BY SUE M. MORGAN
Staff Writer
EATONTOWN — One of the co-counsels for area legislators and Fort Monmouth supporters insists that the legal battle to spare the local U.S. Army base from shutdown by the Defense Department is not finished yet.
Despite three different unsuccessful attempts in federal courts over three consecutive days last week to prevent U.S. Secretary of Defense Donald Rumsfeld from moving ahead with the Base Closing and Realignment (BRAC) process that calls for shuttering Fort Monmouth, Eugene LaVergne, representing the Patriots’ Alliance advocacy group, is gearing up for the next courtroom debate.
“The fight is not over,” said LaVergne of Asbury Park. “We’ll leave no stone unturned.”
Although the list of 62 military installations to be closed or realigned under the BRAC process is now in the hands of President George W. Bush for his review, LaVergne is anticipating the next move––that is to try to prove that the Defense Department and ultimately the nine-member BRAC Commission violated its own criteria in targeting Fort Monmouth for shutdown as a cost-cutting measure.
Bush has until Sept. 23 to accept or reject the entire list of bases recommended for closing or restructuring as formulated by the Defense Department in May and approved by the independent BRAC Commission on Aug. 24.
Should Bush accept the Defense Department’s recommendations and sign off on them, he will forward the entire list to Congress. Both houses of Congress then have 45 days from that time to vote either up or down on the list as a whole.
“After Congress votes ‘yes’ or ‘no,’ the next day we’ll be in court,” LaVergne said.
At that point, the BRAC recommendations will become law and can be challenged in a federal court as such, said LaVergne who has represented the Patriots’ Alliance in all three attempts to prevent the Fort Monmouth closing from becoming legally binding.
In all three of those court appearances last week, LaVergne and co-counsel Frank G. Capece, representing U.S. Sen. Jon Corzine (D-N.J.) and a bipartisan contingent of area legislators, argued against the process by which the local installation was selected by the Defense Department for closing.
“The Department of Defense didn’t follow the federal law in listing Fort Monmouth,” LaVergne said.
On behalf of their plaintiffs, both attorneys have also contended that the BRAC Commission acted illegally when it sanctioned the Defense Department’s recommendation to close Fort Monmouth even though the Pentagon violated six of the eight criteria set by Congress to justify a base’s shut down or realignment.
“The BRAC Commission said it wasn’t lawful [to close Fort Monmouth], but voted for it anyway,” LaVergne continued.
LaVergne’s statements come on the heels of the U.S Supreme Court’s refusal to issue an injunction last Thursday to keep the BRAC list of bases approved for shutdown or downsizing from going to the Oval Office later that day.
At that time, Corzine, presently the state’s Democratic candidate for governor, turned to Supreme Court Justice David H. Souter and asked that seven-member body to hear the case.
Souter, in turn, referred the matter to the full Supreme Court, but the seven justices as a whole declined to intervene in the case at all, LaVergne said.
On Sept. 7, the Third Circuit Court of Appeals in Philadelphia refused to hear an .appeal of the BRAC Commission’s vote to shutter Fort Monmouth. That three-member panel also upheld the previous day’s decision by a U.S. District Court judge to toss the case out of a federal courtroom in Trenton.
“We have been protecting every procedural right to be heard,” LaVergne said. “We’re now preparing for our next opportunity.”
Corzine is “very disappointed” over the latest setbacks in the appeals court and the Supreme Court, but still vowing to stay the course in battling for the fort according to David Wald, a spokesman for the senator.
“The thing to do now is to look at other ways to continue this fight,” Wald said. “The [BRAC] Commission itself acknowledged that the Pentagon had not made the case that closing Fort Monmouth would not have a detrimental effect on the programs there.”
To that end, Corzine will look for the Defense Department to certify that closing the base and subsequently transferring the bulk of its missions to the Aberdeen (Md.) Proving Ground will not hurt the armed forces serving in Iraq and Afghanistan.
That condition was set by the BRAC Commission when it authorized the Defense Department to move forward with the closing following its review and vote last month.
At some point in the future, Rumsfeld will have to prove to Congress’ Armed Services Committee that service personnel depending on delivery of technical devices developed at Fort Monmouth will not be put at risk by the shutdown and transfer to Maryland, said U.S. Rep. Rush Holt (D-12).
By insisting that Rumsfeld comply with the BRAC Commission’s order that Fort Monmouth not be shut down until all missions are recreated at Aberdeen, the legislators are looking out for the service personnel as well as fort workers who research, develop and deliver equipment to them, Holt explained.
“We’ll first of all be looking after the dependence of men and women in the field on the work done at Fort Monmouth to make sure they get what they need,” Holt said.
Unlike LaVergne, however, Holt, who co-chairs the local Save Our Fort Committee with U.S. Rep. Frank Pallone (D-6), does not foresee any further court appearances.
“The Supreme Court did say there was no further judicial review [of the BRAC decision],” Holt said.
Meanwhile, Frank Muzzi, co-chair of the Patriots’ Alliance and an Eatontown-based military contractor with operations on post, believes that Holt, Pallone and others in New Jersey’s congressional delegation will hold Rumsfeld accountable for certifying to Congress that the soldiers are protected, despite the closure.
“Our congressmen are going to be monitoring that very closely,” Muzzi said.
Through LaVergne, the Patriots Alliance continues to explore its legal options, even though they have largely been exhausted, Muzzi said.
Under the Pentagon plan, Fort Monmouth would be closed over a period of two to five years. About 467 military and most of the 5,557 civilian workers would be asked to relocate to the Aberdeen base or to installations elsewhere in Maryland, Ohio and West Point, New York

