The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This case is before the Court on the Plaintiff's motion for a temporary restraining order [d/e 77] and motion for a preliminary injunction [d/e 78]. Also pending are the Defendants' motion to dismiss [d/e 60] and the Plaintiff's motion for summary judgment [d/e 63].
This case concerns the 2005 Defense Base Closure and Realignment Commission's Report to the President and the Plaintiff's challenge to implementation of the recommendation that Capital Airport Air Guard Station be realigned and that the federally-owned F-16 fighter aircraft currently assigned to the Illinois Air National Guard's 183rd Fighter Wing at Capital Airport Air Guard Station be distributed to other locations. The Plaintiff is the Governor of Illinois. The Defendants include the Secretary of Defense of the United States and the Chairman and Members of the Defense Base Closure and Realignment Commission.
The parties state that roughly half of the planes at issue are scheduled to be moved by no later than June 30, 2008, with the others to be moved no later than September 30, 2008. Moreover, counsel for the Defendants has informed counsel for the Governor that at least one plane will be moved on June 10, 2008. Because of this timetable, the Governor has moved for injunctive relief and the parties have requested expeditious treatment of the motions before the Court.
The Governor relies primarily on two statutes. Section 104(c), Title 32, of the United States Code provides:
To secure a force the units of which when combined will form complete higher tactical units, the President may designate the units of the National Guard, by branch of the Army or organization of the Air Force, to be maintained in each State. . . . . However, no change in the branch, organization, or allotment of a unit located entirely within a State may be made without the approval of its governor.
Another statute provides, in pertinent part, that "[a] unit of . . . the Air National Guard of the United States may not be relocated or withdrawn under this chapter without the consent of the governor of the State." 10 U.S.C. § 18238. The Governor contends the decision to move some aircraft assigned to the 183rd Fighter Wing of the Air National Guard from a base in Illinois to one in Indiana violates these statutes.
Congress enacted the Defense Base Closure and Realignment Commission Act of 1990, as amended, and provided that it shall be the exclusive authority of the Secretary of Defense to close or realign military bases during the period covered by the Act. See 10 U.S.C. § 2687. The Governor alleges, moreover, that while Sections 2905(c) and 2905(e)(6) of the Defense Base Closure and Realignment Commission Act expressly supercede such other enactments as the National Environmental Policy Act of 1969 and the National Defense Policy Authorization Act of 1973, nothing in the Act purports to abrogate either section 104(c) or section 18238.
The Secretary of Defense, the principal Defendant*fn1 in this case, asserts that actions implementing a report of the Defense Base Closure and Realignment Commission do not require gubernatorial approval.
This action has previously been dismissed on the grounds that Plaintiff lacks standing to seek the relief sought and the Court lacked jurisdiction over the subject matter. The Seventh Circuit reversed the judgment in both instances, see Blagojevich v. Rumsfeld, 202 Fed. Appx. 924 (7th Cir. 2006); Blagojevich v. Gates, 519 F.3d 370 (7th Cir. 2008), and most recently remanded the case for a determination on the merits.