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Blagojevich v. Gates

June 13, 2008

ROD BLAGOJEVICH, GOVERNOR OF THE STATE OF ILLINOIS, PLAINTIFF,
v.
ROBERT M. GATES, SECRETARY OF DEFENSE OF THE UNITED STATES; ANTHONY J. PRINCIPI, CHAIRMAN OF THE DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION; JAMES H. BILBRAY; PHILLIP E. COYLE; HAROLD W. GEHMAN, JR.; JAMES V. HANSEN; JAMES T. HILL; LLOYD W. NEWTON; SAMUEL K. SKINNER; AND SUE ELLEN TURNER, MEMBERS OF THE DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

The Governor's motion for summary judgment is Denied.

The Secretary of Defense's and the BRAC Commission's motion to dismiss is Allowed.

I. BACKGROUND

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.

On May 13, 2005, in a report to the Commission containing recommendations to realign or close military installations pursuant to the Base Closure and Realignment Commission process, the Secretary of Defense made the following recommendation regarding Capital Airport Air Guard Station and the 183rd Fighter Wing:

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). Retire the 122d Fighter Wing's F-16s (15 aircraft).

The wing's expeditionary combat support (ECS) elements, the Illinois ANG State Headquarters, and the 217th Engineering Installation Squadron remain in place. Realign Hulman Regional Airport Air Guard Station, IN. The 181st Fighter Wing's F-16s are distributed to the 122d Fighter Wing, Fort Wayne International Airport Air Guard Station, IN (nine aircraft), and retirement (six aircraft). The 181st Fighter Wing's ECS elements remain in place. Realign Dane County Regional Air Guard Station/Truax Field, WI, Joe Foss Field Air Guard Station, SD, Des Moines Air Guard Station, IA, Fort Wayne Air Guard Station, IN, and Lackland Air Force Base, TX, by relocating base-level F-110 intermediate maintenance to Capital, establishing a Centralized Intermediate Repair Facility (CIRF) at Capital for F-110 engines. 2005 Defense Base Closure and Realignment Commission Report to the President, Vol. I at 128, available at http://www.brac.gov/finalreport.asp.*fn1

The Commission struck the Secretary's recommendation and replaced it (in relevant part) with the following:

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 and the 15 F-16 aircraft assigned to the 122d Fighter Wing, Fort Wayne International Airport Air Guard Station, IN, to meet the Primary Aircraft Authorizations (PAA) requirements established by the Base Closure and Realignment recommendations of the Secretary of Defense, as amended by the Defense Base Closure and Realignment Commission. Establish 18 PAA F-16 aircraft at 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. The distribution of aircraft currently assigned to the 183d Fighter Wing is based upon a resource-constrained determination of the Department of Defense that the aircraft concerned will better support national security requirements in other locations and is not conditioned upon the agreement of the state. . . .

Realign Dane County Regional Air Guard Station/Truax Field, WI; Joe Foss Field Air Guard Station, SD; Des Moines Air Guard Station, IA; Fort Wayne Air Guard Station, IN; and Lackland Air Force Base, TX; 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.

Id. at 129-30.

In arguing that the planes cannot be moved without his consent, the Governor relies primarily on two statutes. The first 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 ...


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