County of Seneca v. Cheney, 92-CV-6380L.
| Decision Date | 09 November 1992 |
| Docket Number | No. 92-CV-6380L.,92-CV-6380L. |
| Citation | 806 F. Supp. 387 |
| Parties | COUNTY OF SENECA, Save Our Seneca, Keep Our Base in Romulus Alive, American Federation of Government Employees Local 2546, and Seneca County Industrial Development Agency, Plaintiffs, v. Richard CHENEY, as the Secretary of Defense, Michael Stone, as the Secretary of the Army, and Susan Livingstone, Assistant Secretary of the Army, Defendants. |
| Court | U.S. District Court — Western District of New York |
Edward F. Premo, II, Harter, Secrest & Emery, Rochester, N.Y., for plaintiffs.
Susan Korytkowski, U.S. Dept. of Justice, Civ. Div., Washington, D.C., Brian McCarthy, Asst. U.S. Atty., Rochester, N.Y., for defendants.
DECISION AND ORDER
Agencies of the Government ?€” just like ordinary citizens ?€” must comply with the law regardless of whether it is inconvenient or burdensome to do so. Because I believe that the Secretary of the Army and the Secretary of Defense acted contrary to a statute recently passed by Congress governing the closure or realignment of military installations, I hereby issue an injunction in order to guarantee compliance with the law.
This is an action for declaratory and injunctive relief involving claims under the Defense Base Closure and Realignment Act of 1990 ("BRAC"), Pub.L. 101-510, 104 Stat. 1808, the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. ? 4321 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. ?? 702 & 706(2), and the Declaratory Judgment Act, 28 U.S.C. ? 2201. Plaintiffs1 seek to enjoin the Secretary of Defense and the Secretary of the Army (sometimes collectively "the Secretary") from taking any actions in connection with the elimination and reduction of missions or functions at the Seneca Army Depot ("SEAD" or "the base") in Romulus, New York that would result in the elimination of hundreds of civilian positions at the base.
This action was precipitated by the Secretary's decision to change the nature of the work performed at SEAD. This change by any analysis is a major one which would eliminate approximately 70 percent of the authorized civilian positions at the base. Plaintiffs seek to enjoin this unilateral action by the Secretary on the grounds that the defendants acted in violation of BRAC and NEPA. In essence, plaintiffs claim that the Secretary is "realigning" SEAD without complying with the rigid procedures established by Congress in BRAC for the closure or realignment of military installations.
Defendants oppose this action on the grounds that their actions are not subject to judicial review, and, alternatively, that BRAC and NEPA do not apply to the actions occurring at SEAD. Pending before me now is plaintiffs' motion for preliminary injunctive relief under Fed.R.Civ.P. 65.
For the reasons discussed below, plaintiffs' motion is granted and a preliminary injunction will issue to bar the Army and the Department of Defense from carrying out the reductions at SEAD.
SEAD, which was built in 1941 and known originally as the Seneca Ordnance Depot, is an Army depot under the command of the Depot System Command ("DESCOM"), one of the subordinate commands of the Army Material Command ("AMC"). DESCOM is responsible for all the Army depots in the United States and abroad, and AMC is the major Army command responsible for the research, development, acquisition, and logistics for Army material. Historically, SEAD has had two primary missions or functions relating to: (1) special weapons; and (2) the rehabilitation of industrial plant equipment ("IPE"). The special weapons mission required SEAD to store, issue, maintain, and supply special weapons, such as ground-launched nuclear missiles and nuclear artillery shells,2 and conventional munitions, including bullets, bombs, and shells. There are 442 civilian and 387 military personnel positions associated with this mission. The IPE rehabilitation mission required SEAD to maintain and store industrial equipment, which consists, generally, of large machine tools used by the Department of Defense ("DOD") industrial organizations and contractors, including depots, arsenals and ammunition plants. There are 143 civilian personnel positions associated with this mission. In addition, the 833d Ordnance Company, a munitions maintenance unit, was a tenant organization stationed at SEAD.
Between 1990 and 1991, the DOD and the Army made several decisions that were intended to restructure SEAD. First, in 1990, the DOD planned a gradual reduction in its special weapons that was to start in 1991 and end in 1998. In March 1991, DOD determined the number of special weapons that it wanted to retain. Based on this determination, the Army concluded that its depot system's special weapons missions should be reduced accordingly. AMC therefore ordered DESCOM to design a plan to consolidate the Army's special weapons mission at a single site. The report submitted by DESCOM recommended the consolidation and storage of special weapons at a depot other than SEAD.
Next, on July 25, 1991, Assistant Secretary of Defense Colin McMillan issued a memorandum ordering that all depot IPE maintenance functions be consolidated in Defense Logistics Agency ("DLA") facilities. SEAD was not such a facility. DLA was scheduled to take the lead in coordinating with the Army the transfer of all IPE depot maintenance workloads to DLA facilities. The consolidation of IPE maintenance was expected to result in the elimination of 122 civilian positions at SEAD by October 1, 1992.
Finally, the 833d Ordnance Company was scheduled to be inactivated on September 14, 1992. The inactivation was expected to result in the loss of approximately 75 military positions at SEAD.
In light of the proposed actions, on August 27, 1991, AMC directed DESCOM to conduct a study under Army Regulation ("AR") 5-10, which specified the procedures that had to be followed and the documentation that would be required before the Army reduced its civilian employment by 50 persons or 10%, whichever was less. The study's focus was on the DESCOM missions and workloads that would be affected by a reduced special weapons mission, a consolidation of IPE rehabilitation work, and the inactivation of the 833d Ordnance Company. A study team was subsequently organized to begin collecting data.
Not long after the study began, however, President George Bush made a significant announcement concerning this country's use of nuclear weapons. This announcement, which reflected historic international agreements with the Soviet Union, would have significant impact on this country's arsenal of nuclear weapons. President Bush announced "a series of sweeping initiatives affecting every aspect of our nuclear forces on land, on ships, and on aircraft." Defendants' Memorandum in Opposition to Plaintiffs' Motion ("Defendants' Mem.") at 13 (). As part of these initiatives President Bush directed that "the United States eliminate its entire worldwide inventory of ground-launched ... nuclear weapons." Id. (alterations in original).
Following President Bush's announcement, defendant Richard Cheney, the Secretary of Defense, in a memorandum dated September 28, 1991, directed the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretaries of Defense and Assistant Secretary of Defense for Command, Control Communications and Intelligence to implement the President's decision. The memorandum ordered that the following actions be completed as soon as possible:
Declaration of Robert O. Frantz, Ex. A.
As a result of the President's announcement and the Secretary's implementing directives, the prior decisions concerning the realignment of SEAD's special weapons mission were scrapped. It was then determined, according to defendants, that rather than "realign" the special weapons mission, the mission or function was to be eliminated completely. Consequently, AMC ordered DESCOM to change the focus of the AR 5-10 study that had been ordered earlier to account for this change concerning the special weapons mission at SEAD.
DESCOM's study team submitted a preliminary AR 5-10 report on October 31, 1991. According to defendants, AMC found that the report was not properly conducted according to Army regulations. Consequently, AMC compiled additional information and performed further analysis to ensure that the final report conformed to all AR 5-10 requirements.
Defendants claim that as part of this analysis, AMC's Base Realignment and Closure Office analyzed whether BRAC procedures had to be followed. The decision was that BRAC did not apply to the proposed actions for SEAD. AMC subsequently completed the AR 5-10 report and submitted it to the Army on December 16, 1991.
The Army reviewed the final report and performed additional analysis. It concurred in the report's findings and recommendations. In addition, according to defendants,...
To continue reading
Request your trial
-
County of Seneca v. Cheney
...base closure process by undertaking a "realignment" of SEAD without submitting to the procedures specified in BRAC. County of Seneca v. Cheney, 806 F.Supp. 387 (W.D.N.Y.1992), vacated by order, 992 F.2d 320 (2d Cir.1993). The government argues that the proposed RIF at SEAD is not a realignm......
-
Independent Guard Ass'n of Nevada, Local No. 1 v. O'Leary on Behalf of U.S. Dept. of Energy, 93-15769
...military personnel who had participated in a military conflict, and did not speak to contractor support functions. County of Seneca v. Cheney, 806 F.Supp. 387 (W.D.N.Y.1992), vacated, 992 F.2d 320 (2d Cir.), opinion reported in 12 F.3d 8 (2d Cir.1993), is even less authoritative. The vacate......
- County of Seneca v. Cheney