Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2002 Decided February 4, 2003
No. 02-5037
ROLE MODELS AMERICA, INC.,
APPELLANT
v.
THOMAS E. WHITE, SECRETARY OF THE ARMY,
AND RODERICK R. PAIGE, SECRETARY OF THE
DEPARTMENT OF EDUCATION,
APPELLEES
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.,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attor-
ney.
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 an-
nouncement that ‘‘surplus’’ property exists, id.
§ 2905(b)(7)(B)(i)(II). Thirty days thereafter, the Local Re-
development 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]ub-
lish, TTT in a newspaper of general circulation in the commu-
nities in the vicinity of the installation, the time period during
which the LRA will receive notices of interest from TTT
representatives of the homeless[ ] and other interested par-
3
ties,’’ 24 C.F.R. § 586.20(c)(1); 32 C.F.R. § 176.20(c)(1). No-
tices 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 TTT under
TTT 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 TTT [d]isposing of surplus [federal]
property,’’ 40 U.S.C. § 101(3). Non-profit educational institu-
tions, 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 commer-
cial uses in order to formulate a comprehensive redevelop-
ment 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). Mean-
while, 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’’
4
to the LRA’s redevelopment plan. Id. § 2905(b)(7)(K)(i),
(K)(iii).
This case involves the application of the DBCRA’s disposi-
tion 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 Mary-
land 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 ral-
lies 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 experi-
ence. Id. During the 1950s, the Army used the fort as a
support base for nearby Site R, a top-secret command struc-
ture known as the ‘‘underground Pentagon.’’ Id. Beginning
in the 1970s, Fort Ritchie became a high-tech military com-
munications 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 Recommenda-
tions of the Defense Base Closure and Realignment Commis-
sion, 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,
5
1996); THE HERALD–MAIL, May 15, 1996, at C8. Also on May
10, the Fort Ritchie LRA (later renamed PenMar Develop-
ment Corporation) published two notices, virtually identical to
each other, entitled ‘‘Homeless Assistance Outreach Initia-
tive.’’ These notices announced:
The Fort Ritchie Local Redevelopment Authority TTT
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, 1996TTTT
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 train-
ing, employment programs, emergency shelters, tradi-
tional 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 re-
quirements necessary to implement the program, includ-
ing a description of the buildings and property that are
necessary in order to carry out the program; a descrip-
tion of the financial plan, the organization and the organi-
zational 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, Cas-
cade, 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 Sec-
retary of Defense had conducted no public benefit conveyance
screenings. HUD approved the plan, and then, in August
6
1998, the Secretary of Defense published a ‘‘Record of Deci-
sion’’ (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, Mary-
land, 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 edu-
cational institution, seeks to convert surplus military bases
into military-style preparatory academies for at-risk second-
ary-school dropouts. To support this effort, Congress ap-
propriated $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 installa-
tions.’’ 29 U.S.C. § 2914(g)(2); H.R. REP NO. 105–825, at
1257 (1998) (encouraging Department of Labor to make funds
available to Role Models). Interested in using Fort Ritchie
as a school, Role Models approached PenMar in December
1996 about a public benefit conveyance screening. PenMar
replied that ‘‘it was not the appropriate screening time.’’
Alexander Decl. ¶ 13. Later, PenMar told Role Models that
‘‘the screening process for the educational conveyance provi-
sions was not required at Fort Ritchie.’’ Id.
Claiming that it was entitled to a public benefit conveyance
screening regarding the Fort Ritchie property, Role Models
filed suit in the United States District Court for the District
of Columbia against the Secretaries of the Army and of
Education, requesting a temporary restraining order and a
preliminary injunction prohibiting the conveyance of Fort
Ritchie to PenMar until the Government conducted a proper
screening. The district court denied injunctive relief, finding
that Role Models failed to satisfy any of the requirements for
a preliminary injunction. Role Models Am., Inc. v. White,
193 F. Supp. 2d 76 (D.D.C. 2002). Role Models appeals,
seeking interlocutory relief pursuant to 28 U.S.C. section
1292(a)(1).
7
II.
As a threshold matter, the Government argues that its
action is not ‘‘final’’ within the meaning of section 704 of the
Administrative Procedure Act because the Secretary of De-
fense has yet to convey Fort Ritchie to PenMar. See 5
U.S.C. § 704. The standards for determining finality of
agency action are well-established. To be final, an action
need not be ‘‘the last administrative [action] contemplated by
the statutory scheme.’’ Envtl. Def. Fund, Inc. v. Ruckel-
shaus, 439 F.2d 584, 590 n.8 (D.C. Cir. 1971). Rather, the
question is whether the agency has ‘‘impose[d] an obligation,
denie[d] a right, or fixe[d] some legal relationshipTTTT’’ Mer-
edith v. Fed. Mine Safety and Health Review Comm’n, 177
F.3d 1042, 1047 (D.C. Cir. 1999) (internal quotation marks
and citation omitted).
Applying this standard, we have no doubt that the Govern-
ment’s action is final. By publishing the ROD, the Defense
Department obligated itself to convey the property to Pen-
Mar. See DBCRA § 2905(b)(7)(K)(iii). Base closure cases
that have found a lack of final agency action, e.g., Dalton v.
Specter, 511 U.S. 462 (1994), do not require a contrary result
since such cases addressed the Secretary of Defense’s non-
binding base closure recommendations to the President. In
any event, the Government’s action in this case would be final
and reviewable even if the ultimate disposition of Fort Ritchie
remained an open question since, according to the Govern-
ment, potential public benefit conveyees such as Role Models
had only until August 9, 1996, the deadline set in the May 10
newspaper notices, to apply for a conveyance. Role Models’
disqualification from seeking a public benefit conveyance after
that date constitutes ‘‘deni[al] [of] a right’’ for purposes of
APA review.
Turning to the merits, the Government argues that the two
identical May 10 notices fulfilled the LRA’s obligation to
notify ‘‘representatives of the homeless[ ] and other interested
parties’’ of the deadline for submitting notices of interest. 24
C.F.R. § 586.20(c)(1); 32 C.F.R. § 176.20(c)(1). We disagree.
We cannot imagine how Role Models, an organization devoted
8
to establishing schools for at-risk minors, could possibly have
interpreted a notice entitled ‘‘Homeless Assistance Outreach
Initiative’’ as an invitation to apply for the Fort Ritchie
property. Even if Role Models discounted the title, the
notice’s very first sentence informs readers that the LRA
would ‘‘receive Notices of Interest from representatives of
agencies that seek to serve the needs of our community’s
homeless population.’’ Reinforcing the message that the
LRA’s exclusive interest was in proposals to help the home-
less, the notice goes on to describe elements of a suitable
submission: ‘‘[proposals for] emergency shelters, TTT food
and clothing banks, treatment facilities or other activities that
meet homeless needs, TTT [and] a description of the extent to
which the program is or will be coordinated with other
homeless assistance programs in the communityTTTT’’ None
of these requirements could relate to a proposal from Role
Models to operate a school for at-risk students. The two
notices thus failed to fulfill the requirement that the LRA
‘‘shall [p]ublish’’ the time period in which it will receive
notices from ‘‘representatives of the homeless[ ] and other
interested parties.’’ 24 C.F.R. § 586.20(c)(1) (emphasis add-
ed); 32 C.F.R. § 176.20(c)(1) (emphasis added).
The Government argues that the Secretary’s May 10 and
May 15 notices, which unquestionably fulfilled the require-
ments of DBCRA section 2905(b)(7)(B)(i)(IV), performed dou-
ble-duty by also fulfilling the requirements of 24 C.F.R.
section 586.20(c)(1) and 32 C.F.R. section 176.20(c)(1). Again,
we disagree. The two notices announcing the surplus proper-
ty’s availability failed to fulfill the entirely different require-
ments that the regulations impose on the LRA — to inform
‘‘representatives of the homeless[ ] and other interested par-
ties’’ of the deadline for submitting notices of interest. Even
if Role Models had been so fluent in DBCRA arcana as to
realize that the surplus property announcement obligated the
LRA to collect notices of interest soon thereafter, it still
would not have known of the August 9 deadline. Contrary to
the implication of the Government’s argument, we think it
quite reasonable to assume that two distinct notice require-
ments obligating different parties to impart different informa-
9
tion are not redundant. Cf. Moskal v. United States, 498
U.S. 103, 109 (1990) (‘‘[A] court should ‘give effect, if possible,
to every clause and word of a statute.’ ’’) (citation omitted).
At oral argument, Government counsel insisted that the
regulations do not require the LRA to notify ‘‘other interest-
ed parties’’ despite language directing that the LRA ‘‘shall’’
inform ‘‘representatives of the homeless[ ] and other interest-
ed parties’’ of the deadline. 24 C.F.R. § 586.20(c)(1) (empha-
sis added); 32 C.F.R. § 176.20(c)(1) (emphasis added). Urg-
ing us to chalk this plain language up to ‘‘less than careful
draftsmanship,’’ counsel argued that a literal reading is in-
compatible with a subsequent regulation providing that ‘‘[i]n
addition [to the formal notice requirement], the LRA has the
option to conduct an informal solicitation of notices of inter-
est from [potential public benefit conveyees].’’ 24 C.F.R.
§ 586.20(c)(1)(i) (emphasis added); 32 C.F.R.§ 176.20(c)(1)(i)
(emphasis added). Even were this argument not untimely,
Tarpley v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982) (‘‘[O]ral
argument on appeal is not the proper time to advance new
arguments or legal theoriesTTTT’’), we would flatly reject it.
One provision requires that the LRA formally notify ‘‘repre-
sentatives of the homeless[ ] and other interested parties’’;
the other permits the LRA to ‘‘informal[ly]’’ notify the latter
group. Given the well-recognized flaws inherent in construc-
tive notice, see Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 315 (1950) (‘‘It would be idle to pretend that
publication alone TTT is a reliable means of [notification]’’
since ‘‘[c]hance alone brings to the attention of even a local
resident an advertisement in small type inserted in the back
pages of a newspaper.’’), it seems neither strange nor redun-
dant to provide for informal notice as a complement to a
scheme of formal notice through publication.
In sum, none of the Government’s arguments rebuts the
fact that potential public benefit conveyees such as Role
Models failed to receive the notice mandated by regulation.
Nor, in view of the Act’s overall structure, can we dismiss this
as a merely technical violation. The Secretary of Defense’s
obligations to (1) conduct public benefit conveyance screen-
ings and (2) accept only HUD-approved LRA redevelopment
10
proposals, taken together, guarantee that the Government
will consider all proposals submitted by public interest
groups. These procedural guarantees — checking the LRA’s
institutional inclination to develop surplus property commer-
cially — mean nothing if public interest groups do not know
of their right to submit proposals in the first place.
Role Models’ experience perfectly illustrates the need for
proper notice. The LRA’s procedural errors prevented Role
Models from triggering a public benefit conveyance screen-
ing, thereby depriving it of a valuable right under the Act.
Attempting to turn this error into a defense, the Government
argues that because ‘‘the LRA received no [timely] notice of
interest from [potential public benefit conveyees], TTT there
was no public benefit screening notice of interests to consid-
er.’’ Appellees’ Br. at 16. This makes no sense. Although
the Government is certainly correct that it could not have
screened notices of interest that it never received, here it
received none precisely because the LRA failed to give prop-
er notice.
The district court’s order is reversed and this matter
remanded with instructions to enter a permanent injunction
against conveyance of the Fort Ritchie property until the
Government remedies the procedural errors described above.
So ordered.