SUPREME COURT OF THE UNITED STATES

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No. 93-289

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JOHN H. DALTON, SECRETARY OF THE NAVY, et al., PETITIONERS v. ARLEN SPECTER et al.

on writ of certiorari to the united states court of appeals for the third circuit

[May 23, 1994]

Justice Blackmun, concurring in part and concurring in the judgment.

I did not join the majority opinion in Franklin v. Massachusetts, 505 U. S. ___ (1992), and would not extend that unfortunate holding to the facts of this case. I nevertheless agree that the Defense Base Closure and Realignment Act of 1990 "preclud[es] judicial review of a base closing decision," post, at 7, and accordingly join Justice Souter's opinion.

I write separately to underscore what I understand to be the limited reach of today's decision. Each of the majority and concurring opinions concludes that the President acts within his unreviewable discretion in accepting or rejecting a recommended base closing list, and that an aggrieved party may not enjoin closure of a duly selected base as a result of alleged error in the decision making process. This conclusion, however, does not foreclose judicial review of a claim, for example, that the President added a base to the Commission's list in contravention of his statutory authority. Nor does either opinion suggest that judicial review would be unavailable for a timely claim seeking direct relief from a procedural violation, such as a suit claiming that a scheduled meeting of the Commission should be public, see §2903(d), note following 10 U.S.C. § 2687 (1988 ed.,

Supp. IV), or that the Secretary of Defense should publish the proposed selection criteria and provide an opportunity for public comment, §§2903(b) and (c). Such a suit could be timely brought and adjudicated without interfering with Congress' intent to preclude judicial "cherry picking" or frustrating the statute's expedited decision making schedule. See post, at 4. I also do not understand the majority's Franklin analysis to foreclose such a suit, since a decision to close the Commission's hearing, for example, would "directly affect" the rights of interested parties independent of any ultimate presidential review. See ante, at 8; cf. ITT World Communications, Inc. v. FCC, 466 U.S. 463 (1984).

With the understanding that neither a challenge to ultra vires exercise of the President's statutory authority nor a timely procedural challenge is precluded, I join Justice Souter's concurrence and Part II of the opinion of the Court.