Ferrone v. Perry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN FERRONE; TERESA MCCLURG;
JOHN FERRONE, President of an
unincorporated association, for
himself and all other members of
such association aka The Fort
Meade Flying Activity,
Plaintiffs-Appellants,
and
No. 96-1817
HECTOR J. SANTA ANNA, on behalf
of themselves and all others
similarly situated,
Plaintiff,
v.
WILLIAM J. PERRY, Secretary of
Defense; TOGO D. WEST, JR.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-95-2906-AMD)
Argued: May 8, 1997
Decided: July 8, 1997
Before MURNAGHAN and HAMILTON, Circuit Judges, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Peter Baldwin Turney, Baltimore, Maryland, for Appel-
lants. Jeffrica Jenkins Lee, Appellate Staff, Civil Division,
UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. ON BRIEF: John E. Harris, Sr., Baltimore, Maryland, for
Appellants. Frank W. Hunger, Assistant Attorney General, Lynne
Ann Battaglia, United States Attorney, Barbara C. Biddle, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
The present case is one which should never have been brought in
federal court. The Plaintiffs' claims fail on several grounds, any
one
of which should have indicated to competent counsel that suit in
this
action was unadvisable. The suit lacks subject matter jurisdiction
since it is not ripe. In addition, the Plaintiffs may lack standing
and
their original cause of action may be moot. Moreover, on
substantive
grounds, the Plaintiffs have absolutely no legal argument which
would substantiate their claim.
I. FACTS
In 1988, Congress passed the Base Closure Realignment Act
("BRAC"), 10 U.S.C.A. § 2687 (West Supp. 1994), Title II of Pub.
L. 100-526, 102 Stat. 2623 (1989). BRAC authorized the Secretary of
Defense to close all military installations recommended for closure
by
2
the Base Closure Commission. Part of Fort Meade Army Base,
including Tipton Army Airfield ("TAA"), was included for closure as
part of the Commission's report.
The Act provides that the Secretary shall close all installations
rec-
ommended in the report by September 30, 1995. BRAC§ 201, 102
Stat. 2627 (1989). In addition, the Act specifically prohibited the
clo-
sure of the bases in the report if any base in the report was not
closed.
BRAC § 202, 102 Stat. 2627.
Closure under 32 C.F.R. 91.3 is defined as:
(b) Closure. All missions of the base have ceased or have
been relocated. All personnel (military, civilian, and con-
tractor) have either been eliminated or relocated except for
the personnel required for caretaking and disposal of the
base or personnel remaining in authorized enclaves.
The Army Judge Advocate General ("JAG") interpreted this provision
to mean that once a base or a part of a base was closed, no
military
activity or organization associated with the military could use the
area
closed.
Plaintiffs in the instant case are the members of the Fort Meade
Flying Activity ("FMFA") and John Ferrone as their representative.1
The Fort Meade Flying Activity is a nonappropriated fund instrumen-
tality ("NAFI")2 of the Army which operated at TAA prior to its
clo-
sure.
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1 All plaintiffs are collectively referred to as FMFA.
2 Army regulations define NAFIs
3-1. Nonappropriated fund instrumentalities
a. Every NAFI is legally constituted as an "instrumentality of
the United States." Funds in NAFI accounts are Government
funds, and NAF property, including buildings, is Government
property. . . .
This means that --
(1) Each NAFI operates under the authority of the U.S. Gov-
ernment in accordance with applicable Federal laws and depart-
mental regulations.
3
The FMFA included active duty and retired military, and Depart-
ment of Defense ("DOD") civilian personnel. Members of the FMFA
received tremendous benefits from the Army. Members parked their
airplanes for free at TAA, obtained cheaper liability insurance
from
DOD, and purchased fuel at wholesale prices. Since TAA's closure,
FMFA has moved its planes to Lee Airport in Annapolis. FMFA
sought a declaratory judgment stating that under BRAC, FMFA may
continue to operate at TAA even after TAA closed. Furthermore,
FMFA argues that the Army failed to provide it with notice as
required by § 204(b)(3) of BRAC.
Section 204(b)(3), as originally enacted provided:
(3) Before any action is taken with respect to the
disposal or transfer of any real property or facility
located at a military installation to be closed or
realigned under this title, the Secretary shall notify
all departments and other instrumentalities (includ-
ing nonappropriated fund instrumentalities) within
the Department of Defense of the availability of
such property or facility, or portion thereof, and
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(2) [NAFIs] are entitled to the same sovereign privileges and
immunities as the Federal Government accorded by Federal law.
(3) Applicable DOD instructions and directives and imple-
menting regulations have the force and effect of law.
b. NAFIs --
(1) Are administered by military or civilian personnel acting
in an official capacity.
. . . .
(5) expend resources to support MWR [morale, welfare and
recreation] programs from which NAF revenues were derived.
. . . .
(9) Are considered integral and essential to the conduct of
the
military mission.
AR 215-1, § 3-1.
4
may transfer such property, facility, or portion,
without reimbursement, to any such department or
instrumentality. . . . This paragraph shall take pre-
cedence over any other provision of this title or
other provision of law with respect to the disposal
or transfer of real property or facility located at a
military installation to be closed or realigned under
this title.
Section 204(b)(3) was repealed by the Congress, and the district
court
determined that § 204(b)(3) was inapplicable because of Congress's
repeal. However, Congress reinstated § 204(b)(3) as part of Pub. L.
104-201, 110 Stat. 2788. The new § 204(b)(3) removes any reference
to notice but states that the Secretary of Defense may transfer
real
property or facilities located at military installations to be
closed to
a NAFI.
FMFA argues that the Army failed to provide notice as required by
§ 204(b)(3). In addition FMFA argues that since § 204(b)(3)
specifi-
cally provides that NAFIs may receive "closed" property that NAFIs
must be able to occupy that property.
The district court rejected Plaintiff's argument on the merits. It
held that the decision was within the Army's discretion and that
since
§ 204(b)(3) had been repealed Plaintiffs could not rely on it to
support
its case. Plaintiffs requested that the district court amend its
judgment
and determine (1) whether they should be allowed to return to TAA
if it should be returned to civilian control and (2) the rights of
the par-
ties in the fuel system purchased by FMFA.
II. DISCUSSION
The FMFA originally sought to stop the closure of TAA. Since
TAA has been closed, such a request is obviously moot. FMFA now
seeks a judgment by this Court that FMFA may return to TAA once
TAA is reopened by a civilian operator. At the present time, the
Army
is currently involved in cleaning up unexpended ordnances at TAA,
and the airport has not been sold to a private operator.
Furthermore,
it is unclear if TAA will ever be sold to a private operator and if
that
operator will permit FMFA to operate at the new facility.
5
Federal courts are only permitted to adjudicate "actual, ongoing
cases or controversies." Lewis v. Continental Bank Corp., 494 U.S.
472, 477 (1990). The Supreme Court has set out a two part test for
determining whether an issue is ripe. Abbot Lab. v. Gardner, 387
U.S.
136, 148-149 (1967). First, the issue must be fit for judicial
decision,
and second, the petitioning party must experience hardship due to
the
court's action. Abbot Lab., 387 U.S. at 149.
In the instant case, a controversy does not exist. TAA is closed
and
the Department of Defense is actively cleaning up environmental
problems and unexploded ordnances. There is no guarantee that TAA
will be sold and there is certainly no guarantee that TAA will ever
operate as a civilian airport.
The issue before us is not ripe and the Court is being asked to
ren-
der an advisory opinion. FMFA asks the Court to determine that if
TAA becomes suitable for sale, and if it is sold to a private
party, and
if that party operates the facility as an airport, then FMFA may
oper-
ate at TAA. The Court declines to enter into the folly and
conjecture
suggested by FMFA.3
In addition, we find that the Plaintiffs fail the second part of
the
Abbot test. FMFA will not experience an unnecessary hardship by our
failure to consider the case at bar, since its claim lacks
substantive
merit. Thus, even if we were to consider the claim on its merits,
FMFA's claim would still fail. First, it is well within the Army's
dis-
cretion to take a strict reading of BRAC in order to avoid possible
violations of the law. If the Army believes that the operation of
a fly-
ing activity on a closed Army base might violate BRAC, it is within
the Army's discretion to prohibit an Army flying activity from
operat-
ing at the closed Army airfield. 4
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3 We also note that there is a serious question of whether the
Plaintiffs
in the instant case have standing to sue. However, since we find
that the
issue is not ripe, we decline to reach the issue of whether the
Plaintiffs
have standing.
4 Section 204(b)(3) provides that the Secretary of Defense may
transfer
real property or facilities located at closed Army installations to
a NAFI.
It however does not state that the Secretary of Defense must do so,
nor
does it prohibit the Army from exercising caution and avoiding any
pos-
sible violation of BRAC.
6
In addition, flying activities are governed by Army regulations.
Army regulations prohibit the establishment of a flying activity at
any
installation where there is not an active Army flying unit. See AR
215-1, Appendix M, M-1.b (1995). 5 Thus, Army regulations clearly
prohibit the establishment of a flying activity at TAA since there
is
no longer an active Army air unit at Fort Meade. If a flying
activity
cannot be established at TAA, it is not unreasonable for the Army
to
conclude that a flying activity also cannot operate at that same
loca-
tion.
It is important to note that the FMFA was created by the Army to
promote morale, welfare and recreation of its personnel and the
Army
has discretion about what activities and organizations it will
sponsor
in this regard. It is certainly within the Army's discretion to
prohibit
flying activities from operating at specific locations. It is also
com-
pletely rational for the Army to determine that flying associations
may only operate at a facility which has an active army air unit.
What
is irrational, is the claim by FMFA, an organization created by the
Army at the Army's discretion, that the Army must let the FMFA
operate at a closed Army airfield. Thus, even if BRAC would allow
FMFA to operate at TAA, other Army regulations would prohibit
such authorization.
Plaintiffs also ask the Court to determine the rights of the
parties
regarding a fuel system purchased by the FMFA. The district court
did not rule on this issue and the issue is not properly before the
Court. However, we note that if the fuel system is the property of
the
FMFA, a NAFI, Army regulations adequately deal with the disposi-
tion of NAFI property. See AR 215, § 12-14.a(3).
FMFA has received tremendous discretionary benefits from the
Army during FMFA's operation at TAA. The Army has now decided
that FMFA's operation at TAA is no longer proper. The Army should
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5 At oral argument the government argued that AR 215-2 (1990) pre-
vents a flying activity from operating at an installation unless
there is an
active Army air unit. The regulation cited by the government is no
longer
in force, and the proper regulation is AR 215-1, Appendix M. AR
215-
1 prohibits the establishment of a flying activity unless there is
an active
Army air unit.
7
be able to eliminate a discretionary benefit such as this one
without
having to undergo frivolous suits. Although the present case is
dis-
missed because the Court lacks subject matter jurisdiction to
consider
the case, we warn the parties that this is not an invitation to
refile the
suit at a later time. The Army clearly has the discretion to
prevent
FMFA from operating at TAA, and future frivolous suits on the same
subject will not be looked at kindly by this Court.
AFFIRMED
8