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LAWSUIT REGARDING THE PHILADELPHIA NAVAL SHIPYARD (Senate - July 08, 1991)

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Mr. SPECTER. Mr. President, I have sought the floor to acquaint my colleagues with an important lawsuit which has been filed this afternoon relating to the base-closure proceedings and involves the Philadelphia Navy Yard, where a number of Members of Congress, including Senator Wofford, Senator Bradley, Senator Lautenberg, Governor Casey of the Commonwealth of Pennsylvania, State Attorney General of Pennsylvania Ernest Preate, Represenative Curt Weldon, Representative Thomas Foglietta, Representative Robert Andrews, Representative Lawrence Coughlin, the city of Philadelphia, representatives of the International Federation of Professional and Technical Engineers, and representatives of the Metal Trades Council, Local 687 Machinists, have filed suit against the Department of the Navy and Department of Defense and the Base Closing Commission because of the violations of the Base Closure Act.

In this litigation filed in the United States District Court for the Eastern District of Pennsylvania, a declaratory judgment is sought to declare invalid the proceedings of the Base Closing Commission because of specific violations of the Base Closing Act. For one, Mr. President, there is set forth in the facts a chronology which reveals the refusal of the Department of the Navy to turn over to Members of Congress material documents, including memoranda from Admiral Heckman and Admiral Claman, supporting the retention of the Philadelphia Navy Yard, although downsizing it; action by the Department of Navy, through the Under

Secretary of the Navy Howard, to urge Admiral Heckman not to testify before the Base Closure Commission; the failure of the justification provided by the Department of the Navy to meet the standards required by the base closure statute; the part played by the General Accounting Office, specifically under the base closure law, to submit its findings, which the General Accounting Office did in May of this year, saying that although the Department of Defense complied with the statute as to the Army closures and the Air Force closures, the Department of Navy had not complied with the requirements. In their findings there were specific references made to the Philadelphia Navy Yard.

Mr. President, I suggest that this is a very important litigation.

The distinguished Philadelphia law firm of Dilworth, Paxson, Kalish & Kauffman has undertaken the representation pro bono--that is without charge--because of the very important issues involved.

This is not only a matter of enormous economic importance to the Delaware Valley region, but it is of grave national importance to issues of national security, where the Philadelphia Navy Yard has historically played a very vital role for national defense. In the gulf war it was clear that air power was a significant factor in our victory there and that the carriers played a significant role in supporting air power, and that the Philadelphia Navy Yard was significant for its servicing of many of those carriers. So that underlying this issue are vital concerns of national security, in addition to what is obviously important for the economy of the Delaware Valley region.

The gravamen of this litigation, Mr. President, goes not only to process but to actual suppression of key evidence which, if it had been available for the hearings in Washington on May 22, and in Philadelphia on May 24, would have led to a contrary conclusion--that is, the retention of the Philadelphia Navy Yard.

Although the documents are lengthy, I ask unanimous consent, Mr. President, that the complaint for declaratory judgment and the memorandum of law in support of the request for declaratory judgment be printed in full in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

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In the U.S. District Court for the Eastern District of Pennsylvania

[IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA]

Sen. Arlen Specter, Sen. Harris Wofford, Sen. Bill Bradley, Sen. Frank R. Lautenberg, Governor Robert P. Casey, Commonwealth of Pennsylvania, Pennsylvania Attorney General Ernest D. Preate, Jr., Rep. Curt Weldon, Rep. Thomas Foglietta, Rep. Robert Andrews, Rep. R. Lawrence Coughlin, City of Philadelphia, Howard J. Landry, and International Federation of Professional and Technical Engineers, Local 3, and William F. Reil and Metal Trades Council, Local 687 Machinists, Plaintiffs, v. H. Lawrence Garrett III, Secretary of the Navy, Richard Cheney, Secretary of Defense, the Defense Base Closure and Realignment Commission and Its Members James A. Courter, William L. Ball III, Howard H. Callaway, Duane H. Cassidy, Arthur Levitt, Jr., James C. Smith II, and Robert D. Stuart, Jr., Defendants

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiffs Sen. Arlen Specter, Sen. Harris Wofford, Sen. Bill Bradley, Sen, Frank R. Lautenberg, Governor Robert P. Casey, the Commonwealth of Pennsylvania, Pennsylvania Attorney General Ernest D. Preate, Jr., Rep. Curt Weldon, Rep. Thomas Foglietta, Rep. Robert E. Andrews, Rep. R. Lawrence Coughlin, the City of Philadelphia, Howard J. Landry, International Federation of Professional and Technical Engineers, Local 3, William F. Reil and Metal Trades Council, Local 687 Machinists allege as follows:

INTRODUCTION

1. A declaratory judgment is necessary to prevent the imminent and unlawful closing of the Philadelphia Naval Shipyard (also referred to as the `Shipyard'), the largest employer in the Philadelphia area. The actions taken by the government officials responsible for ensuring an independent, equal, lawful and fair process for closing and realigning military installations under the Defense Base Closure and Realignment Act of 1990 (the `Base Closure Act'), Public Law 101-510, Title XXIX, Sec. 2901-2910 (November 5, 1990), have violated the Base Closure Act and the procedures and regulations promulgated thereunder in at least 18 separate and material respects.

2. The plaintiffs respectfully request a declaratory judgment that the Secretary of Defense, the Secretary of Navy and the Base Closure and Realignment Commission's actions are fundamentally inconsistent with the Base Closure Act and other applicable law and are therefore void.

3. Immediate declaratory relief is necessary because the defendants' unlawful conduct has resulted in the Shipyard being placed on a list of military installations slated for closure. If the requested relief is not granted, the plaintiffs will be immediately and irreparably injured.

PLAINTIFFS

4. Plaintiff United States Senator Arlen Specter is a
citizen of the Commonwealth of Pennsylvania with his residence in Philadelphia County, Pennsylvania, and an office at Room 9400, Green Federal Building, 6th and Arch Streets, Philadelphia, Pennsylvania.

5. Plaintiff United States Senator Harris Wofford is a citizen of the Commonwealth of Pennsylvania with his residence in Montgomery County, Pennsylvania, and an office at Room 9456, Green Federal Building, 6th and Arch Streets, Philadelphia, Pennsylvania.

6. Plaintiff United States Senator Bill Bradley is a citizen of the State of New Jersey with his residence in Morris County, New Jersey, and an office at Union-1605, Vauxhall Road, Union, New Jersey.

7. Plaintiff United States Senator Frank R. Lautenberg is a citizen of the State of New Jersey with his residence in Secaucus, New Jersey, and an office at Gateway I, Newark, New Jersey.

8. Plaintiff Governor Robert P. Casey is a citizen of the Commonwealth of Pennsylvania with his residence in Lackawanna County, Pennsylvania, and an office at Room 229, Main Capitol, Harrisburg, Pennsylvania.

9. Plaintiff the Commonwealth of Pennsylvania is a State of the United States.

10. Plaintiff Pennsylvania Attorney General Ernest D. Preate, Jr. is a citizen of the Commonwealth of Pennsylvania with his residence in Lackawanna County, Pennsylvania, and an office at 16th Floor, Strawberry Square, Harrisburg, Pennsylvania. Plaintiff Preate sues individually and as Attorney General of the Commonwealth of Pennsylvania.

11. Plaintiff United States Representative Curt Weldon is a citizen of the Commonwealth of Pennsylvania with his residence in Delaware County, Pennsylvania, and an office at 1554 Garrett Road, Upper Darby, Pennsylvania.

12. Plaintiff United States Representative Thomas Foglietta is a citizen of the Commonwealth of Pennsylvania with his residence in Philadelphia County, Pennsylvania, and an office at Room 10402, Green Federal Building, 6th and Arch Streets, Philadelphia, Pennsylvania.

13. Plaintiff United States Representative Robert E. Andrews is a citizen of the State of New Jersey with his residence in Camden County, New Jersey, and an office at 16 Somerdale Square, Somerdale, New Jersey 08083.

14. Plaintiff United States Representative R. Lawrence Coughlin is a citizen of the Commonwealth of Pennsylvania with his residence in Montgomery County, Pennsylvania, and an office in Norristown, Pennsylvania.

15. Plaintiff the City of Philadelphia is a municipality of the Commonwealth of Pennsylvania.

16. Plaintiff Howard J. Landry is the President of the International Federation of Professional and Technical Engineers, Local 3, and is a citizen of the State of New Jersey with his residence in Cherry Hill, New Jersey. Landry has been employed
since 1972 by the Shipyard and has over twenty-seven years of federal service employment. Landry is a member of the class of employees whose jobs will be eliminated if the Shipyard is closed in accordance with the July 1, 1991 recommendation of the Defense Base Closure and Realignment Commission.

17. Plaintiff International Federation of Professional and Technical Engineers (`IFPTE'), Local 3, is the exclusive bargaining representative for virtually all General Schedule (`GS') employees of the Shipyard. IFPTE Local 3 has its principal place of business at the Shipyard, Philadelphia, Pennsylvania. IFPTE represents over 1,300 employees of the Shipyard. These employees are employed in GS grades 3 through 12 and work as engineers, technicians and clerical staff, predominantly holding positions in all phases of the repair, overhaul and maintenance of Navy vessels. Nearly all of these employees will lose their jobs if the Shipyard is closed in accordance with the July 1, 1991 recommendation of the Defense Base Closure and Realignment Commission.

18. Plaintiff William F. Reil, the President of the Metal Trades Council, Local 687 Machinists, is a citizen of the Commonwealth of Pennsylvania with his residence in Philadelphia, Pennsylvania. Reil has been employed since 1953 by the Shipyard. Reil is a member of the class of employees whose jobs will be eliminated if the Shipyard is closed in accordance with the July 1, 1991 recommendation of the Defense Base Closure and Realignment Commission.

19. Plaintiff Metal Trades Council, Local 687 Machinists (`MTC'), is the exclusive bargaining representative for all blue collar workers at the Shipyard. MTC represents over 8,000 employees of the Shipyard and Naval Station. Nearly all of these employees will lose their jobs if the Shipyard is closed in accordance with the July 1, 1991 recommendation of the Defense Base Closure and Realignment Commission.

DEFENDANTS

20. Defendant H. Lawrence Garrett, III is the Secretary of the Navy and maintains his principal office at the Department of the Navy, the Pentagon, Washington, D.C. Defendant Garrett is sued in his official capacity as Secretary of Navy.

21. Defendant Richard Cheney is the Secretary of Defense and maintains his principal office at the Department of Defense, The Pentagon, Washington, D.C. Defendant Cheney is sued in his official capacity as Secretary of Defense.

22. Defendant The Defense Base Closure and Realignment Commission (the `Commission') is the agency of the United States charged with ensuring an independent, equal, lawful and fair process for closing and realigning military installations.

23. Defendant James A. Courter is Chairman of the Commission and is sued in his official capacity.

24. Defendant William L. Ball, III is a member of the Commission and is sued in his official capacity.

25. Defendant Howard H. Callaway is a member of the Commission and is sued in his official capacity.

26. Defendant Gen. Duane H. Cassidy, USAF (Ret.) is a member of the Commission and is sued in his official capacity.

27. Defendant Arthur Levitt Jr. is a member of the Commission and is sued in his official capacity.

28. Defendant James C. Smith, II, P.E. is a member of the Commission and is sued in his official capacity.

29. Defendant Robert D. Stuart, Jr. is a member of the Commission and is sued in his official capacity.

JURISDICTION AND VENUE

30. This Court has jurisdiction over the subject matter of this lawsuit pursuant to: (a) the Declaratory Judgment Act, 28 U.S.C. 2201 and 2202; (b) 28 U.S.C. Sec. 1331, 1337, 1346 and 1361; (c) the Defense Base Closure and Realignment Act of 1990, Public Law 101-510, Title XXIX, 2901-2910 (November 5, 1990); and (d) the Administrative Procedure Act, 5 U.S.C. 701 et seq.

31. Venue is proper in this Court pursuant to 28 U.S.C. 1391.

STATEMENT OF FACTS

A. The Philadelphia Naval Shipyard

32. Founded in 1801, the Philadelphia Naval Shipyard is a major industrial complex consisting of extensive and large drydocks, piers, production shops, equipment and other assets valued at almost 3 billion dollars. The Philadelphia Naval Station services the Shipyard.

33. Operations at the Shipyard involve at least 47,000 jobs in the Philadelphia area (31,000 direct and indirect positions, 7,000 additional ship-associated personnel and 9,100 direct and indirect positions associated with the Philadelphia Naval Station).

34. There are eight Naval Shipyards in the United States: Puget Sound, Norfolk, Philadelphia, Mare Island, Charleston, Pearl Harbor, Portsmouth and Long Beach.

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35. Almost 15% of the total repair and modernization work performed by all eight Naval Shipyards is accomplished at the Philadelphia Shipyard.

36. In addition to performing work on large amphibious ships and other large vessels, the Philadelphia Shipyard's physical assets and experienced work force make it the premier facility for work on the Navy's non-nuclear aircraft carriers and highly sophisticated and complex cruisers and destroyers.

37. The Shipyard excels in the Service Life Extension Program (`SLEP'), which extends the life of non-nuclear carriers in the Naval fleet by 15-30 years at a cost of about $1 billion or less per carrier.

38. Philadelphia is the only Naval Shipyard performing SLEP work.

39. In the 1991 Defense Appropriation Act, the Congress has required a $405 million CV-SLEP on the aircraft carrier U.S.S. Kennedy to be performed at the Shipyard. The CV-SLEP is not scheduled to be completed until mid-1996.

40. From 1980 through the present, Philadelphia has
led all eight Naval Shipyards in efficiency and cost-effectiveness, due largely to the excellence of its highly skilled work force.

41. Contrary to the statements of the Navy, not a penny will be saved by the closure of the Shipyard.

42. Philadelphia is one of only two Naval Shipyards operating in the black with positive net operating results in the last two years.

43. The Shipyard differs from most other governmental agencies because it operates as a private business and it not funded directly from the defense budget. Personnel payrolls, building maintenance and nearly all other overhead and operating expenses are paid for by selling Shipyard services to customers in a highly competitive environment.

44. Unlike most other governmental agencies, the Shipyard does not receive annual appropriations in support of operations. Rather, it generates its revenues by charging customers for work performed.

45. If the Shipyard is closed, the work performed there will ultimately be performed at greater cost to the Navy.

B. Enactment of the 1990 Defense Base Closure and Realignment Act

46. On May 3, 1988, then Secretary of Defense, Frank Carlucci, chartered the Defense Secretary's Commission on Base Realignment and Closure to evaluate and recommend a reduction in the military installations located in the United States.

47. In October 1988, Congress passed and the President signed Public Law 100-526, the Defense Authorization Amendment and Base Closure and Realignment Act.

48. The 1988 Commission on Base Realignment and Closure recommended that 86 bases be closed and 59 bases be realigned or partially closed. These recommendations were strongly criticized by members of Congress and the public.

49. Congressional critics contended that the 1988 base closure and realignment recommendation process had not been sufficiently open to public scrutiny.

50. Congressional critics also charged that faulty data had been used to reach the 1988 final closure recommendations.

51. Congress believes that the General Accounting Office (`GAO') should have reviewed the data considered by the 1988 Commission on Base Realignment and Closure.

52. On January 29, 1990, Secretary of Defense Cheney announced a proposal to close 36 bases in the United States, including the Shipyard.

53. In connection with that proposal, the Vice Chief of Naval Operations conducted a study to justify the proposed closure. This study concluded that the Shipyard should not be closed.

54. On November 5, 1990, to redress the criticisms raised by the 1988 base closure process, the President signed into law the Base Closure Act.

55. The Base Closure Act:

(a) Expressly stated that its `purpose' was `to provide a fair process that will result in the timely closure and realignment of military installations' [10 U.S.C. 2901(b) (emphasis supplied)];

(b) Required that all meetings of the Commission `be open to the public,' except where classified information was being discussed [10 U.S.C. 2902(e)(2)(A)];

(c) Mandated the development and application of `final criteria' for making the closure and realignment determinations [10 U.S.C. 2903(b)(2)(A) and (c)];

(d) Mandated the creation of a six year force-structure plan for the Armed Forces for making the closure and realignment determinations [10 U.S.C. 2903(a) and (c)];

(e) Required the Secretary of Defense to consider all military installations `equally' for closure or realignment [10 U.S.C. 2903(c)(3)];

(f) Required the Secretary of Defense to transmit to the Commission `a summary of the selection process that resulted in the recommendation for [closure or realignment] of each installation, including a justification for each recommendation [10 U.S.C. 2903(c)(2)]; and

(g) Required the Secretary of Defense to transmit to the GAO `all information used by the Department in making its recommendations to the Commission for closures and realignments,' and required the GAO (i) to assist the Commission in its review and analysis of the recommendations made by the Secretary and (ii) to transmit to the Commission and to Congress `a report containing a detailed analysis of the Secretary's recommendations and selection process' 45 days before the Commission's report was to be transmitted to the President [10 U.S.C. 2903(c)(4), 2903(d)(5)(A) and 2903(d)(5)(B)].

C. The Oversight role of Congress under the Base Closure Act

56. The April 1991 Base Closure and Realignment Report of the Department of Defense (`DOD') acknowledges the significant oversight role retained by Congress with respect to military installation closures and realignments:

`(a) Authority to disapprove by law the Secretary's final criteria;

`(b) Receipt of the Secretary of Defense's force structure plan;

`(c) Receipt of the Secretary's recommended closures and realignments;

`(d) The role of the General Accounting Office; and

`(e) The requirement that the Commission's proceedings, information, and deliberations be open, on request, to designated members of Congress.'

D. The evaluative and oversight role of the General Accounting Office under the Base Closure Act

57. During the 1988 base closure process, Congress belatedly called upon the GAO to examine the 1988 commission's methodology, findings and recommendations.

58. Congress ensured an integral and timely role for the GAO during the 1991 base closure process.

59. The Secretary's April 1991 Base Closure and
Realignment Report to the Commission described the GAO's essential role:

`Public Law 101-510 provided for the General Accounting Office (GAO) to monitor the activities, while they occur, of the Military Departments, the Defense Agencies and the Department of Defense in selecting bases for closure or realignment under the Act.

`The GAO is required to provide the Commission and the Congress with a detailed analysis of the Secretary of Defense's recommendations and selection process. The GAO report, due by May 15, 1991, is also intended to describe how the DOD selection process was conducted and whether it met the requirements of the Act. In addition, the GAO is required to assist the Commission, if requested, with its review and analysis of the Secretary's recommendations.' (Emphasis supplied.)

60. Purporting to comply with Congressional mandates, the Commission stated at p. 1-5 of its July 1, 1991 Base Closure and Realignment Report to the President that the `GAO has been an integral part of the process.'

E. The 1991 Defense Base Closure Commission

61. The Base Closure Act provides for an eight member Commission to conduct an independent, equal, lawful and fair process for closing and realigning military installations.

62. To ensure the independence of the Commission, the Base Closure Act requires that the President nominate commissioners only after consulting with the speaker of the House of Representatives concerning the appointment of two members, the majority leader of the Senate concerning two members, the minority leader of the House of Representatives concerning the appointment of one member and the minority leader of the Senate concerning the appointment of one member.

63. The President nominated former New Jersey Congressman James A. Courter as Chairman of the Commission and the following seven as members of the Commission: William L. Ball III, former Secretary of the Navy; Howard H. (Bo) Callaway, former Secretary of the Army; Duane H. Cassidy, former commander-in-chief of the United States Transportation Command of the Military Airlift Command; Arthur Levitt, Jr., chairman of the board of Levitt Media Company; James C. Smith II, P.E., formerly a member of the Secretary of Defense's 1988 Base Closure Commission; Robert D. Stuart, Jr., former chairman of the board of the Quaker Oats Company; and Alexander Trowbridge, former Secretary of Commerce.

64. These nominations were confirmed by the Senate.

65. On May 17, 1991, Alexander Trowbridge resigned from the Commission because of a conflict of interest arising out of his ownership of a majority of stock in certain companies that had significant Pentagon contracts.

66. Section 2902 of the Base Closure Act requires that all vacancies be filled in the same manner as the original appointment.

67. In accordance with Congress' oversight role under the Base Closure Act, Alexander Trowbridge had been nominated by the President after consultation with Speaker Foley.

68. In violation of the Base Closure Act, Trowbridge's
vacancy was never filled.

69. The Commission established four procedures for gathering evidence to review the DOD's base closure proposals: (a) 15 public hearings in Washington, D.C. to receive information from the DOD, legislators and other experts; (b) 14 regional and site hearings to obtain public comment; (c) site visits by the Commissioners of the major facilities proposed for closure; and (d) review by the Commission's staff of the Armed Services' processes and data.

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70. Under the Base Closure Act, the Commission was required to submit its Report to the President by July 1, 1991, setting forth its findings, conclusions and recommendations for closures and realignments inside the United States.

F. The Department of Defense base closure criteria for process

71. The Base Closure Act directs the Secretary of Defense to: (1) develop selection criteria for making recommendations for the closure of military installations and to finalize such criteria after public comment; (2) provide to Congress (with the Department of Defense's budget request for fiscal year 1992) a six-year, force-structure plan for the Armed Forces; (3) submit to the Commission by April 15, 1991 a list of military installations recommended for closure or realignment `on the basis of the force-structure plan and the final criteria' [10 U.S.C. 2903(c)(1) (emphasis supplies)]; and (4) make available to the Commission, the GAO and Congress `all information used by the Department in making its recommendations to the Commission for closures and realignments' [10 U.S.C. Sec. 2903(c)(4) (emphasis supplied].

72. As part the objective process for determining whether to close a military installation, the Base Closure Act required the Secretary of Defense of establish selection criteria to be used in making a closure recommendation.

73. In developing these criteria, the Secretary was required to public proposed criteria in the Federal Register and solicit public comments.

74. The DOD published eight proposed criteria and requested comments on November 30, 1990.

75. The proposed criteria closely mirrored the criteria established for the 1988 Defense Secretary's Commission on Base Realignment and Closure. The only notable differences were that priority consideration was given to military value criteria and payback was no longer limited to six years.

76. As a result of numerous public concerns raised about the criteria's broad nature and the need for objective measures or factors for the criteria, on December 10, 1990, the DOD issued a memorandum setting forth `policy guidance' and `record keeping' requirements to the Military Departments as follows:

`The recommendations in the studies must be based on the final base closure and realignment selection criteria established under that Section [2903 of the Act]; and

`The studies must consider all military installations inside the United States * * * on an equal footing * * *'

DOD components shall keep:

`Descriptions of how base closure and realignment selections were made, and how they met the final selection criteria;

`Data, information and analysis considered in making base closure and realignment selections; and

`Documentation for each recommendation to the Secretary of Defense to close or realign a military installation under the Act.' (Emphasis supplied.)

77. On February 13, 1991, the DOD issued a memorandum setting forth `internal control' guidance to the Military Departments requiring implementation of an `internal control plan' which `at a minimum' was to include:

`Uniform guidance defining data requirements and sources for each category of base,

`Systems for verifying accuracy of data,

`Documentation justifying any changes made to data submissions, and

`Procedures to check the accuracy of the analysis made from the data provided.'

78. The February 13, 1991 DOD Memorandum also provided the following procedures for evaluating base closures and realignments: (a) if there was no excess capacity in a certain category, the bases in that category were exempted from closure; (b) if there was excess capacity and a base was recommended for closure or realignment, the Department's analysis must have considered all military bases within that category and any cross-categories; and (c) military based could only be excluded from further review if they were militarily/geographically unique or mission essential such that no other base could substitute for them.

79. On February 15, 1991, the DOD published in the Federal Register eight proposed final criteria to govern the base closure and realignment process.

80. The first four criteria concerned `military value,' and were to receive preference:

`(1) Current and future mission requirements and the impact of operational readiness of the Department of Defense's total-force.

`(2) The availability and condition of land, facilities and associated air space at both the existing and potential receiving locations.

`(3) The ability to accommodate contingency, mobilization, and future total force requirements at both the existing and potential receiving locations.

`(4) The cost and manpower implications.'

The fifth criteria concerned `return on investment':

`(5) The extent and timing of potential costs and savings, including the number of years, beginning with the date of completion of closure or realignment, for the savings to exceed the costs.'

The final three criteria involved `impacts':

`(6) The economic impact on local communities.

`(7) The ability of both the existing and potential receiving communities' infrastructures to support forces, missions, and personnel.

`(8) The environmental impact.'

81. The proposed criteria were subject to Congressional review between February 15, 1991 and March 15, 1991. The criteria became final on March 15, 1991.

G. The necessity for the Navy to develop and implement an internal control plan

82. The February 13, 1991 DOD Memorandum also required each Military Department to develop and implement an `internal control plan' to ensure the accuracy of data collection and analyses. At a minimum, the internal control plan was required to include (1) uniform guidance defining data requirements and sources for each category of base, (2) systems for verifying accuracy of data, (3) documentation justifying any changes made to data submissions, and (4) procedures to check the accuracy of the analyses made from the data provided.

83. The Navy failed to implement an `internal control plan' that ensured the accuracy of its data collection and analysis. The Navy did not prepare minutes of its deliberations on closures and realignments.

H. The Navy's pre-determination to close the Philadelphia Naval Shipyard

84. On December 10, 1990, the DOD issued the exclusive procedures which the Military Departments were to follow in making defense base closure and realignment recommendations.

85. In accordance with the Base Closure Act, the procedures required that all military installations be considered equally, `without regard to whether the installation has been previously considered or proposed for closure or realignment by the Department of Defense.'

86. In blatant contravention of the express language of the Base Closure Act, its own internal procedures and clear Congressional intent to establish an objective and fair process, the Navy used a completely arbitrary, subjective process designed to justify a pre-determined conclusion to close the Shipyard.

87. Documents that were withheld by the Navy until after the close of the Commission's public hearings established that, as early as December 19, 1990--prior to the DOD's establishment of a force structure plan or final criteria for evaluating base closures--the Secretary of the Navy had already decided to close the Shipyard.

88. On December 19, 1990, Admiral Peter Heckman, then Commander of the Naval Sea Systems Command, wrote a memorandum to the Chief of Naval Operations urging the Navy's reconsideration of its decision to close the Shipyard:

`While I realize that the Secretary has been briefed and has concurred with the proposal to mothball Philadelphia Naval Shipyard, I strongly recommend that this decision be reconsidered. It is more prudent to downsize Philadelphia Naval Shipyard . . .

`Further, I recommend that the drawdown of Philadelphia Naval Shipyard to an SRF size shipyard not be done until FY 95, as the shipyard is required to support scheduled workload until that time.' (Emphasis supplied.)

89. Although Admiral Heckman was responsible for
oversight of all Naval Shipyards, the Navy refused to allow him to become a part of the base closure process.

90. Admiral Heckman retired from the Navy on or about May 1, 1991. After his retirement, Admiral Heckman was instructed by the Assistant Secretary of the Navy, Donald Howard, that he was not to testify before the Commission at the public hearings on the Philadelphia Naval Shipyard.

91. The Navy predetermination to close the Philadelphia Naval Shipyard is confirmed by its treatment of other Naval Shipyards during the base closure process.

92. Navy guidelines expressly prohibited non-emergency capital upgrades of any military installations on the 1990 Base Closure List during the 1991 base closure process.

93. Nevertheless, on February 4, 1991--one day prior to the commencement of the Navy's force structure review process--the Chief Naval Officer requested $1.05 million to upgrade for nuclear certification a shipyard that was clearly subject to the base closure process: Long Beach Naval Shipyard.

94. Long Beach is the only shipyard other than Philadelphia that does not have a nuclear certification.

95. The Navy's decision to upgrade Long Beach not only violated its own guidelines but clearly establishes a predisposition by the Navy to close the Philadelphia Navy Shipyard.

I. The Navy Base Structure Committee's blatant disregard for its own evaluation results

96. In December 1990, the Secretary of the Navy established a six-member Base Structure Committee (`BSC') to conduct a base structure review and to determine the Navy's closure and realignment candidates.

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97. The BSC was charged with reviewing all installations inside the United States equally, `without regard to whether the installation was previously considered for closure or realignment.'

98. By applying their admittedly subjective judgment, the BSC candidly admitted that it arrived at base closure decisions that `differed from the assessments one might make using the raw empirical data.'

99. The BSC initially categorized all facilities according to function--e.g., Naval Air Stations, Naval Shipyards--to determine which categories possessed significant excess capacity.

100. The Navy then applied the eight selection criteria in two phases by assigning color codes to military bases in categories with excess capacity.

101. Phase I of the BSC's analysis required a consideration of the first four military criteria. After Phase I was completed, the Navy excluded those bases which it determined `were distinguished by virtue of their operational value,' i.e., those that it gave an overall `green' rating under the first four military criteria.

102. Under the Navy's rating system, a `green' rating received one point, a `yellow' rating received two points, and a
`red' rating (favoring closure) received three points.

103. The Navy's color-coded/point approach resulted in the following total point allocations to each of the eight Naval Shipyards in the United States:

4

Norfolk, VA

5

Philadelphia, PA

6

Charleston, SC

6

Mare Island, CA

6

Pearl Harbor, HI

6

Portsmouth, ME

6

Long Beach, CA

7

104. Puget Sound received a `green' rating for each of the first four military criteria and was therefore excluded from further closure consideration.

105. In accordance with the BSC base closure criteria, the seven remaining Naval Shipyards should have been evaluated under the remaining four non-military criteria set forth in Phase II.

106. Using the BSC's own rating system, the Philadelphia Naval Shipyard should have been treated the same as Charleston, Mare Island, Pearl Harbor and Portsmouth and better than Long Beach.

107. Ignoring its own rating system and in blatant disregard of the statutory mandate that all bases be considered `equally,' the Navy--for no apparent reason and without any supporting documentation or analysis--gave overall `green' ratings to three undeserving shipyards: Mare Island, which just like Philadelphia Naval Shipyard, received two `yellow' and two `green' ratings; Norfolk, which received three `green' and one `yellow' ratings; and Pearl Harbor, which received one `red' and three `green' ratings.

108. The BSC then arbitrarily, unilaterally and without reference to any one of the eight DOD criteria excluded all of the six nuclear-capable shipyards from any further review without providing any documentation or analysis to justify a drydock need for nuclear ships as compared with conventional carriers.

109. This process left only Long Beach (which is one of two California shipyards) and Philadelphia for further review.

110. To circumvent the fact that Long Beach scored poorly in three of the four military criteria and overall had the worst rating of all eight Naval Shipyards, the BSC then excluded Long Beach from further consideration contending that one of the drydocks at that shipyard could be used `to handle West Coast aircraft carriers (including CVN emergency work).' [Navy Report, Tab C, p. 10].

111. By this egregious process of elimination, the BSC was left with only one yard to consider for closure under the remaining four criteria, the Philadelphia Naval Shipyard. The BSC then performed a perfunctory application of the second four non-military criteria with respect to the Philadelphia Naval Shipyard to ensure its closure.

J. The Navy's force structure plan

112. The Base Closure Act required the Navy to create
a force-structure plan based on the Navy's inventory of its fleet and projections of work necessary to upgrade and maintain its fleet during a six year fiscal period. Base closure recommendations and decisions were to be based on this plan, pursuant to Section 2903(a) and (c) of the Base Closure Act.

113. The Navy's force structure plan and conclusions regarding the Navy's drydock needs fall far short of the statutory requirements. The plan fails to provide the requisite specificity necessary to determine how many large drydocks, such as those at the Shipyard, the Navy will need from 1992 through 1997, including the number and types of ships that will remain in the fleet and the number of anticipated repairs, overhaulds and refuelings required on those ships during the relevant time period.

114. In fact, the Navy's own April 1991 Report contradicts the conclusion that any of the Naval Shipyards should be closed.

115. The Navy's Reports stated that the Navy is currently fully utilizing its drydocks `in excess of 100%.' The Report also stated that the number of large amphibious ships is increasing and for 1994 and 1997 there will be insufficient naval drydocks to handle large carriers. [Navy Report, Tab C, p. 2]

116. In its Report, the Navy also determined that shipyard workloads would be virtually unaffected:

`While the Navy fleet in general is downsizing by 19%, the types of ships worked on by the Naval Shipyards is downsizing by only 1%, and in some cases is increasing (large Amphibious and AEGIS ships). Thus, the need for certain facilities to accomplish this work is not diminished.'--[Navy Report, Tab C, p. 2 (emphasis added)].

117. A March 1991 memorandum from Admiral Claman, Commander Naval Sea Systems Command, to the Chief of Naval Operations confirmed that the Navy's utilization of shipyards for large amphibious ships and other large vessels would be between 84.2% and 106.9% for fiscal years 1992 through 1997.

118. Since the Navy requires that Shipyards reserve 30% of their space for emergency repairs, it is clear that Shipyards, such as the Philadelphia Naval Shipyard, servicing large amphibious ships and other large vessels will have no `excess' capacity during the relevant six year period and should have been excluded from further review under the base closure process.

119. The Navy's failure to prepare and follow an adequate force structure plan substantially prejudiced Naval Shipyards, such as the Philadelphia Naval Shipyard, since Philadelphia has: (a) three of the Navy's five East Cost drydocks that are capable of handling large amphibious ships and other large vessels; and (b) two of only three East Coast drydocks capable of handling carriers.

120. A March 15, 1991 memo from Admiral Heckman to the Chief of Naval Operations recognized that `retention of a credible repair capability at Philadelphia for naval ships home ported in the Northeast area is the most cost effective
solution.' Admiral Heckman concluded that:

`[T]he workload distribution for naval shipyard in the 90's supports full operations at Philadelphia, through mid FY 95. As previously briefed, executing a realignment of Philadelphia Naval Shipyard in FY 93 will cause significant perturbations to carrier overhauling yard assignment and could result in an East Coast CV overhauling on the West Coast.'

121. Despite express requests for the foregoing information by interested members of Congress, the Navy deliberately withheld the Claman and Heckman memoranda from the GAO, the Commission, Congress and the public until after the close of the public hearings.

122. The BSC submitted its recommendations, including its proposal to close the Philadelphia Naval Shipyard, to the Secretary of the Navy.

123. The Secretary of the Navy submitted BSC's nominated bases for closure and realignment to the Secretary of Defense.

124. On April 12, 1991, Secretary Cheney issued the DOD's Base Closure Report. The Report adopted the Navy's proposals and recommended 43 base closures, including the Philadelphia Naval Shipyard.

K. The May 16, 1991 General Accounting Office report

125. The Base Closure Act provides for the GAO to monitor the activities of the Military Departments, the Defense Agencies and the Department of Defense in selecting bases for closure or realignment under the Act.

126. The GAO was required (a) to assist the Commission in its review and analysis of the Secretary of Defense's closure recommendations and (b) to provide the Commission and the Congress with a detailed analysis of the Secretary of Defense's recommendations and selection process. The GAO Report was also intended to describe how the DOD selection process was conducted and whether it met the requirements of the Act.

127. Despite the clear mandates of the Base Closure Act and the DOD's internal guidelines and regulations, the Navy failed to provide the GAO with sufficient documentation to support either its base closure process or its recommendations for closure.

128. The GAO's independent Report, entitled Observations on the Analyses Supporting Proposed Closures and Realignments, was issued on May 16, 1991, in accordance with the statutory mandate of the Base Closure Act. A copy of the relevant text of the GAO report is annexed hereto as Exhibit A.

129. The GAO Report found that the Army and Air Force could document their use of the force-structure plan and the military value criteria. Therefore, the GAO concluded that the base closure recommendations made by the Army and Air Force were `adequately supported.'

130. In stark contrast, the GAO concluded that the Navy's recommendations and processes were entirely inadequate.

131. The GAO Report concluded that the Navy did not offer sufficient documentation to prove whether or not its
process followed the force structure and selection criteria, thereby preventing the GAO from evaluating the Navy's specific recommendations for closure:

`We were unable to conduct an extensive review of the process the Navy used to recommend bases for closure or realignment, because the Navy did not adequately document its decision-making process or the results of its deliberations. In addition, the Navy did not establish an internal control plan to ensure the validity and accuracy of information used in its assessment as required by OSD.

`Due to the limited documentation of its process, we also could not assess the reasonableness of the Navy's recommendations for closures.'--[GAO Report at p. 46].

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132. In addition to the lack of adequate documentation, and the absence of any internal control plan, the GAO determined that it could not evaluate the Navy's `methodology' for reviewing air stations, shipyards, or labs. [GAO Report at pp. 46-48].

133. Significantly, the GAO Report stated that, on May 7, 1991, the Navy's BSC informed the GAO that the BSC had ignored the data prepared by its working groups because of the BSC's view that `much of the data were biased in favor of keeping bases open and were inadequate for an objective assessment of the Navy's basing needs.' According to the BSC, it therefore relied on informal briefings and meetings, many of which were in closed executive sessions. [GAO Report at p. 46].

134. The GAO Report identified three additional deficiencies in the Navy's process for determining base closures: (1) insufficient justification to support `the basis for the [BSC's] military value ratings for Navy installations'; (2) the implementation and use of an inconsistent color coding system to rate military bases; and (3) the Navy's failure to assign responsibility for developing and implementing an internal control plan to ensure the accuracy of information used by the Navy in its base structure reviews. [GAO Report at p. 48].

135. The GAO also discovered that, despite DOD guidance to the contrary, the Navy used budget data which did not use 1991 dollars as its baseline.

136. The GAO discovered inconsistencies in the Navy's service costs, savings estimates, payback calculations and recovery of closure costs. The GAO report concluded that the result of these inconsistencies was an overstatement of estimated annual savings and a shortening of the payback period for several closures.

137. The GAO Report also identified inconsistencies within the BSC's internal rating process, including the fact that the BSC had given identical ratings to two naval bases (Mare Island and Philadelphia Naval Shipyard) on each of the first four military selection criteria, but--without any discernable justification--had arbitrarily assigned an overall rating of green to one (Mare Island) and yellow to the other (Philadelphia Naval Shipyard). [GAO Report at p. 48].

138. Similarly, the BSC had assigned identical ratings to five naval bases but did not treat such bases equally. Again, the Philadelphia Naval Shipyard was not excluded from the closure process although four other naval shipyards which
received identical ratings were excluded from further review.

139. The GAO Report concluded that, since the BSC `did not document these differences,' the GAO `could not determine the rationale for its final decisions' and `could not comment on the Committee's closure and realignment recommendations based on the process.' [GAO Report at p. 48].

140. In sum, the GAO Report found that the Navy and its BSC:

(a) Had not treated all bases equally, as required by the Base Closure Act;

(b) Had not complied with the Secretary of Defense's first four military selection criteria, as required by the Base Closure Act;

(c) Had not complied with the Secretary of Defense's `record keeping' and `internal controls' requirements; and

(d) Had prevented the GAO from performing its statutory mandate of reviewing and analyzing the recommendations for Naval base closures made by the Secretary of Defense and transmitting to Congress and the Commission a report containing a detailed analysis of the Secretary of Defense's recommendations for Naval base closures and the Navy selection process.

L. Public Hearings

141. The Base Closure Act established the 1991 Defense Base Closure and Realignment Commission to ensure that `the [base closure] process is open.' [Report to President, p. 1-5].

142. The Base Closure Act therefore requires the Commission to conduct its proceedings in public and open its records and deliberations to public scrutiny.

143. The Commission expressly invited and received public testimony in Washington, D.C. from members of Congress.

144. By letter dated April 23, 1991, the Commission established five pages of procedures to govern Congressional testimony at the Commission's hearings. The Commission's procedures provided that:

`All members of Congress have the opportunity to testify before the Commission in Washington D.C. Members of Congress will have the opportunity to make introductory comments at regional hearings. However, their formal oral testimony and comments for the record should be presented at Washington, D.C. hearing.'

145. The Commission's official procedures also provided that the `recommended deadline for receipt of written material is May 20 to ensure that the Commission has adequate time to review all written documentation.'

146. In accordance with the Base Closure Act, the Commission scheduled and held 28 hearings across the United States.

147. Congressional testimony on the Philadelphia Naval Shipyard was scheduled in Washington, D.C. for May 22, 1991. The regional hearing regarding the Philadelphia Naval Shipyard was scheduled for May 24, 1991.

148. In violation of the Base Closure Act and other applicable law, additional documentation was thereafter provided to the Commission that was not subject to GAO analysis or public comment and debate.

149. In blatant violation of the Base Closure Act, closed meetings with the Navy's BSC were held by the Commission on May 24, 1991 after the public hearings were completed.

150. Moreover, on May 24, 1991--after the close of the public hearings--the Commission requested that the Navy's BSC provide it with additional information to `try to resolve missing gaps in the information provided.'

151. Thereafter, the Navy's BSC provided additional documents and information to the Commission, including COBRA analyses, data underlying the color coding ratings, data regarding the VCNO study and other information regarding Navy closure recommendations, without affording interested members of Congress or the public a meaningful opportunity to comment on such information at a public hearing.

152. Despite repeated demands by members of Congress for a public hearing on the additional information supplied by the Navy, the Commission refused to allow any public debate.

M. The July 1, 1991 Commission report to the President

153. On July 1, 1991, the Commission submitted its recommendations for the closure or realignment of U.S. military installations to the President.

154. In its July 1, 1991 Report to the President, the Commission stated:

`The Navy presented a special challenge to the Commission. Its selection process was more subjective and less documented than that of either the Army or the Air Force. To determine whether the Navy complied with the law, the Commission's staff held a series of meeting with members of the Navy's Base Structure Commission and other high ranking naval officers . . .'

These individuals responded to questions and supplied information to the Commission.

155. The Commission findings with respect to the Philadelphia Naval Shipyard were as follows:

`The Commission found that the overall public shipyard workload is falling significantly because of force reductions and budget limitations. The projected workload in nuclear shipyards during the 1990s was found to limit the potential for closing any nuclear shipyard until the late 1990s.

`The largest portion of Philadelphia's recent workload has been CV-SLEP, which the Navy desires to terminate. However, Congress has passed legislation that requires a CV-LSEP at Philadelphia. The Commission found that this CV-SLEP should be completed in mid-1996, about a year before the required closure date.

`Workload is available that could be diverted from public and private East Coast shipyards to Philadelphia to bring its activity up to levels that justify keeping it open. However, this would limit the Navy's ability to meet its target of putting 30 percent of its repair work in private yards . . .

`The Commission found that the combination of carrier-capable drydocks at Norfolk Naval Shipyard, Newport News Shipbuilding, and the mothballed drydocks at Philadelphia provide capacity for unplanned requirements.

156. The Commission exceeded its statutory authority in making base closure recommendations by considering the availability of privately-owned shipyards, such as Newport News, to provide emergency service for the Navy's fleet.

157. Consideration of private facilities as part of a force-structure plan to provide emergency service for the Navy's fleet is impermissible under the Base Closure Act and departs from long standing Navy strategic and operational requirements.

158. The Navy was fully aware of the need to keep the Philadelphia Naval Shipyard open, but withheld such information from the GAO, the Commission and the public. The March 1991 Admiral Claman memorandum to the Chief of Naval Operations clearly recognized that:

`Closure of Philadelphia Naval Shipyard, without retention of the large carrier capable dry docks creates a shortfall in dry dock capability for emergent dockings of aircraft carriers . . . Without the dry docks available at Philadelphia, the only other dock capable fo taking an emergent carrier docking is at Newport News Shipbuilding (NNSB). Exhibit C-7 illustrates this situation graphically. This dock is privately owned and its docking schedule is not controlled by the Navy. The cost to have NNSB provide a dedicated dock under contract is considered prohibitive.'

159. The Commission adopted the BSC's conclusion that the Shipyard should be closed based upon projected workload trends. However, the Navy's force structure plan lacked sufficient detail for the Commission to evaluate the Secretary's recommendations.

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160. The law requires the President to approve or disapprove the Commission's recommendations by July 15, 1991. If approved, the report will be sent to Congress. Unless Congress enacts a joint resolution disapproving the Commission's proposals within 45 legislative days (or prior to when Congress adjourns for the session), the Secretary must begin to close or realign those installations listed in the report.

161. In fact, the Navy failed to produce, and the Commission failed to obtain, detailed information about projected Naval Shipyard workloads.

162. The Navy failed to engage in a fair and objective process and did not treat all military installations equally in recommending the closure of the Shipyard.

163. The Navy deviated substantially from the force structure plan and base closure criteria in recommending the closure of the Shipyard.

164. The Navy failed to base its decision on each of the final selection criteria and failed to apply each of the eight criteria equally, fairly and objectively.

165. The Navy failed to provide all information used in making its base closure recommendations to the GAO and members of Congress and failed to consider all available information concerning the Shipyard, especially information which would have
prevented the BSC from recommending its closure.

166. The Commission's adoption of the DOD's recommended base closures and realignments also violated the procedural and substantive safeguards set forth in the Base Closure Act wth respect to other military installations, including its recommendations to close the Philadelphia Naval Station and the realignment and elimination of the Warminster Naval Air Development Center and the U.S. Army Corps of Engineers division and district management headquarters located in the Commonwealth of Pennsylvania .

167. The foregoing actions of the defendants are in bad faith, arbitrary, capricious and in violation of the law.

N. Irreparable injury

168. The foregong conduct of defendants will cause plaintiffs to suffer immediate and irreparable harm.

169. According to the Navy's December 1990 Final Environmental Impact Statement for Base Closure/Realignment of the Philadelphia Naval Shipyard (`FEIS'), the direct economic consequence of the proposed closure of the Philadelphia Naval Shipyards includes a reduction in present Navy employment in the Philadelphia region by 88 percent, which represents eliminating directly almost 15,000 employment positions and indirectly causing the loss of an additional 7,384 jobs in the Philadelphia area.

170. The FEIS stated that the proposed closure would add an estimated 16,856 workers to the unemployment rolls (a 17.4 percent increase) and increase unemployment in the geographical region from 3.8 percent (in 1989) to 4.5 percent of the work force.

171. The FEIS also stated that `many employees of Philadelphia Naval Shipyard would experience difficulty reentering the labor force without considerable retraining.'

172. According to the FEIS, direct income and expenditures that would be withdrawn from the Philadelphia region as a result of the proposed closure would total $536.9 million.

173. An Economic Impact Report prepared by the Pennsylvania Economy League (`PEL') and submitted to the Naval Facilities Engineering Command on October 17, 1990 by the Commonwealth of Pennsylvania and the State of New Jersey concluded that closing the Philadelphia Naval Shipyard would have a much greater impact on the economy of Philadelphia and the entire tri-state region than that set forth in the FEIS since the Shipyard is the largest employer in the Philadelphia area.

174. Economic activity connected with the Philadelphia Naval Shipyard accounts for for $2.1 billion in gross product in the Philadelphia metropolitan statistical area. This represent 1.45 percent of the region's total economic activity.

175. The PEL's Economic Impact Report concluded that the unemployment rate would jump 25 percent from 5.8 to 7.6 percent in the Philadelphia region, that the region would suffer a loss of $915 million in wage and salary income and retail sales would decline $382.8 million.

176. Plaintiffs do not have an adequate remedy at law.

177. There is presently an actual controversy between the parties, within the meaning of the Declaratory Judgment Act, 28 U.S.C. 2201-2202.

COUNT I--ALL PLAINTIFFS V. THE SECRETARY OF DEFENSE AND THE SECRETARY OF THE NAVY

178. Plaintiffs incorporate herein by reference paragraphs 1 through 177 above, as if fully set forth herein.

179. The Secretary of Defense, by and through his agent the Secretary of the Navy, adopted the list of closure and realignment recommendations made by the Navy's BSC in violation of the procedural and substantive safeguards and requirements set forth in the Base Closure Act, in that:

a. They failed to make available to the Commission, the GAO and Congress all information which was used by the Navy in making its recommendations to the Commission, in violation of Section 2903(c)(4) of the Base Closure Act;

b. They failed to provide the GAO with the data necessary for the GAO to perform its statutorily mandated duty to assist the Commission in its review and analysis of the recommendations for base closures made by the Navy and the Secretary of Defense, in violation of Section 2903(d)(5)(A) of the Base Closure Act;

c. They failed to provide the GAO with the data necessary for the GAO to perform its statutorily mandated duty to prepare and transmit to Congress and the Commission a detailed review and analysis of the Navy's and the Secretary of Defense's recommendations for Naval base Closures and the procedures employed by the Navy and the Secretary of Defense in arriving at such recommendations, in violation of Section 2903(d)(5)(B) of the Base Closure Act;

d. They failed to publish in the Federal Register and transmit to the congressional defense committees and to the Commission a summary of the selection process that resulted in the recommendation for closure for each installation, together with a justification for each recommendation, in violation of Sections 2903(c) (1) and (2) of the Base Closure Act;

e. They failed to consider all Naval installations inside the United States equally, without regard to whether the installations has been previously considered or proposed for closure or realignment, in violation of Section 2903(c)(3) of the Base Closure Act;

f. They failed to apply the eight final criteria adopted by DOD equally to all Naval installations in making their recommendations for Navy base closures, in violation of Section 2903(c)(1) of the Base Closure Act;

g. They utilized criteria which were not published and adopted in accordance with Section 2903 of the Base Closure Act;

h. They failed to implement record keeping and internal controls promulgated by DOD in order to insure an
accurate and fair decision-making process, in violation of the Base Closure Act; and

i. They failed to adopt a force structure plan for the Navy in compliance with Section 2903(a) of the Base Closure Act and failed to base their base closure recommendations on a force structure plan which complied with the Base Closure Act.

180. The Secretary of the Navy's and the Secretary of Defense's actions were arbitrary and capricious, not in conformity with law and will inflict substantial irreparable harm on the plaintiffs for which there is no adequate remedy at law.

Wherefore, plaintiffs respectfully request that this Court:

a. Find and declare that the list of Naval closure and realignment proposals provided by the Secretary of the Navy and the Secretary of Defense to the Commission on April 12, 1991 was developed in a manner inconsistent with the requirements of the Base Closure Act and is therefore void;

b. Find and declare that the Secretary of the Navy's and the Secretary of Defense's adoption of the list of closure and realignment recommendations, findings and conclusions made by the Navy's BSC was arbitrary and capricious, and otherwise not in conformity with law;

c. Pursuant to 5 U.S.C. 706(2), hold unlawful and void that portion of the list of closure and realignment proposals, findings and conclusions which were submitted by the Secretary of the Navy;

d. Enjoin the Secretary of Defense from taking any action based upon the list of closure and realignment proposals submitted by the Secretary of the Navy; and

e. Grant such other and further relief as this Court deems just and equitable.

COUNT II--ALL PLAINTIFFS V. THE BASE CLOSURE COMMISSION

181. Plaintiffs incorporate herein by reference paragraphs 1 through 180 above, as if fully set forth herein.

182. The Commission, in reviewing and makings its recommendations regarding the base closures submitted by the Secretary of the Navy, violated the procedural and substantive safeguards and requirements set forth in the Base Closure Act, in that:

a. It based its decision on a significant amount of substantive information supplied by the Navy which was not evaluated or even made available to the GAO or to Congress, in violation of the Base Closure Act;

b. It failed to ensure that the GAO performed its statutorily mandated duty of assisting the Commission in its review and analysis of the recommendations for base closures made by the Navy and the Secretary of Defense, in violation of Section 2903(d)(5)(A) of the Base Closure Act;

c. It failed to ensure that the GAO performed its
statutorily mandated duty of preparing and transmitting to Congress and the Commission a report containing a detailed review and analysis of the Navy's and the Secretary of Defense's recommendations for Naval base closures and the procedures employed by the Navy and the Secretary of Defense in arriving at such recommendations, in violation of Section 2903(d)(5)(B) of the Base Closure Act;

d. It decided to adopt the list of closure and realignment recommendations made by the Navy's BSC even though the GAO had found that the Navy and its BSC: (i) had not treated all bases equally, as required by the Base Closure Act; (ii) had not complied with the Secretary of Defense's first four military selection criteria, as required by the Base Closure Act; and (iii) had not complied with the Secretary of Defense's `record keeping' and `internal controls' requirements;

e. It failed to hold public hearings, in violation of section 2903(d)(1) of the Base Closure Act, because it did not include certain pivotal information regarding the Navy's recommendations and selection process in the record until after the close of the public hearings;

f. It failed to consider all Naval installations inside the United States equally, without regard to whether the installations had been previously considered or proposed for closure or realignment, in violation of Section 2903(c)(3) of the Base Closure Act;

g. It failed to apply the eight final criteria adopted by DOD equally to all Naval installations in making its recommendations for Navy base closures, in violation of Section 2903(c)(1) of the Base Closure Act;

h. It utilized criteria which were not published and adopted in accordance with Section 2903 of the Base Closure Act; and

i. It exceeded its statutory authority in making Naval base closure recommendations by considering privately-owned shipyards.

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183. The Commission's actions were arbitrary and capricious, not in conformity with law and will inflict substantial irreparable harm on the plaintiffs for which there is no adequate remedy at law.

WHEREFORE. plaintiffs respectfully request that this Court:

a. Find and declare that the Navy's list of closure and realignment recommendations, submitted by the Commission to the President on July 1, 1991, was adopted by the Commission in violation of the Base Closure Act and is therefore void;

b. Find and declare that the Commission's adoption of the list of closure and realignment recommendations, findings and conclusions made by the Navy's BSC was arbitrary and capricious, and otherwise not in conformity with law;

c. Pursuant to 5 U.S.C. 706(2), hold unlawful and void that portion of the list of closure and realignment recommendations, findings and conclusions which were submitted by
the Secretary of the Navy and adopted by the Commission;

d. Enjoin the Secretary of Defense from taking any action based upon the list of closure and realignment recommendations made by the Commission; and

e. Grant such other and further relief as this Court deems just and equitable.

COUNT III--LANDRY, REIL, IFPTE AND MTC V. ALL DEFENDANTS

184. Plaintiffs incorporate herein by reference paragraphs 1 through 183 above, as if fully set forth herein.

185. The defendants' actions constitute a violation of the plaintiffs' rights to Due Process as guaranteed under the Fifth Amendment of the United States Constitution.

186. The Base Closure Act expressly entitles the plaintiffs to a `fair process' by which it will be decided which military installations should be closed. Additionally, the Base Closure Act entitles the plaintiffs to have the Philadelphia Naval Shipyard remain open and in operation unless and until it is determined, in accordance with the Base Closure Act, that the closure of the Shipyard is warranted.

187. The defendants' disregard of the procedures set forth in the Base Closure Act, as more fully described in Counts I and II of this Complaint, impermissibly interfered with the rights which were granted to the plaintiffs under the Base Closure Act, and constitute violations of the Due Process Clause of the United States Constitution.

Wherefore, plaintiffs respectfully request that this Court:

a. Find and declare that defendents' actions in developing, adopting, and concurring in the Navy's list of closure and realignment recommendations provided by the Commission to the President on July 1, 1991 violated the plaintiffs' rights guaranteed by the Due Process Clause of the United States Constitution;

b. Pursuant to 5 U.S.C. 706(2), hold unlawful and void that portion of the list of closure and realignment proposals, findings and conclusions which were submitted by the Secretary of the Navy and adopted to the Commission;

c. Enjoin the Secretary of Defense from taking any action based upon the list of closure and realignment proposals submitted by the Secretary of the Navy and the Secretary of Defense and made by the Commission; and

d. Grant such other the further relief as this Court deems just and equitable.

Bruce W. Kauffman, I.D. No. 04466; David H. Pittinsky, I.D. No 04552; Camille J. Wolf I.D. No. 47307; Patrick T. Davish; I.D. No. 50400, John V. O'Hara; I.D. No. 57681, Mark A. Nation; I.D. No. 59150, Dilworth, Paxson, Kalish & Kauffman; and Sen. Arlen Specter; Attorneys for Plaintiffs.

Dated: July 8, 1991.

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U.S. General Accounting Office Report to the Congress and the Chairman, Defense Base Closure and Realignment Commission

[U.S. GENERAL ACCOUNTING OFFICE REPORT TO THE CONGRESS AND THE CHAIRMAN, DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION]

Military Bases: Observations on the Analyses Supporting Proposed Closures and Realignments, May 1991

EXECUTIVE SUMMARY

Purpose

The Department of Defense (DOD) spends billions of dollars annually operating its military bases in the United States. Events taking place throughout the world and within the United States have caused a reevaluation of our military strategy, and U.S. forces are to be significantly reduced. DOD and the Congress both recognize that with a reduced force structure there is a need to close and realign military installations.

The Defense Base Closure and Realignment Act of 1990 (P.L. 101-510) established a new process for DOD base closure and realignment actions within the United States. The act established an independent Defense Base Closure and Realignment Commission and specified procedures that the President, DOD, GAO, and the Commission must follow, through 1995, in order for bases to be closed or realigned.

This report responds to the act's requirement that GAO provide the Congress and the Commission, by May 15, 1991, an analysis of the Secretary of Defense's April 12, 1991, recommendations of bases for closure and realignment and the selection process used. GAO also received numerous letters, requests, and materials in connection with this review from congressmen, state and local government officials, and private citizens; however, due to the lack of time available to respond to each of the issues raised, GAO has submitted the materials to the Commission for its use.

Background

In 1988, the Secretary of Defense chartered the Commission on Base Realignment and Closure to review military installations within the United States for realignment and closure. Later that year the Commission recommended that 145 installations be closed or realigned. The Secretary of Defense and the Congress accepted all the Commission's recommendations.

The Secretary of Defense unilaterally recommended additional closures and realignments on January 29, 1990, as a result of the shrinking defense budget. The Congress subsequently passed the Defense Base Closure and Realignment Act of 1990, which halted any closure actions based on the January 29, 1990, list and required all installations in the United States to be compared equally against (1) criteria to be developed by DOD and (2) the future years' Force Structure Plan (fiscal years 1992 to 1997).

The final eight criteria against which the April 12, 1991, list of proposed military installation closures and realignments was to be measured included four related to the military value of the
installations and four others that addressed the number of years needed to recover the costs of closure and realignment; the economic impact on communities; the ability of both the existing and potential receiving communities; infrastructure to support forces, missions, and personnel; and the environmental impact. DOD guidance provided to the services directed that they give priority to the four criteria that addressed the military value of installations.

Results in brief

GAO agrees that a reduced military force structure requires that military installations be closed and realigned. The DOD process, when properly implemented, allows for a reduction in the U.S. military base structure by emphasizing the military value of the installations. Indeed, DOD successfully nominated 43 bases for closure and 28 for realignment. This represents a significant start in the process to propose bases for closure and realignment every other year for the next 6 years.

The Army and the Air Force can document the use of DOD's Force Structure Plan and the four military value criteria in the selection process. GAO found some inconsistencies in the way they developed military value rankings for quantifiable attributes used to compare similar installations; however, GAO believes those inconsistencies were not significant. GAO considers the closure and realignment recommendations made by the Army and the Air Force to be adequately supported.

Although the Navy had insufficient documentation to support its efforts, which precluded GAO from evaluating the Navy's process, this does not mean that Navy bases should not be closed. However, since the Navy did not document the rationale for its decisions, GAO was unable to analyze its specific closure and realignment recommendations. As an alternative means of evaluating the Navy's recommendations, GAO looked at ship berthing capacity in comparison to the Force Structure Plan. After analyzing capacity data, GAO found that the Navy will have significant excess berthing capacity if only the recommended facilities are closed. GAO found that changes have occurred in the strategic homeporting concept, which when combined with excess available pier space for berthing ships, supports the recommendation for fewer Navy bases.

Although recognizing that differences exist in the composition and functions of each service's bases, GAO is concerned that DOD's guidance allowed estimating processes and cost factors used by the services to vary. GAO analyzed the sensitivity of years to recover closing costs (the projected payback period) for each closure or realignment to 50 percent and 100 percent increases in one-time costs. The analysis showed that the payback period for many of the recommendations did not substantially increase. There
are several recommended closure and realignment actions, however, where the payback is sensitive to one-time costs.

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PRINCIPAL FINDINGS

The Army's process and recommendations

The Army established the Total Army Basing Study group in 1990 to develop a total Army basing strategy and then tasked it to recommend potential closures and realignments. The Army used a two-phased approach to evaluate potential bases for closure or realignment that was designed to treat all bases equally. In phase I, it categorized all its installations by major mission categories and evaluated their military value in quantitative terms. The Army Audit Agency was involved in the process to review and verify data collected for the quantitative analysis. In phase II, the Army used the Force Structure Plan, the phase I results, and the major commands' future plans. It also considered (1) the economic payback for possible alternatives and (2) the socioeconomic and environmental impacts on the communities involved in the final proposed closures.

Because the Army's process was well documented, which enabled GAO to evaluate the process, and the Army Audit Agency provided a check in the process, GAO believes that the resulting recommendations were well supported.

The Air Force's process and recommendations

The Air Force process was designed to treat all bases equally, and the selections were based on DOD's criteria and the Force Structure Plan. The process emphasized the first four criteria, which address military value. Also, the judgments of the Secretary of the Air Force and individual members of the Air Force Base Closure Executive Group, which was supported by a working group, were a part of the process.

The Air Force initially identified all Air Force-owned property within the United States and then excluded 35 active components bases from the process after doing a (1) capacity analysis and (2) mission-essential analysis. The 51 remaining active component bases were then rated on the basis of approximately 80 subelements for DOD's eight criteria. The Air Force also considered Reserve Component bases for potential closure or realignment using a slightly different process. As a result of these assessments, the Secretary of the Air Force then recommended closing 14 bases and realigning 1 base. GAO's analysis focused on the data supporting the closure or realignment decisions. Generally, GAO found that the rationale was adequately supported by documentation.

The Navy's process and recommendations

Due to inadequate documentation of the process used by the Navy, GAO was unable to independently evaluate the relative military value of the bases considered. Further, the Navy did not establish required internal controls to ensure the accuracy of the data used.

According to the Navy, it established a Base Structure Committee to conduct its closure process. The Committee decided that the input it received from its working group was biased in favor of keeping bases open. Thus, the Committee based its recommendations on information provided during meetings with various Navy and Marine Corps headquarters officials and representatives from various field organizations.

GAO's review of the Navy's ship berthing capacity studies found that there would be significant excess space beyond what the Committee calculated, even if the bases recommended for closure were included.

COBRA model used in cost savings estimates

The revised Cost of Base Realignment Actions (COBRA) model addresses a full range of factors for estimating the costs, savings, and payback period related to closure and realignment actions. GAO found cases where the services used inaccurate data in the model. GAO also found that the cost estimating process ignored the cost of Medicare to the federal government. However, overall, GAO believes that the recommendations made for base closings and realignments offer an opportunity for substantial savings.

DOD did not ensure cost comparability

Without DOD oversight of the COBRA cost estimating process, each service approached common problems in different ways. Although DOD called for submission of cost estimates expressed in fiscal year 1991 dollars, the services used budget data for other than 1991 dollars as their basedlines for estimating costs and savings. Service costs and savings estimates, as well as payback calculations, did not consistently rely on fiscal year 1991 input data. These errors could reduce estimated annual savings and lengthen the payback period for several closures.

Recommendations

GAO recommends that the Secretary of Defense:

Require the Secretary of the Navy to submit to the Defense Base Closure and Realignment Commission specific details on the manner in which its Base Structure Committee compared based to develop closure and realignment recommendations and ensure the use of consistent procedures and practices among the services in future base closure and realignment reviews.

GAO also recommends that the Chairman, Defense Base Closure and Realignment Commission:

Consider, in evaluating the Navy requirement for bases, the impact of excess space for ship berths on base requirements and

Consider for all the services the effects of incorrect cost and savings estimates on all proposed base closures and realignments, using the results of GAO's sensitivity analysis.

CHAPTER 4: THE NAVY'S BASE CLOSURE AND REALIGNMENT PROCESS AND ASSOCIATED RECOMMENDATIONS

We were unable to conduct an extensive review of the process the Navy used to recommend bases for closure or realignment, because the Navy did not adequately document its decision-making process or the results of its deliberations. In addition, the Navy did not establish an internal control plan to ensure the validity and accuracy of information used on its assessment as required by OSD.

Due to the limited documentation of its process, we also could not assess the reasonableness of the Navy's recommendations for closures. However, we reviewed and recalculated the Navy's ship berthing capacity analysis and found that excess capacity would remain, even with the closure of recommended bases.

THE NAVY'S PROCESS AS DESCRIBED BY NAVY OFFICIALS

The Navy's Base Structure Committee, which was charged with making base closure and realignment recommendations, began its review of the Navy's basing structure in late January 1991. However, the Committee did not fully explain its process to us until May 7, 1991, when it informed us that after review of data prepared by its working group, the Base Structure Committee decided that much of the data were biased in favor of keeping bases open and were inadequate for an objective assessment of the Navy's basing needs. Its review, therefore, emphasized a series of briefings and meetings attended by Committee members, Navy and Marine Corps headquarters officials, and representatives of field activities. According to Committee members, decisions made during the process were sometimes made in the presence of everyone in the meetings and were clear to everyone in attendance. In other cases, the decisions were made by the Committee in closed executive sessions. Bases on this review, the Committee proposed closure and realignment actions to the Secretary of the Navy on March 21, 1991.

We reviewed the charts that were used in the presentations to the Committee. These charts were generally in outline form. Our review of this information showed that presentations were organized by 23 Navy and 6 Marine Corps categories representing the various Navy functions and missions. For example, the category `naval stations' included bases that have deep water harbors and piers and serve as home bases for Navy surface ships and aircraft carriers. The category `naval air stations' included bases that have runways and hangars and serve as home bases for aircraft. Other categories included submarine bases, shipyards, aviation depots, supply centers/depots, Marine Corps bases, Marine Corps air stations, reserve centers, and RDE&E activities.

The Base Structure Committee told us that a capacity analysis was then discussed for each functional category, which compared the 1977 force structure facility requirements against the existing inventory. Critical factors were identified for each category and served as units of measure for capacity. For example, pier space was used as the primary unit of measure for naval stations, and airfield apron and hangar space were used for naval air stations.

Of the eight categories of bases the Committee retained for further closure and realignment analysis, four were retained because the Base Structure Committee identified potential excess capacity: (1) naval stations, (2) naval air stations, (3) shipyards and (4) Marine Corps air stations. Two other categories--the training and construction battalion centers categories--were retained for further analysis, because they showed potential excess capacity in segments of the overall categories. The medical category was also retained because of the link between medical facilities and major installations that were being evaluated for closure or realignment. Finally, the RDT&E category was retained for analysis based on a mandated requirement to reduce personnel by 20 percent.

A military value rating was then assigned by the Base Structure Committee to each base in all the categories being analyzed except for the medical category. 1

Committee members told us that they rated each installation using the first four DOD selection criteria, which addressed military value, and then they independently assigned each installation an overall color-coded rating.

1 Three hospitals were reviewed because three installations with hospitals were being considered for closure: Orlando Naval Training Center. Whidbey Island Naval Air Station, and Long Beach Naval Station.

Bases receiving an overall green rating were excluded from further study, according to Committee members. For example, in the naval stations category the base receiving an overall green were Coronado, Guam, Ingleside, Little Creek, Mayport, Mobile, New York (Staten Island), Norfolk, Pascagoula, Pearl Harbor, Puget Sound/Everett, and San Diego. The Committee continued to evaluate bases that were given an oveall rating of yellow or red. Additional bases were excluded from further review because of their unique assets, geographic location, strategic importance, or operational value, leaving 19 bases and the RDT&E category to be evaluated for closure.

Committee members told us they then performed a `quick estimate' cost-benefit analysis of each of the remaining bases to determine the feasibility of closing them. After making its final decisions, a full COBRA analysis for those closure candidates was conducted.
Local economic and environmental impact analyses were also done for the closure candidates.

The Committee proposed closing 11 bases and 10 RDT&E facilities. It also recommended that 1 base and 16 RDT&E facilities be realigned. In addition, three hospitals were proposed to be closed as a result of the Committee's decisions.

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GAO'S VIEWS ON THE NAVY'S PROCESS

In addition to the limitations placed on our review by the lack of adequate documentation, we identified three problems with the Navy's process. First, due to the lack of supporing documentation, we could not determine the basis for the Committee's military value ratings for Navy installations. In late March, we received selected data given to the Committee by its Working Group. This information was provided to us, but we were not advised unitl May 7, 1991, that the Committee had decided that much of this data were biased in favor of keeping bases open. In mid-April, the Base Structure Committee provided us with four additional volumes of material that consisted primarily of briefing charts that were basically outlines of matters and data to be discussed, without any explanation or supporting data. Also, Committee members said they did not prepare minutes of their deliberations.

Second, we identified apparent inconsistencies within the Committee's internal rating process. For example, the Committee had given identical ratings to two naval stations on each of the first four DOD selection criteria but had assigned an overall rating of green to one and yellow to the other. Similarly, the Committee had assigned identical ratings to six naval air stations for the first four DOD selection criteria. Four bases were assigned an overall rating of yellow and two an overall rating of green. These inconsistencies are significant because any base given an overall rating of green, based on the first four DOD selection criteria, was excluded from further closure or realignment consideration. In explanation, Committee members stated that `not all yellows are equal' and `not all greens are equal.' Since the Committee did not document these differences, we could not determine the rationale for its final decisions.

Lastly, although required by OSD policy guidance to develop and implement an internal control plan for its base structure reviews, the Navy did not assign, responsibility for developing and implementing such a plan.

GAO'S VIEWS ON THE CLOSURE AND REALIGNMENT RECOMMENDATIONS

Because the Committee did not document the rationale for its decisions, we could not comment on the Committee's closure and realignment recommendations based on the process. As an alternative, we looked at ship berthing capacity of naval stations in comparison to the Force Structure Plan because naval stations are a major category of the Navy's facilities. Also, we have conducted prior work and have ongoing work related to homeporting needs. Data obtained from the Navy's Assistant Chief of Naval Operations (Surface Warfare) showed that the most appropriate indicator for naval station requirements is ship berthing capacity. An analysis of the capacity data showed the Navy will have excess capacity remaining if only the four recommended naval stations are closed.

The Navy's capacity analysis indicates an inventory of 257.6 thousand feet of berthing (KFB) at naval stations and a requirement of 174.2 KFB, leaving an excess of 83.4 KFB. This excess represents the capacity at naval stations worldwide and also includes some inadequate berthing space. In addition, 14.5 KFB of berthing space is available at facilities other than naval stations.

When we subtracted the 75.2 KFB identified with space associated with (1) overseas facilities, (2) recommended closures, and (3) inadequate berting facilities, 22.7 KFB of excess berthing capacity remains (see table 4.1).

In the U.S. District Court for the Eastern District of Pennsylvania

[IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA]

Sen. Arlen Specter, Sen. Harris Wofford, Sen. Bill Bradley, Sen. Frank R. Lautenberg, Governor Robert P. Casey, Commonwealth of Pennsylvania, Pennsylvania Attorney General Ernest D. Preate, Jr., Rep. Curt Weldon, Rep. Thomas Foglietta, Rep. Robert Andrews, Rep. R. Lawrence Coughlin, City of Philadelphia, Howard J. Landry, and International Federation of Professional and Technical Engineers, Local 3, and William F. Reil and Metal Trades Council, Local 687 Machinists, plaintiffs, v. H. Lawrence Garrett, III, Secretary of Navy, Richard Cheney, Secretary of Defense, the Defense Base Closure and Realignment Commission and its members James A. Courter, William L. Ball, III, Howard H. Callaway, Duane H. Cassidy, Arthur Levitt, Jr., James C. Smith, II, and Robert D. Stuart, Jr., defendants

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' REQUEST FOR DECLARATORY RELIEF

Plaintiffs United States Senator Arlen Specter, United States Senator Harris Wofford, United States Senator Bill Bradley, United States Senator Frank R. Lautenberg, Governor Robert P. Casey, Commonwealth of Pennsylvania, Pennsylvania Attorney General Ernest D. Preate, Jr., United States Representatives Curt Weldon, Thomas Foglietta, Robert Andrews and R. Lawrence Coughlin, City of Philadelphia, Howard J. Landry, International Federation of Professional and Technical Engineers, Local 3, William F. Reil and Metal Trades Council Local 687 Machinists hereby respectfully submit, by their undersigned counsel, this Memorandum of Law in Support of the Complaint for Declaratory Judgment filed contemporaneously herewith.

I. INTRODUCTION

By their Complaint, plaintiffs seek a declaratory judgment to prevent the unlawful closing of the Philadelphia Naval Shipyard (also referred to as the `Shipyard'), the Philadelphia area's largest employer. The actions taken by defendants with regard to the Shipyard have violated the express mandates of the Defense Base Closure and Realignment Act of 1990 (the `Base Closure Act'), Public Law 101-510, Title XXIX, Sec. 2901-2910 (November 5, 1990), and thus precluded an independent, equal and fair process for closing and realigning military installations. In particular, defendants have failed to follow numerous express statutorily prescribed procedural and substantive safeguards. Defendants' actions have substantially prejudiced the interests of plaintiffs herein and are subject to immediate judicial review.

II. STATEMENT OF FACTS

A full exposition of the facts underlying this matter is contained in the Complaint, which is incorporated herein by reference.

III. ARGUMENT

A. The actions of defendants taken pursuant to the Base Closure Act are subject to judicial review

It is axiomatic that `judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.' Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967); National Treasury Employees Union v. United States Merit System, 743 F.2d 895, 906 (D.C. Cir. 1984); see also Society Hill Civic Association v. Harris, 632 F.2d 1045, 1055 (3d Cir. 1980). 1

In recognition of this principle, the Administrative Procedure Act, 5 U.S.C. 701 et seq. (`APA'), establishes a strong presumption of reviewability. See, e.g., Kirby v. United States Department of Housing & Urban Development, 675 F.2d 60, 67 (3d Cir. 1982 (`The Supreme Court has made it clear that there is a strong presumption that agency action is reviewable.').

1 There can be little doubt that the DOD, the Department of the Navy and the Commission are administrative agencies, and that the actions challenged herein constitute final agency actions. See 5 U.S.C. Sec. 551(1) (regarding the definition of `administrative agencies'); Solar Turbines, Inc. v. Seif, 879 F.2d 1073, 1080-81 (3d Cir. 1989) (discussing the definition of `final agency action').

The Supreme Court further elaborated on this theme in Abbott Labs, holding that the APA's `generous review provisions must be given a hospitable interpretation,' and that `only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.' 387 U.S. at 141 (citations omitted); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); Society Hill Civic Association, 632 F.2d at 1055. Section 702 of the APA thus provides:

`A person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.'

5 U.S.C. 702. This broad grant of the right to judicial review is limited only `to the extent that statutes preclude judicial review' or `agency action is committed to agency discretion by law.' 5 U.S.C. Sec. 701(a). Both of these exceptions are to be read exceedingly narrowly, and neither has any applicability to the instant action. See Heckler v. Chaney, 470 U.S. 821, 829 (1984); State of Florida, Dept. of Business Regulation v. United States Dept. of Interior, 768 F.2d 1248, 1255 (11th Cir. 1985).

The first exception `requires explicit statutory language precluding review,' which is plainly absent from the Base Closure Act. See California Human Development Corp. v. Brock, 762 F.2d 1044, 1048 n. 28 (D.C. Cir. 1985). The second exception is likewise inapplicable, as it is strictly limited to those `rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.' Overton Park, supra, 401 U.S. at 410 (quoting legislative history of the APA); Society Hill Civic Assoc., 632 F.2d at 1045. Given the elaborate procedural and substantive safeguards established by the Base Closure Act, and the previous history which provided those safeguards, there is manifestly `law to apply.'

Moreover, the Third Circuit has held that review is always available, notwithstanding this exception, for violations of statutory procedures of the sort involved in the instant action:

`Even when agency action is determined to have been committed to agency discretion by law, that determination does not completely insulate the action from judicial review. As this court has noted, a court may in any event consider allegations that the agency lacked jurisdiction, that the agency's decision was occasioned by impermissible influences, such as fraud or bribery, or that the decision violates constitutional, statutory or regulatory command. For the APA circumscribes judicial review only to the extent that . . . agency action is committed to agency discretion by law; it does not foreclose judicial review altogether.'

Kirby, 675 F.2d at 67 (quoting Local 2855 AFGE v. United States, 602 F.2d 574, 578 (3d Cir. 1979)) (underlined emphasis added; bold emphasis in original).

Accordingly, the blatant failure of the Secretary of Defense, the Secretary of the Navy and the Commission to follow the unambiguous statutory command of the Base Closure Act has resulted in flawed agency actions which are clearly subjected to judicial review by this Court under the APA.

[Page: S9252]

B. The defendant's blatant failure to follow the unambiguous procedural and substantive safeguards of the Base Closure Act Mandates a declaration that the list of recommended closures and realignments be declared void insofar as it relates to naval facilities.

As the Complaint filed in this matter demonstrates, the Secretary of Defense, the Secretary of the Navy and the Commission have blatantly disregarded not only the procedural and substantive safeguards governing base closures expressly mandated by the Base Closure Act, but also their own procedures and regulations promulgated pursuant to the Base Closure Act. These violations have inflicted substantial prejudice to the interests of the plaintiffs herein contrary to the express objective of Congress in adoping the Base Closure Act.

The APA specifically provides for the review of agency action to determine whether it complies with statutory mandates and statutorily prescribed procedures:

The reviewing court shall--

* * * * *

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege or immunity;

* * * * *

(D) without observance of procedure required by law;

5. U.S.C. 706(2)(A)(B)((D). The actions of the defendants herein were plainly `not in accordance with law' and `without observance of procedure required by law' (i.e., the Base Closure Act) and were `contrary to constitutional right' (i.e., the Due Process Clause of the Fifth Amendment).

Furthermore, it is clear that a reviewing court must carefully examine the challenged actions `to determine independently that the [agencies have] not acted unfairly or in disregard of the statutorily prescribed procedures. . . .' Natural Resources Defense Council v. Environmental Protection Agency, 790 F.2d 289, 297 (3d. Cir. 1986) (emphasis added). Equally importantly, this Court must invalidate agency actions which `are inconsistent with a stautory mandate or that frustrate a statutory policy.' Department of Navy v. Federal Labor Relations Authority. 840 F.2d 1131, 1134 (3d Cir. 1988), cert. denied, 488 U.S. 881 (1988). In this regard, the Court of Appeals for the District of Columbia has recognized the authority of a reviewing court to closely scrutinize agency action which is alleged to violate statutorily prescribed procedures:

`Even more so than our review of EPA's statutory interpretations, our review of its procedural integrity in promulgating the regulation before us is the product of our independent judgment, and our main reliance in ensuring that, despite its broad discretion, the Agency has not acted unfairly or in disregard of the statutorily prescribed procedures. [citation omitted] Our assertion of judicial independence in carrying out the procedural aspect of the review function derives from this country's historical reliance on the courts as the exponents of procedural fairness.'

Weyerhouser Company v. Costle, 590 F.2d 1011, 1027 (D.C. Cir. 1978) (emphasis added); see also Natural Resources Defense Council, Inc. v. S.E.C., 606 F.2d 1031, 1048 (D.C. Cir. 1979) (`Our review of an agency's procedural compliance with statutory norms is an exacting one.') Given that the process which resulted in the defendants' recommendation to close the Philadelphia Naval Shipyard could hardly have been more unfair or have departed by a wider margin from the statutorily prescribed procedures, it is mainfestly within the competence of this Court to review that process and declare its results void insofar as Navy bases are concerned.

C. The process by which the Commission arrived at its list of recommended closures of naval bases was riddled with procedural irregularities and substantive violations of the Base Closure Act

1. The Navy's failure to provide the data necessary for the GAO to perform its important statutory duty under the base Closure Act was a violation of the act.

The Base Closure Act specifically provides that the GAO is to play a critical role in ensuring the integrity and fairness of the Commission's process. Thus, Section 2903(d)(5) requires the Comptroller General to: (1) assist the Commission in its review and analysis of the recommendations for base closures made by the Navy and the Secretary of Defense; and (2) transmit to the Congress and the Commission `a report containing a detailed analysis of the Secretary's recommendations and selection process.'

In order to permit the GAO to perform its statutorily mandated function, the Base Closure Act specifically imposes upon the Secretary of Defense the following duty:

`The Secretary shall make available to the Commission and the Comptroller General of the United States all information used by the Department in making its recommendations to the Commission for closures and realignments.'

10 U.S.C. 2903(c)(4) (emphasis supplied). The Secretary of Defense failed to provide this information to the GAO.

As a direct result of the Secretary's violation of the Base Closure Act, the GAO was disabled from both assisting the Commission in its review and analysis of the Navy base closure
recommendations and providing the `detailed analysis of the Secretary's recommendations and selection process' as required by the Base Closure Act. Thus, on May 16, 1991, the GAO published its report concluding that the Navy's documentation was patently insufficient:

`We were unable to conduct an extensive review of the process the Navy used to recommend bases for closure or realignment, because the Navy did not adequately document its decision-making process or the results of its deliberations. In addition, the Navy did not establish an internal control plan to ensure the validity and accuracy of information used in its assessment as required by OSD.

`Due to the limited documentation of its process, we also could not assess the reasonableness of the Navy's recommendations for closures.'

See GAO Report to the Commission dated May 16, 1991 (the `GAO Report') at p.46, a true and correct copy of which is attached to the Complaint as Exhibit A.

In addition to the lack of adequate documentation, the GAO report identified three deficiencies in the Navy's process for determining base closures: (1) insufficient justification to support the basis for the Navy Base Structure Committee's (`BSC') military value ratings of Navy installations; (2) the implementation and use of an unclear, unequal and inconsistent color coding system to rate military bases; 2

and (3) the Navy's failure to assign responsibility for developing and implementing an internal control plan to ensure the accuracy of information used by the Navy in its base structure reviews, as required by the Office of the Secretary of Defense policy guidelines. 3

[GAO Report at p. 48]

2 This procedural irregularity is discussed, infra, at 14-17.

3 This procedural irregularity is discussed, infra, at 17-19.

The GAO also identified inconsistencies within the Committee's internal rating process, including the fact that the BSC had given identical ratings to two naval stations--(Mare Island and the Philadelphia Naval Shipyard)--on each of the first four military selection criteria but had assigned an overall higher rating of green to Mare Island and an overall lower rating of yellow to the Philadelphia Naval Shipyard. Similarly, the BSC had assigned identical ratings to six naval stations but did not treat them equally. 4

The Philadelphia Naval Shipyard was not excluded from the base closure process by the BSC, although the five other naval stations which received identical or worse ratings were excluded from further review.

4 See, infra, at 14-17.

The GAO Report concluded that since the BSC `did not document these differences,' the GAO `could not determine the rationale for its final decisions' and could not comment on the Committee's closure and realignment recommendations based on the process.' The Secretary thus plainly failed to meet the express requirements of the Base Closure Act, thereby disabling the GAO from submitting a report containing a detailed analysis of the Secretary's recommendations and selection process.

Indeed, on May 7, 1991, shortly before the GAO disseminated its report, the BSC admitted that `much of the [Navy's] data were biased in favor of keeping bases open and were inadequate for an objective assessment of the Navy's basing needs.' 5

[GAO Report at p. 46] As a result, the BSC admitted that it had reached its decisions through a series of informal meetings, many of which were closed executive sessions. [GAO Report at p. 46] The Navy's admittedly ad hoc approach to base closure recommendations flies in the face of the procedural and substantive safeguards and requirements established by the Base Closure Act.

5 This admission is especially significant since the BSC's process involved excluding 7 of 8 shipyards from the base closure process, thereby leaving only the Philadelphia Naval Shipyard for possible closure. See, infra, at 15-17.

This egregious violation of the Base Closure Act clearly requires that this Court declare void that portion of the Commission's recommendations for base closures and realignments which relate to Navy facilities See, e.g., Kirby, 675 F.2d at 68.

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2. The Commission's Failure To Provide Meaningful Public Hearings Is A Violation Of The Base Closure Act.

In accordance with the Congressional objective of ensuring the procedural integrity of the base closure and realignment process, the Base Closure Act expressly provides that the Commission shall conduct public hearings on the Secretary's recommendations. 10 U.S.C.2904(d). The Base Closure Act also requires the Commission to open its records and deliberations to public scrutiny. 10 U.S.C. Sec. 2902(e)(2)(A)(B).

Thus, the Commission expressly invited and received public testimony in Washington, DC from members of Congress. By letter dated April 23, 1991, the Commission established procedures to govern Congressional testimony at the hearings:

`All members of Congress have the opportunity to testify before the Commission in Washington DC. Members of Congress will have the opportunity to make introductory comments at regional hearings. However, their formal oral testimony and comments for the record should be presented at the Washington, DC hearing.'

The Commission's official procedures also provided that the `recommended deadline for receipt of written material is May 20 to ensure that the Commission has adequate time to review all written documentation.'

In accordance with the Base Closure Act, the Commission scheduled and held 28 hearings across the United States. Congressional testimony on the Philadelphia Naval Shipyard was scheduled in Washington, DC for May 22, 1991. The regional hearing regarding the Philadelphia Naval Shipyard was scheduled for May 24, 1991. In violation of the Base Closure Act and other applicable law, additional documentation was thereafter provided to the Commission that was not subject to GAO analysis or public comment and debate.

In blatant violation of the Base Closure Act, closed meetings with the Navy's BSC were held by the Commission on May 24, 1991 after the public hearings were completed. Moreover, on May 24, 1991--after the close of the public hearings--the Commission requested that the Navy's BSC provide it with additional information to `try to resolve missing gaps in the information provided.' Thereafter, the Navy's BSC provided additional documents and information to the Commission without affording interested members of Congress or the public a meaningful opportunity to comment on such information at a public hearing.

Under these circumstances, the requirement of public hearings in the Base Closure Act has plainly been violated. See, e.g., National Wildlife Federation v. Marsh, 568 F.Supp. 985, 994 (D.D.C. 1983); Joseph v. Adams, 467 F. Supp. 141, 160-61 (E.D. Mich. 1978); see also Monongahela Power Company v. Marsh, 1988 WL 84262 (D.D.C. 1988). The facts and holding of National Wildlife Federation are particularly relevant to the instant case and compel the conclusion that the list of recommended closures and realignments of Navy bases should be declared void. The plaintiffs in National Wildlife Federation brought suit against the Secretary of the Army seeking a declaration that a dredging and construction permit issued by the Army was invalid. The plaintiff asserted that the permit was invalid because the Army relied upon a staff report which was not made a part of the record until after the public hearings were held. According to the plaintiff, the consideration of this staff evaluation only after the close of the period for public comment violated its right to meaningfully participate in the statutorily required public hearings.

The Court held that the inclusion of important data in the record after the conclusion of public hearings had in fact violated the relevant statute, stating in terms equally applicable here:

`[T]he opportunity to comment and the right to a hearing both necessarily require that the Army present for public scrutiny the rationale and pivotal data underlying its proposed action before the close of the comment and hearing period. Unfortunately, that requirement was not satisfied in the administrative proceeding here. After a careful examination of the administrative record, the Court finds that the inclusion of the Staff Evaluation in the administrative record after the close of the comment and hearing period had the effect of shielding the essential data and the agency's rationale from public hearing and comment.'

National Wildlife Federation, 568 F. Supp. at 994 (emphasis in original). The Court concluded in this same vein: `Only when the public is adequately informed can there be any exchange of views and any real dialogue as to the final decision. And without such dialogue any notion of real public participation is necessarily an illusion.' 568 F. Supp. at 993 (quoting U.S. Lines v. Federal Maritime Commission, 584 F.2d 519, 540 (D.C. Cir. 1978)); see also Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974).

Accordingly, the Navy's failure to disclose important and material information and documentation before conclusion of the public hearings required by the Base Closure Act is a clear violation of the Act.

3. The failure of the Secretary of Defense to consider all naval installations equally was a violation of the Base Closure Act.

Section 2903(c)(3) of the Base Closure Act expressly provides that `the Secretary shall consider all military installations inside the United States equally without regard to whether the installation has been previously considered or proposed for closure or realignment by the Department.' The actions of the Secretary of the Navy with respect to the Philadelphia Naval Shipyard were clearly a violation of both the letter and spirit of this provision of the Base Closure Act.

The Complaint discloses that, in December 1990, the Secretary of the Navy established the BSC to conduct a base structure review and to determine the Navy's closure and realignment candidates. In accordance with the Base Closure Act's mandate, the BSC was charged with reviewing all installations inside the United States equally, `without regard to whether the installation was previously considered for closure or realignment.'

The BSC initially categorized all facilities according to function--e.g., naval air stations, Naval Shipyards--to determine which categories possessed significant excess capacity. The Navy then applied the eight selection criteria in two phases by assigning color codes to military bases in categories with excess capacity. Phase I of the BSC's analysis required a consideration of the first four military criteria. After Phase I was completed, the Navy excluded those bases which it determined `were distinguished by virtue of their operational value,' i.e. those that it gave an overall `green' rating under the first four military criteria.

Under the Navy's rating system, a `green' rating received one point, a `yellow' rating received two points, and a `red' rating (favoring closure) received three points. The Navy's
color-coded/point approach resulted in the following total point allocation to each of the eight Naval Shipyards in the United States:

Shipyard:

Puget Sound

4

Norfolk

5

Philadelphia

6

Charleston

6

Mare Island

6

Pearl Harbour

6

Portsmouth

6

Long Beach

7

Thus, Puget Sound received a `green' rating for each of the first four military criteria and was therefore excluded from further consideration of closure.

In accordance with the BSC base closure criteria, the seven remaining Shipyards should have been evaluated under the remaining four non-military criteria set forth in Phase II. Using the BSC's own rating system, the Philadelphia Naval Shipyard should have been treated the same as Charleston, Mare Island, Pearl Harbor and Portsmouth and better than Long Beach. However, the Navy ignored its own rating system and blatantly disregarded the statutory mandate that all bases be considered `equally.' Thus, the Navy--for no apparent reason and without any supporting documentation or analysis--gave overall `green' ratings to three other shipyards: Mare Island, which just like the Philadelphia Naval Shipyard, received two `yellow' and two green ratings; Norfolk, which received three `green' and one `yellow' ratings; and Pearl Harbor, which received one `red' and three `green' ratings.

The BSC then arbitrarily, unilaterally and without reference to any one of the eight selection criteria, excluded all of the six nuclear-capable shipyards from any further review without providing any documentation or analysis to justify a drydock need for nuclear ships as compared with conventional carriers. This process left only Long Beach and Philadelphia for further review.

To circumvent the fact that Long Beach scored poorly in three of the four military criteria and overall had the worst rating of all eight Naval Shipyards, the BSC then excluded Long Beach from further consideration, contending that one of the drydocks at that shipyard could be used `to handle West Coast aircraft carriers (including CVN emergency work).' Navy Report, Tab C, p. 10. By this egregious process of elimination, the BSC was left with only one yard to consider for closure under the remaining four criteria, the Philadelphia Naval Shipyard. The BSC then performed a perfunctory application of the second four non-military criteria with respect to the Philadelphia Naval Shipyard to ensure its closure.

Accordingly, the Navy, through this procedural parody, made a mockery of both the letter and spirit of the Base Closure Act.

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4. The failure of the Navy to comply with the Department of Defense regulations with respect to the Navy's base closure actions requires invalidation of the resulting list of naval closures

An agency's failure to abide by its own regulations is alone grounds for invalidating agency action. See Boddie v. Department of Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987); Kelley v. Calio, 831 F.2d 190, 191-92 (`It is the duty of a reviewing court to ensure that an agency follows its own procedural rules.'); Wojciechowicz v. Department of Army, 763 F.2d 149, 153 (3d Cir. 1985). In this case, the failure of the Navy to abide by the requirements promulgated by the Department of Defense in furtherance of the Base Closure Act mandates invalidation of the base closure list compiled as a result of the Navy's failure.

On December 10, 1990, the DOD issued `policy guidance' and `record keeping' requirements to the Military Departments as follows:

`The recommendations in the studies must be based on the final base closure and realignment selection criteria established under that Section [2903 of the Act]; and

`The studies must consider all military installations inside the United States . . . on an equal footing . . .'

* * * * *

DOD components shall keep:

Descriptions of how base closure and realignment selections were made, and how they met the final selection criteria;

Data, information and analysis considered in making base closure and realignment selections; and

Documentation for each recommendation to the Secretary of Defense to close or realign a military installation under the Act.

The DOD subsequently issued `internal control' guidance to the Military Departments requiring implementation of an `internal control plan' which `at a minimum' was to include:

Uniform guidance defining data requirements and sources for each category of base,

Systems for verifying accuracy of data,

Documentation justifying any changes made to data submissions, and

Procedures to check the accuracy of the analysis made from the data provided. 6

6 Although not published in the Federal Register, these requirements were the equivalent of regulations for purposes of judicial review under the APA. See Lucas v. Hodges, 730 F.2d 1493, 1504 n. 20 (D.C. Cir. 1984), vacated on other grounds, 738 F.2d 1392 (1984) (Agencies are `bound by their own substantive and procedural rules and policies, whether or not they are published in the Federal Register, if they are intended as mandatory.').

The February 13, 1991 DOD Memorandum also provided the following procedures for evaluating closures and realignments: (a) if there was excess capacity and a base was recommended for closure or realignment, the Department's analysis must have considered all military bases within that category and any cross-categories; and (b) military bases could only be excluded from further review if they were militarily/geographically unique or mission essential such that no other base could substitute for them.

However, as found by the GAO in its May 16, 1991 Report, the Navy failed completely to meet any of these requirements in its procedures for base closures and realignments. See, supra, at 8-11. Thus, the GAO concluded in its Report that it `could not determine the rationale for [the BSC's] final decisions' and `could not comment on the Committee's closure and realignment recommendations based on the process.'

Accordingly, the BSC and the Navy violated the DOD regulations promulgated in furtherance of the Base Closure Act, thereby invalidating the BSC's recommendations of base closures.

D. Plaintiffs' rights under the due process clause of the fifth amendment have been violated by defendants' violations of the Base Closure Act

The Due Process Clause protects individuals' property interests from interference by the federal government. Property interests are created by state and federal statutory schemes and customs which create a `legitimate claim of entitlement' to a specific benefit. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). A claim of unconstitutional deprivation under the Fifth Amendments has three essential elements: 1) the claimant must be deprived of a protectable interest; 2) that deprivation must be due to some governmental action; and 3) the deprivation must be without due process. Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir. 1984), cert. denied, 471 U.S. 1131 (1985).

The plaintiff unions and their members clearly have a property interest in the continued operation of the Philadelphia Naval Shipyard unless and until it is determined pursuant to a nonarbitrary application of the criteria established under the Base Closure Act that the Shipyard should be closed. See, e.g., Hixon v. Durbin, 560 F. Supp. 654 (E.D. Pa. 1983) (property interest in having proposed, executory contracts reviewed in accordance with state law and approved if they meet the requirement of state law); Three Rivers Cablevision v. City of Pittsburgh, 502 F. Supp. 1118 (W.D. Pa. 1980) (property interest is the right of lowest responsible bidder in full compliance with the specification to be awarded the contract). For example, the Third Circuit in Winsett v. McGinnes, 617 F.2d 996, 1006-08 (3d Cir. 1980), cert. denied, 449 U.S. 1093 (1981) found that the plaintiff had a protected interest in the exercise of a government agency's discretion `within established parameters.' Similarly, in this matter the discretion of the Commission, the Secretary the Navy and the Secretary of Defense must all be exercised within the `established parameters' and procedural mandates established by the Base Closure Act.

Plaintiffs' right to a fair, open and procedurally correct application of the Base Closure Act is particularly evident in light of the history, Congressional intent and significant procedural safeguards of the Base Closure Act. Thus, the Base Closure Act was passed by Congress to address the criticisms levelled at the 1988 base closure act. Complaint 45. To this end, Section 2901(b) expressly states that the `purpose' of the Act was `to provide a fair process that will result in the timely closure and realignment of military installations.' (emphasis supplied). As demonstrated previously, the Act also contained numerous substantive and procedural safeguards to ensure that persons in the position of plaintiff unions and their members were not the victims of the arbitrary, parochial application of government power.

Having determined that plaintiffs have a protected property interest, the only further inquiry the Court must undertake is to determine what process is due. Mathews v. Eldridge, 424 U.S. 319, 334 (1975). In the instant matter it is clear that the procedures mandated by the Base Closure Act provided an appropriate and necessary degree of protection of plaintiffs' property interest. Thus, the blatant violation of the procedures mandated by the Base Closure Act are a violation of the Fifth Amendment Due Process rights of plaintiff unions and their members.

IV. CONCLUSION

For the reasons stated in this Memorandum and the Complaint submitted herewith, plaintiffs respectfully request declaratory relief to prevent irreparable harm to them and the general public.

Bruce W. Kauffman; David H. Pittinsky; Camille J. Wolf; Patrick T. Davish; John V. O'Hara; Mark A. Nation; Martin Farrell; Dilworth, Paxson, Kalish & Kauffman; and Sen. Arlen Specter; Attorneys for Plaintiffs.

Dated: July 8, 1991.

Mr. SPECTER. I thank the Chair, I yield the floor, and suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

END