Role Models America, Inc. v. White

• Decision Date: 04 February 2003
• Docket Number: No. 02-5037.,02-5037.
• Citation: 317 F.3d 327
• Parties: ROLE MODELS AMERICA, INC., Appellant, v. Thomas E. WHITE, Secretary of the Army, and Roderick R. Paige, Secretary of the Department of Education, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

317 F.3d 327

ROLE MODELS AMERICA, INC., Appellant, v. Thomas E. WHITE, Secretary of the Army, and Roderick R. Paige, Secretary of the Department of Education, Appellees.

No. 02-5037.

United States Court of Appeals, District of Columbia Circuit.

Argued December 5, 2002.

Decided February 4, 2003.

Appeal from the United States District Court for the District of Columbia (No. 01cv01595).

P. David Richardson argued the cause for appellant. With him on the briefs was Joseph C. Port Jr.

Joel Wilson, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Roscoe C. Howard Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

This case involves a challenge to the Secretary of Defense's decision to convey a closed military base to a state-created development corporation. Because the procedures by which the Secretary reached this decision violated applicable statutory and regulatory requirements, we reverse the district court's contrary conclusion and remand with instructions to enjoin the conveyance.

I.

The Defense Base Closure and Realignment Act of 1990 (DBCRA), 104 Stat. 1808 (codified as amended at 10 U.S.C. § 2687 note), establishes a mechanism for the "timely closure and realignment of military installations inside the United States." Id. § 2901(b) (for ease of reference, all citations to the DBCRA are to the Act as it appears in note following 10 U.S.C. § 2687). The Act requires the Secretary of Defense to determine, within six months of a decision to close a military base, whether other federal departments or agencies can use the property. Id. § 2905(b)(5)(A). If none can, the Secretary must "publish in the Federal Register and in a newspaper of general circulation in the communities in the vicinity of the installation," id. § 2905(b)(7)(B)(i)(IV), an announcement that "surplus" property exists, id. § 2905(b)(7)(B)(i)(II). Thirty days thereafter, the Local Redevelopment Authority (LRA), an entity "established by State or local government and recognized by the Secretary of Defense," 24 C.F.R. § 586.5; 32 C.F.R. § 176.5, must "[p]ublish,... in a newspaper of general circulation in the communities in the vicinity of the installation, the time period during which the LRA will receive notices of interest from ... representatives of the homeless[] and other interested parties," 24 C.F.R. § 586.20(c)(1); 32 C.F.R. § 176.20(c)(1). Notices of interest "shall describe the need of the [applicant] for the buildings or property," DBCRA § 2905(b)(7)(C)(i), and must include, at a minimum, "a description of the planned use," 24 C.F.R. § 586.20(c)(2)(ii)-(2)(iii); 32 C.F.R. § 176.20(c)(2)(ii)-(2)(iii). "Other interested parties" means "any parties eligible for the conveyance of property ... under ... the Federal Property and Administrative Services Act of 1949 [(FPASA), 40 U.S.C. § 101 et seq.]," DBCRA § 2905(b)(7)(P) — a statute designed to provide "an economical and efficient system for ... [d]isposing of surplus [federal] property," 40 U.S.C. § 101(3). Non-profit educational institutions, if recommended by the Secretary of Education, are among the groups eligible for FPASA conveyances. Id. § 550(c).

After the LRA publishes the required notice, the process bifurcates: Notices of interest submitted by representatives of the homeless and those submitted by FPASA-eligible "other interested parties" are considered on separate, parallel tracks. On the homeless-assistance track, the LRA begins by considering both homeless submissions and potential commercial uses in order to formulate a comprehensive redevelopment plan for the surplus property. DBCRA § 2905(b)(7)(F). The LRA then submits its plan to the Secretary of Housing and Urban Development, who in turn determines whether the LRA has "balance[d]" commercial and homeless needs "in an appropriate manner." Id. § 2905(b)(7)(H)(i)(III). Meanwhile, on the other track, the Secretary of Defense evaluates any notices of interest submitted by FPASA-eligible parties. Id. § 2905(b)(7)(K)(v). This process occurs before the LRA submits its plan to the HUD secretary. Id. If the Secretary of Defense determines that an "other interested" applicant meets the eligibility standards established by the FPASA and associated regulations, the Secretary effects a "public benefit conveyance" of the requested property to that party. Id. After completion of the two parallel processes — that is, after the Secretary of Defense has conducted the public benefit conveyance screenings and the HUD Secretary has approved the LRA's plan — the Secretary of Defense "shall dispose" of the remaining base property, giving "substantial deference" to the LRA's redevelopment plan. Id. § 2905(b)(7)(K)(i), (K)(iii).

This case involves the application of the DBCRA's disposition procedures to Fort Ritchie, a U.S. Army base located in the Catoctin mountains of western Maryland. Fort Ritchie's history as a military installation began in 1926 when Maryland purchased the property — previously a resort for wealthy Mid-Atlantic urbanites — to create a national guard training site, naming it for then-Governor Albert C. Ritchie. Military District of Washington, Fact Sheet: Fort Ritchie Background, at http:// www.mdw.army.mil/fs-i12.htm (Dec. 11, 2002). During World War II, the Army used Fort Ritchie for counterintelligence training, including staging mock Nazi rallies in a specially built faux Bavarian village. See Steve Vogel, In Western Md., Fort Ritchie Leaving Military for Civilian Life, WASH. POST, July 17, 1998, at C1. The Army even brought German and Japanese prisoners-of-war to the base to provide trainees with authentic interrogation experience. Id. During the 1950s, the Army used the fort as a support base for nearby Site R, a top-secret command structure known as the "underground Pentagon." Id. Beginning in the 1970s, Fort Ritchie became a high-tech military communications center. Id. By the mid-1990s, however, the fort had outlived its usefulness, and the Secretary of Defense and the President slated it for closure during the 1995 base closure round. See Notice of Recommended Base Closures and Realignments, 60 Fed.Reg. 11414, 11436 (Mar. 1, 1995) (Secretary of Defense recommending closure of the base); President's Message to Congress Transmitting Recommendations of the Defense Base Closure and Realignment Commission, H.R. Doc. No. 104-96, at 1 (1995) (President accepting recommendation).

On May 10 and May 15, 1996, the Department of Defense, acting pursuant to its duties under the Act, published notices in the Federal Register and a local newspaper. See Notice of Availability of Surplus Land and Buildings in Accordance with Public Law 103-421 Located at Fort Ritchie Military Reservation, Cascade, MD, 61 Fed.Reg. 21,445-05 (May 10, 1996); THE HERALD-MAIL, May 15, 1996, at C8. Also on May 10, the Fort Ritchie LRA (later renamed PenMar Development Corporation) published two notices, virtually identical to each other, entitled "Homeless Assistance Outreach Initiative." These notices announced:

The Fort Ritchie Local Redevelopment Authority ... will receive Notices of Interest from representatives of agencies that seek to serve the needs of our community's homeless population, (Washington County, Maryland and Franklin County, Pennsylvania), until 4:30 p.m., August 9, 1996....

Notices of Interest must include at least the following: a description of the proposed homeless assistance program, including the specific proposed reuse of property or facilities, such as supportive services, job and skills training, employment programs, emergency shelters, traditional or permanent housing, food and clothing banks, treatment facilities or other activities that meet homeless needs as assessment of the need for the program; a description of the extent to which the program is or will be coordinated with other homeless assistance programs in the community; information about the physical requirements necessary to implement the program, including a description of the buildings and property that are necessary in order to carry out the program; a description of the financial plan, the organization and the organizational capacity of the representative to carry out the program; and an assessment of the time required in order to commence carrying out the proposed program.

Joint Appendix (J.A.) 71 (reprinting LRA-1 Public Notice, Homeless Assistance Outreach Initiative, Fort Ritchie, Cascade, MD, THE HERALD-MAIL, May 10, 1996 (page number omitted in J.A.)); LRA-1 Public Notice, Homeless Assistance Outreach Initiative, Fort Ritchie, Cascade, MD, THE RECORD HERALD, May 10, 1996, at 10B. As of December 1997, when PenMar submitted its redevelopment plan to HUD, the Secretary of Defense had conducted no public benefit conveyance screenings. HUD approved the plan, and then, in August 1998, the Secretary of Defense published a "Record of Decision" (ROD) in the Federal Register accepting the plan. See Notice of Record of Decision on the Final Environmental Impact Statement (FEIS) on the Disposal and Reuse of the U.S. Army Garrison, Fort Ritchie, Washington County, Maryland, 63 Fed.Reg. 43383 (August 13, 1998). Under the Act, publication of the ROD obligated the Secretary of Defense to dispose of the property in accordance with the LRA's plan. DBCRA § 2905(b)(7)(K)(iii).

Appellant Role Models America, Inc., a non-profit educational institution, seeks to convert surplus military bases into military-style preparatory academies for at-risk secondary-school dropouts. To support this effort, Congress appropriated $10 million in start-up funding to "establish an academy that consists of a residential center located on the site of a military installation closed or realigned pursuant to a law providing for closures and realignments of such installations." 29...