
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2427                              WILLIAM S. COHEN, ET AL.,                               Plaintiffs, Appellants,                                          v.                   DONALD RICE, SECRETARY OF THE AIR FORCE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Severin  M.  Beliveau,  with  whom  Ann  R.  Robinson,  Joseph  G.            _____________________               _________________   __________        Donahue,  and Preti, Flaherty, Beliveau  & Pachios, were  on brief for        _______       ____________________________________        appellants.            Jacob  M. Lewis,  with  whom  Stuart  M. Gerson,  Acting  Attorney            _______________               _________________        General, Richard S.  Cohen, United States Attorney, Douglas N. Letter,                 _________________                          _________________        United States Attorney and Scott  R. McIntosh, United States Attorney,                                   __________________        were on brief for appellee.                                 ____________________                                     May 3, 1993                                 ____________________                      STAHL, Circuit Judge.  This is  an action to enjoin                             _____________            the Department  of Defense from carrying  out the President's            decision  to  close  Loring  Air  Force  Base  ("Loring")  in            Limestone,  Maine.   Plaintiffs,1  seeking  relief under  the            Administrative Procedure Act ("APA"), 5 U.S.C.   701 et seq.,                                                                 __ ____            allege that defendants Secretary of Defense, Secretary of the            Air Force, and Base  Closure and Realignment Commission ("the            Commission") violated procedural and substantive requirements            of the Defense Base Closure and Realignment Act of 1990 ("the            1990 Act").  Pub. L. No. 101-510,    2901-11, 104 Stat. 1808-            19 (codified at 10 U.S.C.   2687).  In dismissing many of the            plaintiffs' claims in May 1992, the district court ruled that            the  1990  Act  precludes   judicial  review  of  substantive            challenges to base closure decisions.  See Cohen v. Rice, 800                                                   ___ _____    ____            F.  Supp. 999  (D. Me. 1992)  ("Cohen I").   In  September of                                            _______            1992,  the  district  court  granted  defendants' motion  for            summary  judgment on the remaining claims on the basis of the                                            ____________________            1.  Plaintiffs are:  United  States Senators William S. Cohen            and George J. Mitchell; Maine Governor John R. McKernan, Jr.;            United States  Representative Olympia J. Snowe;  the towns of            Limestone,  Ashland, Caswell, Fort  Fairfield, Mars Hill, New            Sweden  and Van Buren, and the cities of Caribou, and Presque            Isle,  all of which are municipalities of the State of Maine;            Aroostook  County, a  political subdivision  of the  State of            Maine; Save Loring  Committee, an organization  of individual            and corporate  citizens residing  in the plaintiff  towns and            cities, and  Committee Chairman Paul D.  Haines; and American            Federation  of  Government  Employees  ("AFGE")  Local  Union            Chapter  #2943, the  exclusive bargaining  representative for            approximately 492 Loring employees and Chapter President Alan            Mulherin.                                         -2-                                          2            Supreme   Court's   intervening  decision   in   Franklin  v.                                                             ________            Massachusetts,  112 S. Ct. 2767  (1992).  See  Cohen v. Rice,            _____________                             ___  _____    ____            800  F. Supp. 1006 (D.  Me. 1992) ("Cohen  II").  Plaintiffs'                                                _________            timely appeal focuses on  the district court's application of            Franklin  to this case.  After careful review of the decision            ________            below,  the  1990  Act,  and the  Court's  pronouncements  in            Franklin, we affirm the  judgment of the district court.   As            ________            this case is apparently  the first at the appellate  level to            mesh the 1990 Act  with the recent dictates of  Franklin,2 we                                                            ________            begin  with an overview of the 1990 Act and its predecessors,            and then focus on the specifics of the matter at hand.                                     The 1990 Act                                     The 1990 Act                                     ____________                      The 1990  Act is the latest attempt  by Congress to            regulate  the process  by which  domestic military  bases are            closed or  realigned.  Throughout  the 1960s  and 1970s,  the            Executive Branch attempted to reduce military expenditures by            closing  or  realigning military  bases.    See Defense  Base                                                        ___            Closure  and Realignment Commission, Report to the President,                                                 _______________________            ("Commission Report")  at 1-1 (1991).   Often, however, these                                            ____________________            2.  One other appellate court has addressed the issue we face            today,  deciding, at  least partially,  in favor  of judicial            review.    See Specter  v. Garrett,  971  F.2d 936  (3rd Cir.                       ___ _______     _______            1992).  The  district court,  in fact, relied  on Specter  in                                                              _______            ruling  on  defendants'  motion  to dismiss.    Subsequently,            however,  following  the  issuance  of  Franklin,  the  Court                                                    ________            granted the government's petition for certiorari  in Specter,                                                                 _______            vacated the  judgment therein, and  remanded the case  to the            Third  Circuit for reconsideration in light of Franklin.  See                                                           ________   ___            O'Keefe v. Specter, 113 S. Ct. 455 (1992).            _______    _______                                         -3-                                          3            attempts were opposed by members of  Congress, who feared the            economic impact on their  constituents, and who suspected the            influence   of  political   motivation  in   the  Executive's            decisions. Id.                       ___                      In  1977, Congress passed  legislation granting the            Secretary  of   Defense  the  power  to   unilaterally  close            particular  bases, but  only  after (1)  notifying the  Armed            Services   Committees   of   the   Senate    and   House   of            Representatives of the selected  bases; (2) submitting to the            committees  his  evaluation of  the  economic, environmental,            budgetary and strategic consequences of the closings; and (3)            deferring  action for  at least  60 days,  during which  time            Congress  could legislate  a halt  to the  closures.   See 10                                                                   ___            U.S.C.    2687(b) (Supp. IV 1980).  In addition, the proposed            closures had to comply with the requirements of  the National            Environmental Policy  Act of  1969 ("NEPA").  Id.  While  the                                                          ___            1977 legislation imposed few substantive restrictions on  the            Executive Branch's authority  to close bases,  the procedural            requirements--most notably  the mandate to comply with NEPA--            made  such action difficult.   See Commission  Report at 1-1;                                           ___ __________________            see also H.R. Conf.  Rep. No. 1071, 100th Cong.,  2d Sess. 23            ___ ____            (1988),  reprinted  in 1988  U.S.C.C.A.N. 3395,  3403 ("[t]he                     _________  __            conferees recognize that  [NEPA] has been used  in some cases            to delay and ultimately frustrate base closures . . . .").                                         -4-                                          4                      Congress  next  tackled the  base closure  issue in            1988 by  enacting  the Defense  Authorization Amendments  and            Base Closure and Realignment  Act ("the 1988 Act").   Pub. L.            No. 100-526,    201-209, 102 Stat. 2623, 2627-34 (1988).  The            1988 Act  replaced the Secretary of Defense's decision-making            power  with  that of  an  independent  commission, which  was            granted  the   power  to  recommend  bases   for  closure  or            realignment.   1988 Act     201, 203(b)(1)-(2),  102 Stat. at            2627-28.  The commission presented its recommendations to the            Secretary, who had  the power  to approve  or disapprove  the            entire group of recommendations.   Id.    201(1)-(2), 202(a),                                               ___            102 Stat. 2627.   If the Secretary  approved the commission's            recommendations, Congress  was given 45 days  to override the            Secretary by passing a joint resolution.  Id.    202(b), 208,                                                      ___            102 Stat. 2627, 2632-34.   Finally, in response to  the prior            difficulties, the 1988 Act explicitly exempted  the Secretary            and commission's base closure decisions from the requirements            of NEPA.  Id.   204(c)(1), 102 Stat. 2630.                      ___                      Although the newer processes of the 1988 Act led to            closure or realignment of 145 domestic military bases, it was            not  enacted as a permanent mechanism, but was instead a one-            time  exception to  the  procedures  set  forth in  the  1977            legislation.   See  Specter,  971 F.2d  at  939.   Thus,  the                           ___  _______            Defense Secretary's January 1990 base closure proposals  were            governed  by the  1977  rules.   Id.     Members of  Congress                                             ___                                         -5-                                          5            expressed concern over the "considerable period of time and .            .  .  numerous  opportunities  for  challenges   in  court[]"            presented  by  the  1977   procedures,  and  noted  that  the            Secretary's list of bases  for study "raised suspicions about            the integrity of  the base closure selection  process."  H.R.            Conf. Rep.  No.  923,  101st  Cong., 2nd  Sess.  705  (1990),            reprinted in  1990 U.S.C.C.A.N. 2931, 3257.            _________ __                      Congress, in enacting  the 1990  Act, attempted  to            incorporate  the  procedures of  the  1988  Act, without  the            obstacles of prior legislation.  See H.R. Rep. No. 665, 101st                                             ___            Cong., 2d  Sess. 342  (1990), reprinted in  1990 U.S.C.C.A.N.                                          _________ __            2931,  3068 ("a new base closure process will not be credible            unless  the 1988  base closure  process remains  inviolate").            The 1990  Act envisioned  three rounds  of base  closures, in            1991,  1993, and 1995, and provided  for the establishment of            an independent  Commission to  meet in  each of those  years.            1990 Act    2902(a), (e),  104 Stat.  1808 (1990).   The  Act            required the Secretary of Defense to provide Congress and the            Commission with a six-year force structure plan that assessed            national security  threats and the force  structure necessary            to meet such threats.   Id.   2903(a)(1)-(3), 104  Stat. 1810                                    ___            (1990).    The  Secretary  was  also  required  to  formulate            criteria  for  use  in   identifying  bases  for  closure  or            realignment.  The criteria had to be published in the Federal            Register  for public  notice  and comment,  and submitted  to                                         -6-                                          6            Congress which had the power to evaluate and disapprove them.            Id.   2903(b), 104 Stat. 1810-11.3            ___                                            ____________________            3.  On February 15, 1991, the Department of Defense published            eight  proposed final  criteria  governing  base closure  and            realignment.  56 Fed.  Reg. 6374.  The criteria  were subject            to  Congressional review  until  March 15,  1991, and  became            final on that date.  1990 Act   2903(b)(2).  The criteria are            reported as follows:                 In  selecting military installations for closure or                 realignment,  the  Department  of  Defense,  giving                 priority consideration to military value (the first                 four criteria below), will consider:                      Military Value                      Military Value                      ______________                      1.  The   current   and   future  mission                      requirements  and  impact on  operational                      readiness of the Department  of Defense's                      total force.                      2.  The  availability  and  condition  of                      land, facilities and associated air space                      at  both  the   existing  and   potential                      receiving locations.                      3.    The    ability    to    accommodate                      contingency,   mobilization   and  future                      total  force  requirements  at  both  the                      existing    and    potential    receiving                      locations.                      4. The cost and manpower implications.                      Return on Investment                      Return on Investment                      ____________________                      5.  The extent  and  timing of  potential                      cost and savings, including the number of                      years,   beginning   with  the   date  of                      completion of the closure or realignment,                      for the savings to exceed the cost.                      Impacts                      Impacts                      _______                      6. The economic impact on communities.                      7. The ability  of both the  existing and                      potential      receiving     communities'                      infrastructure    to   support    forces,                      missions and personnel.                      8. The environmental impact.            56 Fed. Reg. 6374-02 (Feb. 15, 1991).                                         -7-                                          7                      For the 1991 cycle,  the Act required the Secretary            to recommend base closures and realignments to the Commission            by  April 15,  1991, based  on the  force structure  plan and            final criteria.   Id.   2903(c)(1), 104  Stat. 1811.  The Act                              ___            charges   the  Commission  with   reviewing  the  Secretary's            recommendations,  holding public  hearings,  and preparing  a            report  for the  President containing  its assessment  of the            Secretary's  proposals and  its own  recommendations.   Id.                                                                      ___            2903(d)(1)-(2)(A),  104  Stat.  1811.   The  Act  allows  the            Commission to  change any of  the Secretary's recommendations            if  they "deviate[]  substantially" from the  force structure            plan  and final  criteria.   Id.    2903(d)(2)(B), 104  Stat.                                         ___            1811-12.   However,  in  its  report  to the  President,  the            Commission must  explain any  departure from  the Secretary's            recommendations.   Id.     2903(d)(3), 104  Stat. 1812.   The                               ___            Secretary must make available  to the Comptroller General all            information used in making  the initial recommendations.  The            Comptroller   General   must   report  on   the   Secretary's            recommendations and selection process  to the Commission  and            Congress,  and  may,  to  the extent  requested,  assist  the            Commission.  Id.   2903(c)(4), (d)(5), 104 Stat. 1811-12.                         ___                      Once the Commission  completes its report, the  Act            requires that  it be  transmitted to  the President,  who may            approve or  disapprove the Commission's  recommendations, and            then must relate his decision to the Commission and Congress.                                         -8-                                          8            Id.     2903(e)(1)-(3), 104  Stat.  1812.   If  the President            ___            disapproves the Commission's recommendations, in whole  or in            part,  he returns  them to  the Commission,  which must  then            reconsider its  prior recommendations  and  submit a  revised            list to the President.  Id.   2903(e)(3), 104 Stat. 1812.  If                                    ___            the President does not approve the revision, and thereby does            not submit any recommendations  to Congress, the base closure            process for that year  is terminated.  Id.   2903(e)(5).  If,                                                   ___            however,    the    President   approves    the   Commission's            recommendations, or its revised version, Congress has 45 days            to  pass  a joint  resolution  disapproving the  Commission's            recommendations in  their entirety.   Id.    2908,  104 Stat.                                                  ___            1816-18.    If  a  disapproval  resolution  is  enacted,  the            Secretary may not close the bases approved for closure by the            President.  Id.   2904(b), 104 Stat. 1813.  If  Congress does                        ___            not pass such a  resolution, the Act calls for  the Secretary            to  close  or  realign  all  bases  so   recommended  by  the            Commission and approved by the President.  Id.   2904(a), 104                                                       ___            Stat. 1812-13.                                 The Loring Decision                                 The Loring Decision                                 ___________________                      In  April 1991,  the Secretary  issued his  list of            recommended domestic base closures  and realignments.  See 56                                                                   ___            Fed.  Reg. 15184  (April 15,  1991).   Among the  72 military            installations  on the list were  20 Air Force  bases.  Loring            was scheduled  for closure.  Id.  at 15252.  Pursuant  to the                                         ___                                         -9-                                          9            Act, the Commission then conducted its analysis and review of            the  Secretary's recommendations.   The  Commission conducted            public hearings, at which  it heard testimony from Department            of  Defense  officials,   legislators,  and  other   experts.            Commission Report  at 4-1,  (G-1)-(G-2).  Commissioners  also            visited many of the affected bases, including Loring.  Id. at                                                                   ___            4-1,  H-1.   The  Commission's  staff  reviewed the  military            services'  methodologies  and  data  used  to  develop  their            recommendations.   Id.   In addition, the  General Accounting                               ___            Office   ("GAO")  issued   a   report  on   the   Secretary's            recommendation and forwarded it to the Commission, while also            assisting   the  Commission   in  obtaining,   verifying  and            reviewing  data.    Id. at  (3-1)-(3-2).    In  the end,  the                                ___            Commission  recommended  that  one  of the  Air  Force  bases            targeted for  closure by the  Secretary remain open,  but the            Commission concurred  in  the recommendation  that Loring  be            closed.  Id. at (5-31)-(5-45).                     ___                      On July  10,  1991,  President  Bush  approved  the            recommendations of the Commission,  including the closure  of            Loring.  See Cohen I, 800 F. Supp. at 1002;  Cohen II, 800 F.                     ___ _______                         ________            Supp. at 1008.  On July 30, 1991, pursuant to section 2908 of            the 1990 Act, the House considered a resolution, proposed  by            plaintiff   Rep.  Snowe,   to  disapprove   the  Commission's            recommendations.    Id.    Three  Commissioners,  Air   Force                                ___            officials,  and members of the affected communities testified                                         -10-                                          10            at the  hearings.  137  Cong. Rec. H6006 (daily  ed. July 31,            1991).   During  the course  of debate,  Representative Snowe            urged the House to block Loring's closure, alleging a variety            of procedural  errors on the part of  the Commission.  Id. at                                                                   ___            H6012-H6020.   The  House rejected  the  proposed disapproval            resolution  by  a  vote of  364  to  60,  thus requiring  the            Secretary to proceed with the 1991 closures and realignments.            Id. at H6039.            ___                                  Prior Proceedings                                  Prior Proceedings                                  _________________                      Plaintiffs filed the instant suit in December 1991,            alleging in  Count I that the  Air Force failed to  adhere to            the force  structure plan  and "deviated substantially"  from            the published  base closure criteria; failed  to fairly apply            the  selection criteria; improperly  considered an unapproved            selection criterion; acted  "arbitrarily and capriciously" in            applying  the selection criteria to  Loring and a rival base;            and  failed to supply all relevant information to the GAO and            Congress.  Count II made many of the same allegations against            the Commission, and also alleged a failure to comply with the            1990 Act's public hearing requirement.                      In February  1992, the defendants moved  to dismiss            the  suit,  essentially  on  the  ground  that  the  1990 Act            implicitly precluded judicial review.   Cohen I, 800 F. Supp.                                                    _______            at  1005.    With respect  to  Count  I,  the district  court            dismissed  all claims  against the  Air Force  and Secretary,                                         -11-                                          11            except those containing allegations that the Secretary failed            to  transmit to the GAO,  Congress and the  Commission all of            the information used in preparing his recommendations, as the            1990 Act  requires.  Id.  The  court ruled that the remainder                                 ___            of  plaintiffs'  challenges  were  not  judicially reviewable            because they would require the court to "reevaluate the basis            for  the  Secretaries' decision  to  close  Loring.  .  .  ."            Relying on  Specter,  the court  held  that such  review  was                        _______            precluded by the Act,  which "decided to put these  questions            to rest and guaranty the integrity of the process not through            judicial  review, but through  review by two  bodies far more            suited to  the task:   the Commission and  the GAO."   Id. at                                                                   ___            1005  (quoting Specter, 971 F.2d at 951).  The district court                           _______            also dismissed most of the claims against the Commission made            in Count II, for essentially the same reasons.  Id.  at 1006.                                                            ___            Only the  charge that  the Commission  failed to hold  public            hearings, in violation of section 2903(d)(1) of the 1990 Act,            was left standing. Id.                               ___                       Subsequent  to Cohen  I,  the  Supreme  Court,  in                                      ________            Franklin,  expressed its interpretation  of reviewable agency            ________            action  under  the  APA.   The  district  court,  relying  on            Franklin, granted defendants' motion for  summary judgment on            ________            the  remaining aspects  of  the case.   See  Cohen II.   This                                                    ___  ________            appeal  followed.    Before  delving into  Franklin  and  its                                                       ________                                         -12-                                          12            applicability herein, we  briefly outline  the strictures  of            the APA.                           The Administrative Procedure Act                           The Administrative Procedure Act                           ________________________________                      The APA sets forth  the procedures by which federal            agencies are held accountable to the public and their actions            made subject to  judicial review.   Franklin, 112  S. Ct.  at                                                ________            2773.  Pursuant to the APA, a court may set  aside any agency            action  found  to  be  arbitrary,  capricious,  an  abuse  of            discretion, or  contrary  to applicable  legal or  procedural            requirement.   5 U.S.C.    706(2).  Such  review, however, is            only available "`to  the extent that . . .  statutes [do not]            preclude  judicial review'  and the  agency action  `is [not]            committed  to agency discretion by  law.'"  Cohen  II, 800 F.                                                        _________            Supp.  at  1009 (quoting  5  U.S.C.  701(a)).   Finally,  and            perhaps most importantly, the APA  authorizes judicial review            only  of "final  agency action  for which  there is  no other                      _____            adequate  remedy in  a  court."   5  U.S.C.    704  (emphasis            added).  At  the heart of the instant  dispute is whether the            actions complained of are  "final actions" within the meaning            of the APA.   In Franklin, the Court addressed  this critical                             ________            issue.  We turn now to the Court's opinion.                              Franklin v. Massachusetts                              Franklin v. Massachusetts                              _________________________                      Franklin    involved    a    challenge    to    the                      ________            reapportionment of the House of Representatives following the            1990 census.   Article  I,    2, cl.  3, of  the Constitution                                         -13-                                          13            provides that Representatives "shall be apportioned among the            several  States . . . according to their respective Numbers .            .  . ."    Section 2  of  the Fourteenth  Amendment  mandates            counting the "whole number  of persons in each state."   Such            counting  is  to  be   done  through  "actual   Enumeration,"            conducted every 10 years, "in such Manner as [Congress] shall            by Law direct."  U.S. Const., art I,   2, cl. 3.  Pursuant to            statutory authority, the Secretary of Commerce is directed to            conduct  the decennial census "in such form and content as he            may  determine." 13 U.S.C.   141(a).  The Secretary then must            provide the  President  with the  state-by-state  population,            necessary for reapportionment.  Id.    141(b).  The President                                            ___            then  sends Congress  a statement,  based on  the Secretary's            report, showing the population of  each state, and the number            of Representatives to which each state is entitled, according            to a  specified formula.   2  U.S.C. 2a(a).    Each state  is            entitled  to  the  number  of Representatives  shown  in  the            President's  statement  to  Congress.   Id.     2a(b).    See                                                    ___               ___            generally Franklin, 112 S.  Ct. at 2771 (outlining historical            _________ ________            bases of apportionment and census statutes).                      The  Commonwealth  of Massachusetts  challenged the            Secretary  of  Commerce's  inclusion  of  military  personnel            serving  overseas  in  state  population  counts  for  census            purposes.  The resulting tabulation shifted a  Representative            from Massachusetts to Washington.  Id.  Massachusetts claimed                                               ___                                         -14-                                          14            that the  allocation of overseas personnel  was arbitrary and            capricious under the APA.  A three-judge district court panel            agreed.   Commonwealth  v. Mosbacher,  785 F.  Supp. 230  (D.                      ____________     _________            Mass. 1992).   The Supreme Court  reversed, holding that  the            action  of  the  Secretary,   in  reporting  the   population            tabulations, was not "final," within the meaning of  the APA,            while  the actions of the  President were not  subject to APA            review  because the President  is not an  "agency" within the            APA.  Franklin, 112 S. Ct. at 2773-76.                  ________                      In   assessing   the  finality   of   the  Commerce            Secretary's actions,4  the Court first looked  to Abbott Lab.                                                              ___________            v. Gardner, 387  U.S. 136  (1967).  There,  the Court  stated               _______            that  the finality  of agency action  depends on  whether its            impact  `"is sufficiently  direct  and immediate'  and has  a            `direct  effect on  .  . . day-to-day  business.'"  Franklin,                                                                ________            112 S.  Ct. at 2773 (quoting  Abbott, 387 U.S. at  152).  "An                                          ______            agency  action is not  final if it  is only `the  ruling of a            subordinate  official' or `tentative.'"  Id. (quoting Abbott,                                                     ___          ______            387  U.S. at 151).  "The core  question is whether the agency            has completed  its decisionmaking [sic] process,  and whether            the result of that  process is one that will  directly affect            the  parties."  Id.   In answering this  "core question," the                            ___                                            ____________________            4.  Here,  plaintiffs have expressly  conceded that  they are            not attacking the actions  of the President.  Thus,  we focus            our discussion  on Franklin's assessment of  the Secretary of                               __________            Commerce's actions.                                         -15-                                          15            Court first reasoned that  the census statute, unlike others,            does  not explicitly  require the  President to  transmit the            agency's report to Congress.  Id.  The Court stated:                                          ___                      After  receiving the  Secretary's report,                      the  President  is  to "transmit  to  the                      Congress  a  statement showing  the whole                      number of persons in each State  . . . as                      ascertained  under the  .  . .  decennial                      census of  the population."   2 U.S.C.                         2a.     Section  2a  does  not  expressly                      require  the President to use the data in                      the Secretary's report, but,  rather, the                      data  from the "decennial census."  There                      is no statute forbidding amendment of the                      "decennial   census"  itself   after  the                      Secretary  submits  the  report   to  the                      President.            Id. at 2774.            ___                      Therefore,  according  to  the  Court,  the  census            itself still   presents a "moving target" after the Secretary            reports to  the President,  especially since there  exists no            statutory bar  to the President instructing  the Secretary to            reform  the census,  even  after the  President receives  the            Secretary's  report.   Id.   "It is  not until  the President                                   ___            submits  the information  to Congress  that the  target stops            moving, because only then are the  States entitled by   2a to            a  particular number  of Representatives."   Id.    Thus, the                                                         ___            Court concluded:  "Because  the  Secretary's  report  to  the            President   carries   no    direct   consequences   for   the            reapportionment  .  .  .  serv[ing]  more  like  a  tentative            recommendation than a final and binding determination[,] [i]t            is, like  `the ruling of  a subordinate official,'  not final                                         -16-                                          16            and therefore not subject  to review."  Id.  (quoting Abbott,                                                    ___           ______            387 U.S. at 151).                      We agree with the district court's conclusion  that            "[t]he   holding  and  reasoning  of  Franklin  are  directly                                                  ________            applicable to the  facts of the present  controversy."  Cohen                                                                    _____            II, 800 F.  Supp. at 1011.  In arriving  at its decision, the            __            Franklin  Court  explicitly  distinguished statutory  schemes            ________            whereby  the President  is required  to transmit  an agency's                                       ________            report directly to Congress from those in which the President            is not so required,  holding that the former  represent final            agency action, under the APA, but that the latter do not.                      Under the  1990 Act, the President  is not required            to submit the Commission's report to Congress.  In  addition,            the  1990  Act gives  the President  the  power to  order the            Commission to revise its report, and, in the  final analysis,            the President has the power to terminate a base closure cycle            altogether via a second rejection of a Commission report.  In            our  view, the  agency action  involved here bears  even less            indicia of finality than that in Franklin, where the majority                                             ________            referred  to  the  President's  role  in  reapportionment  as            "admittedly ministerial,"  id. at  2775, yet still  found the                                       ___            President's action to be the "final action."  Id.                                                          ___                      Plaintiffs seek to avoid Franklin's restrictions by                                               __________            arguing  that   this  case   involves  a  challenge   to  the            Commission's  faulty procedures, e.g., failing to hold public                                 __________                                         -17-                                          17            hearings and  failing to provide information  to Congress and            the  GAO,   whereas   Franklin,  according   to   plaintiffs,                                  ________            proscribes  only   challenges  to  an   agency's  substantive            decisions.  As an initial matter, we note that Franklin makes                                                           _________            no  such  distinction.   In  any  event,  we  view  it  as  a            distinction without  legal difference.  As  previously noted,            Franklin's  finality determination explored whether an agency            __________            action  has  a "sufficiently  direct  and  immediate" impact.            Here,  if the Commission's report  to the President  is not a            "final action," then the techniques used by the Commission to            create the  report, which  are even more  preliminary to  the            final decision,  cannot themselves be "final agency actions."            In sum, whether  the complaints are  styled as procedural  or            substantive, our  answer to  the "core question"  of finality            remains  the same.   The  judgment of  the district  court is            therefore affirmed.5                      affirmed.                      _________                                            ____________________            5.  Because we have based our decision on Franklin's finality                                                      __________            analysis,  we need not address  whether the 1990  Act, by its            own terms, precludes judicial review.                                         -18-                                          18
