NYGAARD, Circuit Judge.
Pennsylvania Governor Edward Rendell and other various elected officials brought an action in the District Court testing the legality of recommendations made by Secretary of Defense Donald Rumsfeld (hereinafter, Secretary) to deactivate the 111th Fighter Wing of the Pennsylvania National Guard. The District Court ruled that the Secretary's recommendations were invalid and the Secretary has appealed.
The District Court addressed two issues on motions for summary judgment: first, whether the Secretary of Defense can legally recommend deactivating the 111th Fighter Wing without the prior consent of the Governor of Pennsylvania; and, second, whether the portion of the Department of Defense report that recommends deactivation of the 111th Fighter Wing is null and void because Governor Rendell did not consent to the deactivation. The District Judge concluded that the Secretary's recommendation violated 32 U.S.C. § 104(c), which reads:
The District Court based its conclusion on the premise that the Secretary's recommendation was equivalent to a change and, hence, violated the italicized portion of the provision. On appeal the Secretary argues that the District Court's order should be vacated as moot; or in the alternative, that if not moot, should be reversed as nonjusticiable.
We need not address the issue of justiciability because we conclude that the case is now moot. Hence we will vacate the District Court's February 7, 2005 Order, and remand the cause to the District Court with instructions to dismiss the case as moot. See United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
The facts germane to our review are neither complex nor extensive. They begin in 1990 when Congress enacted the Defense Base Closure and Realignment Act. (DBCRA) Its purpose was to "provide a fair process that will result in the timely
The DBCRA required the Commission to send its conclusions and recommendations to the President, who was then obligated to issue his own report "containing his approval or disapproval of the Commission's recommendations." DBCRA § 2914(e)(1). The statute "does not at all limit the President's discretion in approving or disapproving the Commission's recommendations." Dalton v. Specter, 511 U.S. 462, 476, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994). Nonetheless, the President could not select from among the Commission's recommendations piecemeal, but was required either to accept or reject the Commission's recommendations in their entirety. Id. at 470, 114 S.Ct. 1719, DBCRA § 2903(e). The President's report (and list of recommended closures) was then to be sent to Congress with his certification of approval. The DBCRA gave Congress forty-five days in which to disapprove and reject the President's report, before it became final. It is only when this process was complete and after the President's report became final that the Secretary of Defense was empowered to close any base, to deactivate any Wing or Unit, or to realign or combine any Wings or Units.
The process outlined above was followed precisely. As required by the DBCRA, Secretary Rumsfeld sent his recommendations to the Commission. The recommendation at issue in this case reads as follows:
On the same day that the District Court entered its order, the Commission met to consider the Secretary's recommendations. The Commission was unanimous in its vote to strike the following language from the Secretary's report: "Deactivate the 111th Fighter Wing (Air National Guard) and relocate assigned A-10 aircraft to [other units]." Commission Transcript at 135-137. The Commission's final report to the President incorporated these deletions. It also "encourage[d] the DoD to consider identifying A-10 aircraft to form an A-10 Wing or detachment using the 111th . . ." Commission Report at 96. The report contained the following concerning the 111th's future:
Commission Report at 96-97.
The Commission then sent its Report to the President. He approved it and sent the Report to Congress with a letter that certified his approval of "all the recommendations contained in the Commission's report." The House of Representatives rejected a disapproval resolution by a vote of 324 to 85. The Senate never voted. Forty five days passed and the Commission's recommendations became law.
At this point, and only at this point, the Secretary became authorized to implement the Commission's recommendations, the President's Report, and the final Act of Congress. Congressional authority for the Commission expired on April 15, 2006, and the Commission ceased to exist.
As noted, Governor Rendell, Senators Specter and Santorum filed suit against Secretary Rumsfeld contending that 32 U.S.C. § 1049(c) forbade any "change in the branch, organization or allotment of a [National Guard] unit located entirely within a State .. without the approval of that State's governor." They sought a declaration that "Secretary Rumsfeld may not, without first obtaining Governor Rendell's approval, deactivate the 111th Fighter Wing." The District Court's order granting summary judgment for plaintiffs declared that;
We have an independent obligation at the threshold to examine whether we have appellate jurisdiction. Lorillard Tobacco Co. v. Bisan Food Corp. 377 F.3d 313, 318 (3d Cir.2004) (citing Gov't of V.I. v. Hodge, 359 F.3d 312, 317 (3d Cir.2004)). Our mootness analysis "traditionally begins with `the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.'" Intn'l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.1987) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). The existence of a case or controversy, in turn, requires "`(1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.'" Id. at 915 (quoting Dow Chem. Co. v. EPA, 605 F.2d 673, 678 (3d Cir.1979)). "The central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief." In re Surrick, 338 F.3d 224, 230 (3d Cir.2003).
Moreover, it does not matter when the case becomes moot. The requirement that a case or controversy be "actual [and]
The only issue raised by the Governor's complaint and addressed by the District Court's opinion and order was the legality of the Secretary's recommendation to deactivate the 111th Fighter Wing. "This action arises out of the Department of Defense's . . attempt . . . to deactivate the 111th Fighter wing . . ." App. at 75. The District Court's order declares that "[t]he portion of the [Secretary's] report that recommends deactivation . . . is null and void." App at 54. However, neither the Secretary's recommendation nor the District Court's declaration have any vitality, nor would they "serve [any] purpose today." Khodara 237 F.3d at 194. The Commission rejected the Secretary's recommendation. Indeed in its Report it stated that "[i]f the Commonwealth of Pennsylvania decides to change the organization, composition and location of the 111th Fighter Wing . . ., all personnel allotted to the 111th Fighter Wing . . . will remain in place and assume a mission relevant to the security interests of [Pennsylvania]." Commission Report at 96-97.
We conclude that there is simply no controversy remaining here. Secretary Rumsfeld did not change anything — nor was he empowered to do so. The recommendation he made to the DBCRA to deactivate the 111th Fighter Wing was not a change; and not followed by the Commission or the President, or was never considered by Congress. The Commission's Recommendations, the President's Report, and Congress' acquiescence have fully nullified Secretary Rumsfeld's recommendation, and rendered the District Court's declaration wholly unnecessary.
Moreover, the Governor's challenge does not fall within any of the recognized exceptions to the mootness doctrine. Under the "capable of repetition" exception, for example, a court may exercise its jurisdiction and consider the merits of a case that would otherwise be deemed moot when "(1) the challenged action is, in its duration, too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); see also In re Price, 370 F.3d 362, 381 (3d Cir.2004) (Sloviter, J., dissenting). The exception from the mootness doctrine for cases that are technically moot but "capable of repetition, yet evading review" is narrow and available "only in exceptional situations." City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675, (1983); Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).
The Governor argues that the life of the Secretary's recommendation was really too short to be litigated before it expired and thus, incapable of review. He may be right. However, the duration of the life of the Secretary's recommendation is not significant because there is no reasonable likelihood that the alleged harm will occur again to the same complaining parties. See Belitskus v. Pizzingrilli, 343 F.3d 632, 648 (3d Cir.2003). The recently completed process under the DBCRA was the final
Further, we have clearly held that a party can rarely, if ever, be injured by a proposed base closing before a decision is made to close that base. Any actions of the Secretary of Defense and the Commission before the President's decision are merely preliminary in nature. Specter v. Garrett, 971 F.2d 936, 946 (3d Cir.1992) vacated on other grounds 506 U.S. 969, 113 S.Ct. 455, 121 L.Ed.2d 364 (1992). Nothing has changed to alter the basic tenets of this holding and it is controlling in this appeal. For the alleged harm to occur again Congress would have to pass another law calling for a new round of base closures; the new law would have to give the Secretary a recommending role similar to the one at issue here; and the new Secretary would again have to recommend deactivating the 111th Fighter Wing. It would be speculation upon speculation were one to attempt a prediction whether a future Congress may re-authorize another new Commission; whether a new Secretary of Defense may recommend that the 111th Fighter Wing of the Pennsylvania National Guard at Willow Grove be deactivated; or what a new Base Closure Commission would do about it; and whether the next President would thereafter approve deactivation. There is simply no likelihood at all that this, or a future Governor of Pennsylvania "will be subject to the same action again." Belitskus, 343 F.3d at 648.
Nonetheless, a District Court's judgment is vacated "only where mootness has occurred through happenstance — circumstances not attributable to the parties." Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); New Jersey Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 26-27 (3d Cir.1985). This is known as the voluntary-cessation doctrine and is another exception to mootness. "Mere voluntary cessation of allegedly illegal conduct does not moot a case." United States v. Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968).
The reasons for this are patent and related to the "capable of repetition yet evading review" exception. That is to say if we were to hold such a case moot "the courts would be compelled to leave the defendant free to return to his old ways." Id. Consequently, if the defendant ceases the harm, the case retains vitality unless, "subsequent events ma[k]e it absolutely
The purpose of this exception is to prevent defendants from "forever . . . avoid[ing] judicial review simply by ceasing the challenged practice, only to resume it after the case [is] dismissed." Northeastern FL Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 676, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (O'Connor, J., dissenting).
Here the only defendant is Secretary Rumsfeld, and he has not voluntarily ceased anything. As noted, he made a recommendation that was roundly rejected. The Commission, the President, and Congress — all non-parties — have defused the gravamen of the plaintiffs' complaint and effectively nullified the District Court's declaratory order. Here, the voluntary-cessation exception simply does not apply.
Because this case is moot, and no exceptions apply, we must decide upon the appropriate remedy. The Supreme Court's decision in United States v. Munsingwear supplies the general rule: "The established practice . . . in dealing with a civil case . . . which has become moot while [under review] is to reverse or vacate the judgment below and remand with a direction to dismiss." 340 U.S. at 39, 71 S.Ct. 104. The Munsingwear rule is an equitable one that is "commonly used to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences." Donovan ex rel. Donovan v. Punxsutawney Area School Bd., 336 F.3d 211, 217 (3d Cir.2003) (citing Munsingwear, 340 U.S. at 41, 71 S.Ct. 104).
Where as here, the case became moot through the "vagaries of circumstance[s]" not attributable to the defendant, Munsingwear controls, and the general rule of vacatur is specifically indicated. U.S. Bancorp Mortgage Co., v. Bonner Mall P'ship., 513 U.S. 18, 25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). Therefore, we conclude that this case meets the test for vacatur. Once again, we find our decision in Khodara instructive. In Khodara, the case became moot while on appeal because Congress repealed the challenged law. We reasoned that legislative repeal of a challenged law did not suggest either manipulation of the legal system, or an attempt to erase an unfavorable precedent. Khodara 237 F.3d at 194-195. Like the Congressional repeal in Khodara, the Commission here was fulfilling its statutory role — not attempting to manipulate the system — and there is nothing on this record to indicate that Congress was aware of the District Court's order. On balance, we conclude that it is most equitable to "wipe the slate clean," and eliminate the possibility of any adverse legal consequences. See Munsingwear, 340 U.S. at 40, 71 S.Ct. 104 (stating vacatur "clears the path . . . and eliminates a judgment, review of which was prevented through happenstance.").
In summary, because this case is moot, we will VACATE the District Court's February 7, 2005 order and REMAND the cause to the District Court with instructions to dismiss the case as moot.
SLOVITER, Circuit Judge, Dissenting.
If the issue before us were a dispute between individuals, or between companies, or between one or more individual and one or more company, I would join Judge Nygaard's fine opinion for the majority without hesitation. But the issue
History of the National Guard
The differences between the states and the federal government, generally viewed as between the Federalists and the Anti-Federalists, in the days before and after the ratification of the Constitution that pervaded many of its provisions extended as well to the manner in which the security of the new nation should be ensured. Historians note that the Articles of Confederation required the States to "always keep up a well regulated and disciplined militia[.]"
The history of the National Guard is long and complex.
As noted in the Perpich opinion, the 1916 statute provided that the Army of the United States was to include not only "the Regular Army" but also the National Guard while in the service of the United States. Perpich, 496 U.S. at 343-44, 110 S.Ct. 2418. The Court also noted that other issues were remedied by the 1933 amendments that created as "two overlapping but distinct organizations" the National Guard of the various states and the National Guard of the United States. Id. at 345, 110 S.Ct. 2418 (internal quotation marks omitted). What is now section 32 U.S.C. § 104(c) is the combined product of the National Defense Act of 1916 and the amendments enacted in 1933. Since the 1933 amendments there has been dual enlistment: any person enlisting in a State National Guard unit has simultaneously enlisted in the National Guard of the United States.
I leap forward because the history of the National Guard is of relevance to us only to the extent that it impacts on the majority's decision not to consider the merits of the position of Governor Rendell that his statutory right to be consulted and give consent to the closure of the National Guard base (or unit) has been ignored.
Pursuant to the BRAC Act, the Secretary of Defense, after considering factors set forth in the statute,
"After receiving the recommendations from the Secretary pursuant to subsection (c) for any year, the Commission shall conduct public hearings on the recommendations." Pub.L. No. 101-510, 104 Stat. at 1811. The BRAC Commission must thereafter transmit its report, "containing its findings and conclusions[ ] based on a review and analysis of the Secretary's recommendations" to the President. Pub.L. No. 107-107, 115 Stat. at 1346. The President is then required to prepare a report containing his approval or disapproval of the Commission's recommendations. Id. at 1347. If the President disapproves the Commission's recommendations, the Commission may prepare a revised list of recommendations and transmit those to the President. Id. If the President disapproves the revised recommendations, the BRAC process for 2005 is terminated. Id. If the President approves either the original or revised recommendations, he must send the approved list and a certification of approval to Congress. Id. If Congress does not enact a resolution disapproving the approved recommendations within 45 days after receiving the President's certification of approval, the Secretary must carry out all of the recommendations. Pub.L. No. 101-510, 104 Stat. at 1812.
The Present Action
The action before us was filed by Edward G. Rendell, Governor of the Commonwealth of Pennsylvania, and Pennsylvania's two senators, Arlen Specter, and Rick Santorum, challenging the legality of the recommendation made by the then Secretary of Defense Rumsfeld to the BRAC Commission (the "BRAC DoD Report"). The essence of the lawsuit is described in the excellent detailed opinion of District Judge John Padova of the Eastern District of Pennsylvania. Because Judge Padova's opinion is not reported in the West Reporter system and is available only on online services, I quote from it in more detail than would be usual. Judge Padova explained:
2005 WL 2050295, at *1-2 (E.D.Pa. Aug.26, 2005) (footnote omitted) (internal citations omitted).
The District Court considered and rejected the arguments by the Secretary in support of dismissal of the complaint. In response to the Secretary's argument that Governor Rendell did not have standing because he had not suffered an imminent injury that is concrete, the District Court stated:
Id. at *9 (internal citations omitted).
In response to the Secretary's assertion that the claims asserted in the complaint are not ripe, the District Court analyzed the three factors relevant to a ripeness determination: the adversity of the parties' interest, the conclusiveness of the judgment, and the utility of the judgment. Id. at *10. As to adversity, the Court stated that "Governor Rendell suffered an injury in fact with respect to the derogation of his statutory power to consent to or to disapprove changes to the branch, organization or allotment of a unit of the National Guard located wholly within the Commonwealth," id., and found that the adversity prong is satisfied. With respect to the conclusiveness inquiry, the District Court stated:
Finally, the Court turned to the utility inquiry and concluded:
Id. at * 11.
Having rejected the Secretary's motion to dismiss on the grounds referred to above, the District Court then considered the application of Dalton v. Specter, 511 U.S. 462, 466, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994), where the Supreme Court rejected a challenge to the President's decision, pursuant to the 1990 BRAC Act, to close the Philadelphia Naval Shipyard. The District Court held that Dalton did not bar Governor Rendell's action because, unlike the complaint in Dalton, the complaint by Governor Rendell was not brought pursuant to the Administrative Procedure Act. Rendell v. Rumsfeld, 2005 WL 2050295, at * 11. The District Court then turned to the concurring opinion in Dalton written by Justice Souter which essentially concluded that "the text, structure, and purpose of the Act" manifest that the Act forecloses judicial review. Id. at *13; Dalton, 511 U.S. at 479, 114 S.Ct. 1719. The District Court differentiated the issue in Dalton from that before it, stating:
Rendell v. Rumsfeld, 2005 WL 2050295, at * 14. After considering the merits of the complaint on the opposing motions for summary judgment, the District Court granted the Commonwealth's motion for declaratory judgment and held as follows:
Id. at *21-22.
There are many issues decided by the District Court that merit appellate review. Unfortunately, the majority opinion does not discuss them. Instead, it has chosen to grant the Secretary's motion to dismiss this appeal on the basis of mootness. The majority holds that because the Commission voted to strike from the Secretary's recommendation the deactivation of the 111th Fighter Wing (Air National Guard) and the relocation of the assigned aircraft elsewhere, which recommendation was approved by the President without rejection by Congress, thereby becoming law, the case is now moot. The majority states that in light of those events, the District Court's declaration that the "portion of the [Secretary's] report that recommends deactivation of the 111th Fighter Wing of the Pennsylvania Air National Guard is null and void" is "wholly unnecessary." Maj. Op. at 241.
The majority recognizes that one of the principal exceptions to the mootness doctrine is the one covering the situation when the issue is "capable of repetition, yet evading review." The majority holds that exception is inapplicable here because
The Issue on Appeal
In response to the Secretary's argument that the matter before us is moot, Governor Rendell argues that by including in the recommendation to the BRAC Commission the removal of all of the 111th Fighter Wing's aircraft, a recommendation that was untouched when the BRAC Commission forwarded the recommendation to the President, the result would be the constructive deactivation of the 111th Fighter Wing. Therefore, argues the Governor, the matter is not moot because if the 111th aircraft were taken without replacing the allotted planes, the unit would be made inactive and ineffective.
I, for one, have had some difficulty understanding the Governor's position on this appeal with respect to the aircraft. On one hand, the Governor appears to have disclaimed any challenge to the movement of the aircraft or to the actions of the Commission on this appeal. When questioned about that at oral argument the Governor's counsel stated that the effect of the removal of the aircraft would be that the "mission" of the 111th Fighter Wing would be taken away. Tr. at 22-23. Counsel later stated "[w]e're challenging not the taking away of these particular planes but the taking away of planes for all time. We're taking away their ability to fly, if you can understand it that way[.]" Tr. at 24. Counsel for the Governor stated that the final documents signed by the President contained, inter alia, the recommendation to "[d]istribute the 15 A-10 aircraft assigned to [the] 111th Fighter Wing. And it goes on to say that they [would] be distributed to various other locations, Boise Air Terminal Air Guard Station, Martin State Airport Air Guard Station, and so on." Tr. at 24-25. I find it difficult to reconcile that argument with the Governor's failure to raise the distribution of the aircraft in the District Court.
However, I look at the issue in this case as a broader one than that identified by the majority. I understand Governor Rendell to have challenged the Secretary's action because the Secretary failed to follow the requirement of 32 U.S.C. § 104(c) to seek and await the Governor's approval to any "change in the branch, organization, or allotment of a [National Guard] unit
I dissent from the majority's decision because it evades deciding whether § 104(c) retains any effect. The District Court held that the Governor's right to prior approval or disapproval has been "completely nullified by the Secretary's recommendation." Rendell v. Rumsfeld, 2005 WL 2050295, at *9. The Secretary argues that "[a]dding a gubernatorial consent requirement (drawn from § 104(c)) would interfere with the Base Closure Act[.]" Govt's Br. at 29-30. The Governor responds that the Base Closure Act expressly superseded some federal statutes relating to base closings, but contains no such provision with respect to the gubernatorial consent statutes.
I have reached no decision with respect to the conflicting arguments but it is a significant issue, one between the rights of the states and the federal government harkening back to the very foundation of our government. Concededly, the Governor's obligation to provide for the civil defense of the people and property of Pennsylvania in this era of threats to the homeland may require calling on the National Guard. I dissent from the majority's choice not to consider the merits of this issue. To paraphrase Rabbi Hillel, "if not now, when?"