivers a recommendation reinforces the bar against
amendments. (A “nay” by President or Congress would
function as an amendatory power if the Commission
could make alternative proposals.) In short, Congress
designed the Act to force the President and its own mem-
bership into an all-or-none decision.
No. 08-2767 3
Base consolidations under the Act have occurred in
1991, 1993, 1995, and 2005. In this most recent round, the
Commission recommended closing 22 bases and realigning
another 33, saving $35 billion over 20 years. 2005 Defense
Base Closure and Realignment Commission Report. The
President transmitted the Plan, and Congress let it go
into force. One of the Plan’s changes is the subject of this
suit: the Secretary of Defense must move fifteen F–16
jets from a base in Springfield, Illinois—where they
were assigned to a wing of the Illinois Air National
Guard—to a base in Fort Wayne, Indiana. According to the
Commission, this change reflects “a resource-constrained
determination by the Department of Defense that the
aircraft concerned will better support national security
requirements” in Fort Wayne.
In 2005 Illinois’ Governor brought this suit, asking the
district court to enjoin the Commission from transmit-
ting its proposals to the President. He contended that 32
U.S.C. §104(c) prohibits redeployment without guber-
natorial consent, which was not given. Section 104(c)
allows the President to “designate” the National Guard
units in a state “by branch of the Army or organization
of the Air Force”, with the proviso that any “change in
the branch, organization, or allotment of a unit” requires
approval from the affected state’s governor. The Governor
contends that the F–16s are an “allotment of a unit” and
that redistribution is a “change”, making the Plan illegal
to the extent it requires moving the jets. (The Governor
also relied on 10 U.S.C. §18238, but that statute is no
longer in issue.)
4 No. 08-2767
The district court denied the Governor’s request for
immediate relief, and we declined to issue an injunction
pending appeal. We observed that §104(c) does not pro-
hibit the Commission (or anyone else) from making
recommendations to the President. If the Governor’s
understanding of §104(c) is correct, the proper remedy is
an order maintaining the planes in Illinois. The district
court then dismissed the suit for want of standing,
holding that moving the F–16s would not injure the
Governor. 385 F. Supp. 2d 768 (C.D. Ill. 2005). We
reversed in an unpublished order, because refusing to
recognize a procedural right (here, an asserted veto power)
is a form of injury. Blagojevich v. Rumsfeld, No. 05-3595 (7th
Cir. Nov. 1, 2006). On remand the district court again
dismissed the suit, again on jurisdictional grounds,
after concluding that sovereign immunity blocks the
litigation. We reversed a second time, Blagojevich v. Gates,
519 F.3d 370 (7th Cir. 2008), explaining that sovereign
immunity is not a jurisdictional issue and has at all events
been waived by 5 U.S.C. §702. We remanded with instruc-
tions to decide the case on the merits. (In a separate
proceeding, we denied the Governor’s request for an
injunction keeping the planes in Illinois pending further
action in the district court, because they can be flown
back if the Governor prevails.)
For a third time, the district court dismissed the suit
for lack of subject-matter jurisdiction. 558 F. Supp. 2d 885(C.D. Ill. 2008). This time the rationale was that the Act
precludes judicial review of the Secretary’s actions imple-
menting an approved plan. The court thought this out-
come compelled by the logic of Justice Souter’s con-
No. 08-2767 5
currence in Dalton v. Specter, 511 U.S. 462 (1994). In compli-
ance with our mandate to address the merits, the judge
also held that §104(c) does not give the Governor a
veto power over the transfer of particular equipment.
Because we find Justice Souter’s analysis compelling, it
is unnecessary to assess how §104(c) affects the movement
of military equipment outside the Realignment Act’s
framework.
Plaintiffs in Specter (including the eponymous Senator)
asked for an injunction to prevent the Secretary
from closing the Philadelphia Naval Shipyard, as the
1991 Plan required. They argued that the Secretary
and Commission failed to observe all of the Act’s proce-
dures, and that the President thus should not have ap-
proved their recommendation. All nine Justices voted to
deny relief. The majority held (1) that the Commission’s
recommendation to the President is not final agency
action reviewable under the Administrative Procedure
Act, for unless the President and Congress approve the
Commission’s plan nothing happens, and (2) that the
President and Congress are not agencies whose decisions
are reviewable under the APA. Justice Souter, joined by
Justices Blackmun, Stevens, and Ginsburg, preferred to
decide on a different ground: that the Realignment Act
grants the President “unfettered discretion to accept
the Commission’s base-closing report or to reject it, for
a good reason, a bad reason, or no reason”. 511 U.S. at
483. The concurring Justices saw the suit as an effort at
cherry picking and concluded that the Act forbids any
remedy that would undermine its all-or-none approach.
6 No. 08-2767
The Secretary’s order to move the F–16s to Indiana is
final agency action, and the Department of Defense is
an APA “agency”. Invoking Justice Souter’s opinion, the
Secretary supports the district court’s conclusion that
the federal judiciary lacks jurisdiction to review even
final action implementing a base closure. But
Justice Souter did not say this; his position is that the Act
requires decisions to be implemented en bloc, not that
judges are powerless to enforce the Act’s terms.
Nothing in the Act modifies the many statutes that
confer jurisdiction over claims arising under federal
statutes. Suppose the President failed to accept or reject
the Commission’s proposal as a package—a requirement
under the Act—but instead deleted two closures and
ordered the Secretary to close a base that the Commission
proposed to keep open. Execution of that order would be
incompatible with the Act and could be enjoined. Or
suppose the Commission proposed to save money by
quartering the soldiers of a given base in the homes of
local citizens. The third amendment would prohibit
that—and given the Act’s all-or-none rule the entire plan
might be enjoined. The Realignment Act does not limit
recourse to the courts on such matters; the point of
Justice Souter’s opinion was only that judges must not
usurp the President’s policy-making function and must
respect the Act’s all-or-none feature.
Subject-matter jurisdiction is the authority to resolve the
parties’ dispute. Collins v. United States, 564 F.3d 833(7th Cir. 2009). Sometimes the ground on which this
resolution occurs is that decision belongs to another
No. 08-2767 7
governmental actor. Consider, for example, the provision
exempting from the APA action “committed to agency
discretion by law.” 5 U.S.C. §701(a)(2). That supplies a
ground on which the dispute must be resolved (the
agency’s decision prevails) without contracting federal
subject-matter jurisdiction. Likewise here: to say that the
Realignment Act’s structure supersedes other statutes
that might have allowed some bases on the President’s
list to remain open is not to say that any jurisdiction has
been withdrawn. A litigant whose claim is blocked by
substantive provisions in a statute loses on the merits,
not for lack of jurisdiction. See United States v. Pulungan,
569 F.3d 326, 328 (7th Cir. 2009).
In several recent decisions the Supreme Court has
observed with regret that the term “jurisdictional” is
often loosely used, even in some of its own opinions, to
signify any mandatory rule of decision. Arbaugh v. Y&H
Corp., 546 U.S. 500 (2006); Eberhart v. United States, 546 U.S.
12 (2005); Kontrick v. Ryan, 540 U.S. 443 (2004); see also
Wisconsin Valley Improvement Co. v. United States, 569
F.3d 331, 333–34 (7th Cir. 2009). The footnoted aside
in Block v. Community Nutrition Institute, 467 U.S. 340, 353
n.4 (1984), describing reviewability as “in effect” jurisdic-
tional, is precisely the kind of “drive-by jurisdictional
ruling” (Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 91 (1998)) that cases such as Arbaugh tell us to
disregard. See Wisconsin Valley, 569 F.3d at 334 (coming
to the same conclusion about Block v. North Dakota, 461
U.S. 273 (1983)).
District courts have jurisdiction to hear civil actions
against the United States and its agencies arising under
8 No. 08-2767
federal law, when the plaintiff seeks relief other than
money. 28 U.S.C. §1346(a)(2). This is such a case. See also
28 U.S.C. §1331; 5 U.S.C. §702 (permitting “[a] person
suffering legal wrong because of agency action” to sue for
injunctive relief). So our 2008 opinion said. 519 F.3d at
371. Any non-frivolous claim arising under federal law
supplies jurisdiction. See Steel Co.; Bell v. Hood, 327 U.S.
678, 682–83 (1946). The Governor’s understanding of
§104(c) might be erroneous, or relief might be blocked
by the Realignment Act, but the suit is not frivolous. That’s
why our 2008 opinion concluded that the district court
possesses subject-matter jurisdiction.
The question squarely presented is whether the Realign-
ment Act supersedes whatever limits §104(c) puts on the
President’s power to redeploy federal equipment
assigned to a unit of the National Guard. An affirmative
answer does not mean that the Realignment Act “implicitly
repeals” §104(c); the statutes can coexist. Cf. National
Association of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007). Section 104(c) retains its force if the
President wishes to change an “allotment” outside the
process established by the Realignment Act. But the
Secretary may be authorized to bypass §104(c) when
implementing a proposal made and adopted under the
Realignment Act.
The Governor says that the base-closing power
under that Act is subject to all other limits on presidential
authority. This argument rests on the premise that
implied repeals are disfavored. See, e.g., Home Builders;
Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). The
No. 08-2767 9
presumption is sound but unhelpful, because the Act does
not “repeal” §104(c). Instead it provides a means, inde-
pendent of other statutes, by which bases may be closed
or realigned. It is common ground, or at least should be,
that a later-enacted statute can confine the domain of
an earlier one. E.g., Brotherhood of Maintenance of Way
Employees v. CSX Transportation, Inc., 478 F.3d 814 (7th
Cir. 2007); Katz v. Gerardi, 552 F.3d 558 (7th Cir. 2009). To
the extent of incompatibility, an old rule generally yields
to a new one. Katz, 552 F.3d at 561. (The Governor says
that the statutes are not inconsistent, because the
President could exercise his authority under the Realign-
ment Act by disapproving the Commission’s recommenda-
tion if any Governor objects to the realignment of any
National Guard unit. But that begs the relevant
question, which is whether the President must jump
through hoops established by older statutes that were
designed to frustrate base closures.)
Is there any reason why the most recent statute should
not govern? The Governor wheels out the interpretive
canon expressio unius est exclusio alterius. Section 2905(c)(1)
of the Realignment Act permits the President to ap-
prove a plan without preparing an environmental-impact
statement under the National Environmental Policy Act
of 1969. The Realignment Act is silent about §104(c).
Because the Act mentions one statute it displaces, the
argument goes, all others must be unaffected.
We read the Realignment Act’s treatment of NEPA as
an argument against the Governor rather than in his
favor. The subsection immediately following the exemp-
tion we describe says: “The provisions of [NEPA] shall
10 No. 08-2767
apply to actions of the Department of Defense under
this part (i) during the process of property disposal, and
(ii) during the process of relocating functions from
a military installation being closed or realigned”.
§2905(c)(2)(A). In tandem, subsections (c)(1) and (c)(2)(A)
say that NEPA remains effective to the extent that en-
vironmental analysis would not disrupt or delay the
process of selecting bases for closure and realignment.
The Realignment Act had to address NEPA in order to
draw this distinction and preserve its application in part.
One might invert the Governor’s argument and say
that statutory rules predating 1990 are superseded
unless the Realignment Act expressly notes their applica-
bility. But neither “all older statutes apply unless men-
tioned in the Realignment Act” nor “no older statute
applies unless. . .” captures Justice Souter’s point. What
he concluded—and what we, too, conclude—is that
the Realignment Act supersedes any statute that is incom-
patible with the Act’s all-or-none feature. The Act is
designed to ensure that “action on a base-closing package
be quick and final”. Specter, 511 U.S. at 479 (Souter, J.,
concurring). The Governor invokes §104(c) for
the declared purpose of excluding one base from the
Commission’s program, while bases in other states are
closed. The Realignment Act forbids that sort of outcome.
The judgment of the district court is modified to be on
the merits and as so modified is
AFFIRMED .
7-29-09