The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Motion to Dismiss (d/e 60) filed by Defendants U.S. Secretary of Defense Robert M. Gates (Secretary) and the members of the United States Base Closure and Realignment Commission (Commission), and the Motion for Summary Judgment (d/e 63) filed by the Plaintiff Illinois Governor Rod Blagojevich (Governor). The Governor asks the Court to permanently enjoin the Secretary from implementing the final recommendation of the Commission to relocate fifteen F-16 fighter airplanes (Planes) currently assigned to the 183d Fighter Wing of the Illinois Air National Guard (183d), located in Springfield, Illinois, to a base in Fort Wayne, Indiana. The Commission voted to approve the relocation of the Planes and transmitted those recommendations to the President. The President transmitted the recommendations to Congress. Congress did not act to reject the recommendations. The Governor claims that the relocation of the Planes and related personnel may not occur without his consent, pursuant to 32 U.S.C. § 104(c) and 10 U.S.C. § 18238.
This Court initially dismissed the action because the Court determined that the Governor lacked standing to bring this action. Blagojevich v. Rumsfeld, 385 F.Supp.2d 768 (C.D.Ill., 2005). On appeal, the Court of Appeals determined that the Governor had standing to bring the action. Blagojevich v. Rumsfeld, 202 Fed.Appx. 924, 2006 WL 3147365 (Nonprecedential Disposition November 1, 2006). The Court of Appeals vacated this Court's dismissal and remanded the case for further proceedings regarding all issues other than standing. Id.
The parties have now briefed this matter fully. For the reasons set forth below, the Secretary's Motion to Dismiss is ALLOWED, and the Governor's Motion for Summary Judgment is DENIED. The Governor's action is barred by the sovereign immunity of the United States. This Court, therefore, lacks jurisdiction to order the Secretary to take the steps that would give the Governor the relief he seeks.
This case arises from the current round of military base closings and realignments under the Defense Base Closure and Realignment Act of 1990 (Act). 104 Stat. 1808, as amended, note following 10 U.S.C. § 2687. Pursuant to the Act, the Secretary submitted his recommendations for base closures and realignments to Congress and to the Commission. The Secretary recommended the following changes to the 183d: "Realign Capital Airport Air Guard Station, IL. Distribute the 183d Fighter Wing's F-16s to the 122d Fighter Wing, Fort Wayne International Airport Air Guard Station, IN, (15 aircraft) . . . Realign [parts of various other bases in Wisconsin, Iowa, Indiana, and Texas] . . . by relocating baselevel F-110 intermediate maintenance to Capital, establishing a Centralized Intermediate Repair Facility (CIRF) at Capital for F110 engines." 2005 Defense Base Closure and Realignment Commission Report to the President (2005 BRAC Commission Report), Vol. 1 at 128, available at http://www.brac.gov/finalreport.asp.
The Commission then held public hearings and voted on whether to accept or reject each of the Secretary's recommendations. The Commission modified the Secretary's recommendation for realignment of the 183d. The Commission recommended the following changes to the 183d:
Realign Capital Airport Air Guard Station, IL. Distribute the 15 F-16 aircraft assigned to the 183d Fighter Wing, Capital Airport Air Guard Station, IL . . . to the 122d Fighter Wing, Fort Wayne International Airport Air Guard Station, IN, . . . . . . . .
The Illinois ANG State Headquarters and the 217th Engineering Installation Squadron remain in place at Capital Airport Air Guard Station, IL.
If the State of Illinois decides to change the organization, composition and location of the 183d Fighter Wing to integrate the unit into the Future Total Force, all personnel allotted to the 183d Fighter Wing, including the wing Expeditionary Combat Support (ECS) elements, will remain in place and assume a mission relevant to the security interests of the State of Illinois and consistent with the integration of the unit into the Future Total Force, including but not limited to the Centralized Intermediate Repair Facility (CIRF) at Capital for F110 engines, air mobility, C4ISR, Information Operations, engineering, flight training or unmanned aerial vehicles. Where appropriate, unit personnel will be retrained in skills relevant to the emerging mission.
This recommendation does not effect a change to the authorized end-strength of the Illinois Air National Guard. . . . . . .
Realign [parts of various other bases in Wisconsin, Iowa, Indiana, and Texas] . . . by relocating base-level F-110 intermediate maintenance to Capital Air Guard Station, IL, establishing a Centralized Intermediate Repair Facility (CIRF) at Capital for F110 engines.
The Final Report was submitted to the President on or before September 8, 2005. The President must approve or disapprove, in their entirety, all of the Commission's recommendations. Act, § 2914(e)(1). The President approved the Report on September 15, 2005, and submitted the recommendations along with his certification of approval to Congress. Congress was authorized to enact a joint resolution of disapproval within forty-five days after receiving the President's certification. Id., § 2904. Because no such resolution was passed, the Act states that ...