SUPREME COURT OF THE UNITED STATES

No. 93-289

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.