Pennsylvania wins base closing lawsuit

updated 8:08 p.m. ET Aug. 26, 2005

PHILADELPHIA - In a blow to the Pentagon’s plan to shake up National Guard units, a judge ruled Friday that the Defense Department does not have the authority to dissolve a Pennsylvania Air National Guard division without the governor’s approval.

U.S. District Judge John R. Padova said Defense Secretary Donald Rumsfeld should have gotten consent from Gov. Ed Rendell before moving to deactivate the 111th Fighter Wing of the Pennsylvania Air National Guard. The judge said the Pentagon’s recommendation to close the unit is “null and void.”

The ruling came as a base closing commission wrapped up its work in deciding the fate of military bases around the nation. The commission voted Friday to close the Pennsylvania’s Willow Grove station, which is home to the fighter wing and Air Force and Navy reserve units, along with other military units. But the commission did not deactivate the 111th.

It was not immediately clear how the ruling might affect the fate of other guard units targeted by the Pentagon.

Several other states have filed or are considering filing similar lawsuits.

The Pentagon had recommended that the guard unit, with more than 1,000 jobs, be deactivated and that its aircraft either be retired or relocated to other Air National Guard bases.

The lawsuit didn’t challenge the Pentagon’s authority to close Willow Grove, only whether the federal government could deactivate the 111th Fighter Wing based there.

The judge wrote that the loss of the guard unit would deprive the state of nearly 25 percent of its total Air Guard strength along with eliminating a unit vital to homeland security in the state.

Justice Department lawyers had argued that the Base Realignment and Closure Act supersedes the federal law requiring gubernatorial consent.

Rendell expressed confidence that the decision would hold up on appeal and praised the judge’s courage for standing up to the federal government.

“We’re exceptionally gratified,” Rendell said. “I think it’s fair to say we’re elated.”

Rendell sent a letter to the Pentagon on May 26 advising Rumsfeld that he did not consent to the deactivation or relocation of the fighter wing.

The governor commands the unit’s activities 90 percent of the time, as it responds to floods, errant planes and other emergencies, Rendell said. Federal officials command the Guard only when it is activated for missions such as the war in Iraq.

Justice Department spokesman Charles Miller said officials were reviewing the judge’s opinion and had not decided how to proceed. The Pentagon declined to comment on the ruling.

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