2005 | Cited 0 times | D. Massachusetts | September 8, 2005


Plaintiff, W. Mitt Romney, in his official capacity as Governorof the Commonwealth of Massachusetts (the "Governor"), hasbrought an action for declaratory judgment and injunctive relief,challenging recommendations made by the Secretary of Defense andthe Defense Base Closure and Realignment Commission (the"Commission") affecting the Otis Air National Guard Base inBarnstable, Massachusetts ("Otis"), which would include movingF-15 aircraft from Otis to the Barnes Air National Guard Base inWestfield, Massachusetts ("Barnes") and A-10 aircraft from Barnesto other States. Relying on both statutory and constitutionalprovisions — 32 U.S.C. § 104, § 10 U.S.C. 18238, andArticle I, § 8, cl. 16 of the United States Constitution — the Governor contends that the changes affecting the Massachusetts AirNational Guard that are about to be formally recommended by theCommission may not be made without his consent. The Governorfurther says that he has notified Secretary Rumsfeld andCommission Chair Principi that he does not consent. Pursuant tothe Base Closure and Realignment Act of 1990, 104 Stat. 1808, asamended, note following 10 U.S.C. § 2687 (the "BRAC Act"), theCommission must transmit its final report to the President bythis date, September 8, 2005. The Governor seeks a temporaryrestraining order enjoining the Commission from transmitting itsfinal report to the President. For the reasons briefly outlinedbelow, the Governor's motion for a temporary restraining ordermust be denied.

The defendants' principal arguments are that the legalcontroversy is not ripe and that the Governor lacks standing tocomplain of, and therefore to seek to enjoin, the Commission'sdelivery of its final report recommending changes affecting theAir National Guard units within Massachusetts because thedelivery of the report to the President itself causes theGovernor no injury for which redress may be given. It is notnecessary on this occasion to decide finally all questions whichmay be fundamental to the viability of the present action, suchas whether the Governor has standing or whether the claims arejusticiable. The precise and limited issue that needs to beresolved as an urgent matter, given the imminent delivery of thereport to the President, is whether the Governor has shown whatmust be shown to justify the entry of a temporary restrainingorder.

It is axiomatic that to induce a court to enter a temporaryrestraining order a plaintiff must demonstrate, at a minimum, alikelihood of success on the merits of his claim(s) and theprospect of immediate irreparable harm unless the restrainingorder is entered. See Wine and Spirits Retailers, Inc. v.Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005); QuincyCablesystems, Inc. v. Sully's Bar, Inc., 640 F.Supp. 1159, 1160 (D.Mass. 1986). The Governor has not satisfiedeither requirement, essentially for the same reason.

As a practical matter, it is undeniable that the Commission'ssubmission of its final report and recommendations to thePresident is a significant event. Nonetheless, as the BRACprocess has been explained by the Supreme Court, the submissionof the report itself carries no direct or final consequencesaffecting the Massachusetts Air National Guard. See Dalton v.Specter, 511 U.S. 462, 469 (1994). "The action that will`directly affect' the military bases . . . is taken by thePresident, when he submits his certification of approval toCongress." Id. (citation omitted). "Accordingly, the [Defense]Secretary's and the Commission's reports serve `more like atentative recommendation than a final and bindingdetermination.'" Id. (citation omitted).

Under the BRAC Act, the President has the authority and thediscretion to accept or reject the Commission's recommendation."That the President cannot pick and choose among bases, and mustaccept or reject the entire package offered by the Commission, isimmaterial. What is crucial is the fact that `[t]he President,not the [Commission], takes the final action that affects' themilitary installations." Id. at 470 (citation omitted).

Some of the issues presented in this action are novel andintriguing. It is not necessary to canvass or address them all atthis time. The present issue is whether the plaintiff hasdemonstrated a likelihood (1) that his legal theories aremeritorious and (2) that without the entry of a temporaryrestraining order his legal interest will suffer irreparable harmthat outweighs (3) any harm either to the defendants' interestsor (4) to the public interest. Since (as explained in Dalton)the submission of the Commission's report to the President itselfhas no conclusive effect, the plaintiff has failed to establishthat the act of transmitting the report ought to be restrained. The application for a temporary restraining order is,therefore, DENIED.

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