Updated Congressional Research Service Report, "The Availability of Judicial Review Regarding Military Base Closures and Realignments," June 30, 2005 Page: 2 of 12
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The Availability of Judicial Review Regarding Military
Base Closures and Realignments
The 2005 round of military base realignments and closures (BRAC) is now
underway. The Defense Base Closure and Realignment Act of 1990 (Base Closure
Act), as amended, establishes mandatory procedures to be followed throughout the
BRAG process and identifies criteria to be used in formulating BRAG
recommendations. However, judicial review is unlikely to be available to remedy
alleged failures to comply with the Base Closure Act's provisions. A synopsis of the
relevant law regarding the availability of judicial review in this context is included
* The actions of the Secretary of Defense (Secretary) and the
independent BRAG Commission (Commission) are not considered
to be "final agency action," and thus cannot be judicially reviewed
pursuant to the Administrative Procedure Act (APA).
* Even if a court determined that the actions of the Secretary and the
Commission were "final agency action," the court would likely
consider the case to fall under one of two APA exceptions to judicial
review: (1) when statutes preclude judicial review or (2) when
agency action is committed to agency discretion by law.
* The President's actions cannot be judicially reviewed under the
APA, because the President is not an "agency" covered by the
* A claim that the President exceeded his statutory authority under the
Base Closure Act has been held to be judicially unreviewable,
because the Base Closure Act gives the President broad discretion
in approving or disapproving BRAC recommendations.
Thus, courts would likely allow the BRAC process to proceed even if the
Department of Defense, the Commission, or the President did not comply with the
Base Closure Act's requirements.
This report was prepared by Ryan J. Watson, Law Clerk, under the general
supervision of Aaron M. Flynn, Legislative Attorney. It will be updated as case
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Updated Congressional Research Service Report, "The Availability of Judicial Review Regarding Military Base Closures and Realignments," June 30, 2005, book, July 21, 2005; (digital.library.unt.edu/ark:/67531/metadc18288/m1/2/: accessed December 15, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.