United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2005 Decided June 17, 2005
No. 03-5369
SENIOR RESOURCES,
APPELLANT
BARBARA BARLOW, SAN ANTONIO, TX, ET AL .,
APPELLEES
v.
ALPHONSO JACKSON, SECRETARY,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00983)
Gary M. Hnath argued the cause for the appellant. John F.
Cooney was on brief.
Marina Utgoff Braswell, Assistant United States Attorney,
argued the cause for the federal appellee. Kenneth L. Wainstein,
United States Attorney, and Michael J. Ryan, Assistant United
States Attorney, were on brief. R. Craig Lawrence, Assistant
United States Attorney, entered an appearance. Brian M. Privor
2
argued the cause for appellee Greater Kelly Development
Authority. Peter Buscemi was on brief. Mark A. Srere entered
an appearance.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: This case arises
from the 1995 closure of Kelly Air Force Base (Kelly AFB) in
San Antonio, Texas. Senior Resources, a Texas-based non-
profit charitable and educational organization, filed suit
contesting the planned conveyance of Kelly AFB property under
the Defense Base Closure and Realignment Act and its
amendments. 10 U.S.C. § 2687 note §§ 2901 et seq. (Base
Closure Act or DBCRA). Senior Resources’ complaint asserted
seven constitutional and statutory claims against the Secretaries
of the Departments of Housing and Urban Development (HUD),
Defense (DOD) and the Air Force (Federal Appellees) for their
roles in approving the Kelly AFB redevelopment plan. The
district court permitted the Greater Kelly Development
Authority (GKDA), a body created to oversee the distribution of
Kelly’s surplus property, to intervene as a defendant. Only the
district court’s grant of summary judgment to the Federal
Appellees on Senior Resources’ claim under the Administrative
Procedure Act (APA), 5 U.S.C. §§ 701–706, is before us on
appeal. Because we find that the Federal Appellees acted
properly under both the Base Closure Act and the APA, we
affirm the judgment of the district court.
I. STATUTORY BACKGROUND
After the decision to close or realign a military base is
finalized, the distribution of the base’s real and personal
property and facilities to private or local government entities is
controlled by the Base Closure Act. The Base Closure Act
requires the DOD to recognize “[a]s soon as practicable” a Local
Redevelopment Authority (LRA) to oversee the formulation of
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a redevelopment plan and the conveyance of property. 24
C.F.R. § 586.20(a). See also 10 U.S.C. §2687 note § 2905(b);
24 C.F.R. § 586.5. Once the LRA is recognized, the DOD
Secretary determines what base property remains useful either
to the military or to another federal agency and designates the
property that does not serve a continuing military or federal use
as “excess property or surplus property.” 10 U.S.C. § 2687 note
§ 2905(b)(7)(B)(i). The LRA then publicizes the available
property and consults with a variety of community groups to
draft a redevelopment plan intended to mitigate the economic
dislocation caused by the base closing. Id. note § 2905(b)(7)(C).
Community groups such as “[s]tate and local governments,
representatives of the homeless, and other interested parties”
with a development proposal for a particular piece of surplus
property submit a “notice of interest” (NOI) to the LRA that
describes the applicant’s “need” for the property. Id. note §
2905(b)(7)(C)(i).
Representatives of the homeless (ROHs) are given a semi-
privileged status under the Base Closure Act.1 The LRA is
obligated to “consult with representatives of the homeless …
and undertake outreach efforts to provide information on the
buildings and property to representatives of the homeless.”
1
We note that the status of ROHs under the Base Closure Act is less
privileged than in the past. Before the 1994 amendments to the
DBCRA, surplus government property was allocated according to the
McKinney Act, 42 U.S.C. §§ 11301 et seq., which gave homeless
assistance organizations priority status. 42 U.S.C. §§ 11411–12. The
Base Closure Community Redevelopment and Homeless Assistance
Act of 1994, Pub. L. No. 103-421, 108 Stat. 4346 (1994) (codified at
10 U.S.C. § 2687, note §§ 2901–2914), amended the DBCRA to
permit the LRA to balance the community’s competing interests in
encouraging economic redevelopment and providing for the needs of
the homeless, no longer automatically granting priority to homeless
assistance organizations. See 140 Cong. Rec. S14457, S14461 (daily
ed. Oct. 6, 1994) (statements of Sen. Pryor and Sen. Dole).
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Id.note § 2905(b)(7)(C)(iii)(I)-(II). The Base Closure Act
provides guidance to ROHs regarding the information to be
included in an NOI and to the LRA regarding the evaluation of
the NOI. A Notice of Interest is to include:
(I) A description of the homeless
assistance program that the representative
proposes to carry out at the installation.
(II) An assessment of the need for the
program.
(III) A description of the extent to which
the program is or will be coordinated with
other homeless assistance programs in the
communities in the vicinity of the
installation.
(IV) A description of the buildings and
property at the installation that are
necessary in order to carry out the
program.
(V) A description of the financial plan,
the organization, and the organizational
capacity of the representative to carry out
the program.
(VI) An assessment of the time required
in order to commence carrying out the
program.
10 U.S.C. § 2687 note § 2905(b)(7)(E)(i). The LRA is
instructed to “consider the interests in the use to assist the
homeless of the buildings and property at the installation that are
expressed in the notices submitted to the redevelopment
authority.” Id. note § 2905(b)(7)(F)(i). After completing the
redevelopment plan, the LRA must submit a copy of the plan
both to HUD and to the DOD. Id. note § 2905(b)(7)(G)(i). The
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LRA’s submission must include, inter alia, “[a]n assessment of
the manner in which the redevelopment plan balances the
expressed needs of the homeless and the need of the
communities in the vicinity of the installation for economic
redevelopment and other development.” Id. note
§ 2905(b)(7)(G)(ii)(V).
After the LRA submits the redevelopment plan to the agencies
for approval, the HUD Secretary reviews and approves the plan.
Id. note § 2905(b)(7)(H)(i). The Secretary must
determine whether the plan, with respect
to the expressed interest and requests of
representatives of the homeless –
(I) takes into consideration the size and
nature of the homeless population in the
communities in the vicinity of the
installation, the availability of existing
services in such communities to meet the
needs of the homeless in such
communities, and the suitability of the
buildings and property covered by the
plan for the use and needs of the homeless
in such communities;
(II) takes into consideration any economic
impact of the homeless assistance under
the plan on the communities in the
vicinity of the installation;
(III) balances in an appropriate manner
the needs of the communities in the
vicinity of the installation for economic
redevelopment and other development
with the needs of the homeless in such
communities;
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(IV) was developed in consultation with
representatives of the homeless and the
homeless assistance planning boards, if
any, in the communities in the vicinity of
the installation; and
(V) specifies the manner in which
buildings and property, resources, and
assistance on or off the installation will be
made available for homeless assistance
purposes.
Id. In addition, the Secretary must “be receptive to the
predominant views on the plan of the communities in the
vicinity of the installation covered by the plan.” Id. note §
2905(b)(7)(H)(ii). If he finds that the proposed redevelopment
plan fails to meet the statutory requirements, he must explain the
plan’s deficiencies and provide the LRA ninety days to cure
them. Id. note § 2905(b)(7)(H)(v), (b)(7)(I); 24 C.F.R.
§ 586.35(c)-(d). If the plan is approved, the DOD is required to
dispose of the surplus property in accordance with the plan. 10
U.S.C. § 2905(b)(7)(K)(i); 24 C.F.R. § 586.45(c).
II. FACTUAL AND PROCEDURAL BACKGROUND
In 1995, the Defense Base Closure and Realignment
Commission designated a substantial portion of Kelly Air Force
Base to be closed and realigned under the DBCRA. The
complex contained nearly 1,300 acres of land and 500 buildings,
including housing, rental units, office, commercial and industrial
space totaling roughly 12 million square feet. The Greater Kelly
Development Authority was formed to serve as the LRA for the
redevelopment of the facilities and property. 2 The GKDA, in
2
The Greater Kelly Development Authority (GKDA) is the successor
in interest to the Greater Kelly Development Corporation (GKDC).
Like the district court, we use “GKDA” to refer to both the GKDC and
the GKDA.
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turn, formed a citizens advisory panel to review the submitted
NOIs and to make recommendations. Senior Resources
submitted its initial NOI as a representative of the homeless in
September 1996. The GKDA, however, tabled Senior
Resources’ NOI because the advisory panel determined that
Senior Resources did not qualify for ROH status under the Base
Closure Act due to its inexperience in serving the homeless.
The GKDA submitted a redevelopment plan for HUD’s
approval that did not include Senior Resources’ NOI. HUD
approved the plan in June 1997. Senior Resources then brought
suit to enjoin the implementation of the plan. See Senior
Resources v. Cuomo, No. 97-1445 (D.D.C. May 4, 1998). The
district court determined that the GKDA had improperly rejected
Senior Resources’ NOI and remanded the case to HUD for
further action. Id. at 16.
In response, HUD withdrew its approval of the plan and
instructed the GKDA to reconsider the NOIs submitted by
Senior Resources and other representatives of the homeless. In
particular, HUD recommended that the GKDA publicize the
criteria by which it planned to evaluate the submissions. On
remand, the GKDA issued a statement of the evaluation criteria
it intended to use with respect to NOIs submitted by
representatives of the homeless, including the following:
Consideration of the skills and knowledge
of the organization’s personnel to carry
out the proposed program, the history of
the organization in running similar
programs, the plausibility of the
organization’s ability to generate the
funding required to maintain the program,
and the extent to which there are firm
commitments from other organizations or
people to ensure the program will
succeed.
8
GKDA Memorandum Re: Evaluation Criteria Clarification
(Aug. 14, 1998). According to the GKDA, these criteria were
intended to fulfill the statutory mandate to consider the
“description of the financial plan, the organization, and the
organizational capacity of the representative to carry out the
program.” 10 U.S.C. § 2687 note § 2905(b)(7)(E)(i)(V).
Senior Resources resubmitted its NOI as did eight other
homeless assistance organizations. Of those, three eventually
withdrew their applications. Senior Resources’ proposal was
elaborate, requiring 344,970 square feet of warehouse space in
nine buildings, along with fifteen housing units, 53.1 acres of
land and some personal property. 3 Its NOI described two
programs to make use of the requested property: the Homeless
Opportunities Program for Employment (HOPE), to provide
education, shelter, social services and job training; and the
Homeless Occupational Manufacturing Enterprise (HOME), to
transform part of the property into a facility to manufacture
modular homes. Senior Resources’ proposal required
substantial financial investment; the HOME project entailed an
estimated $1.5 million in start-up costs alone. After reviewing
each NOI, the citizens advisory panel recommended granting the
requests of 4 of the other 5 ROHs (with some modifications) but
rejected Senior Resources’ NOI. The panel found that, given the
complexity of its proposal, Senior Resources lacked both the
necessary experience and financing. In addition, it found that
Senior Resources had provided insufficient detail regarding
financing, a business plan and its organizational capacity. The
GKDA followed the panel’s recommendation.
The GKDA then resubmitted its master redevelopment plan
for HUD’s approval in December 1998. HUD did not
immediately approve the plan. Instead, on February 1, 1999,
3
The other five organizations combined requested roughly 75,000
square feet of office or warehouse spac e in addition to personal
property.
9
HUD directed the GKDA to provide more detail regarding its
decision balancing the “needs of the community” with those of
the homeless. Ltr. from F. Karnas, HUD, to P. Roberson,
GKDA (Feb. 1, 1999) (citing 24 C.F.R. § 586.30(b)(4)(ii)) at 2.
After the GKDA amended the plan to comply with HUD’s
request, HUD temporarily suspended its review and instructed
the GKDA to negotiate with Senior Resources. After several
months, the negotiations proved unsuccessful and on April 18,
2001 HUD issued its formal approval of the redevelopment plan,
stating that “with respect to the expressed interests and requests
of the ROHs, [GKDA’s plan] appropriately balances the relative
needs for economic redevelopment and homeless assistance.”
HUD specifically noted Senior Resources’ lack of guaranteed
funding for its project in approving the GKDA’s decision to
deny Senior Resources’ NOI.
On May 9, 1999, Senior Resources filed suit and moved for
preliminary injunctive relief to enjoin the distribution of the
Kelly AFB property. The district court denied the requested
relief, finding Senior Resources unlikely to succeed on the
merits. Senior Resources v. Martinez, No. 01-0983 (D.D.C.
May 31, 2001). Nevertheless, the parties agreed not to distribute
the surplus property pending judicial resolution of the dispute.
On October 20, 2003, the district court granted summary
judgment to the defendants. It held that the GDKA had
employed appropriate selection criteria in evaluating the NOIs
and that HUD’s approval of the redevelopment plan was
consistent with the statutory requirements of the Base Closure
Act and the APA. Senior Resources timely filed a notice of
appeal.
III. ANALYSIS
We review a district court’s review of agency action de novo,
Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir.
2002), and will uphold agency action unless it is shown to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in
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accordance with law.” 5 U.S.C. § 706(2)(A). Senior Resources
asserts two errors on appeal: first, that the district court
misinterpreted the Base Closure Act by not requiring HUD to
perform an independent assessment of the needs of the San
Antonio area’s homeless population before approving the
GKDA’s redevelopment plan; and second, that HUD’s approval
of the redevelopment plan was arbitrary and capricious because
the GKDA employed criteria in addition to those listed in the
DBCRA in evaluating the NOIs submitted by representatives of
the homeless. Neither of Senior Resources’ arguments
withstands scrutiny.
The district court found that Senior Resources’ argument that
“HUD should have conducted an independent evaluation of the
needs of the homeless” is “not supported by the language of the
Base Closure Act itself.” We agree. The DBCRA requires
HUD to:
determine whether the plan, with respect
to the expressed interest and requests of
representatives of the homeless –
(I) takes into consideration the size and
nature of the homeless population in the
communities in the vicinity of the
installation, the availability of existing
services in such communities to meet the
needs of the homeless in such
communities, and the suitability of the
buildings and property covered by the
plan for the use and needs of the homeless
in such communities;
(II) takes into consideration any economic
impact of the homeless assistance under
the plan on the communities in the
vicinity of the installation;
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(III) balances in an appropriate manner
the needs of the communities in the
vicinity of the installation for economic
redevelopment and other development
with the needs of the homeless in such
communities;
(IV) was developed in consultation with
representatives of the homeless and the
homeless assistance planning boards, if
any, in the communities in the vicinity of
the installation; and
(V) specifies the manner in which
buildings and property, resources, and
assistance on or off the installation will be
made available for homeless assistance
purposes.
10 U.S.C. § 2687 note § 2905(b)(7)(H)(i). In contrast to the
detailed description of the factors HUD is required to evaluate,
the DBCRA does not specify the manner in which HUD is to
carry out this review, much less require that HUD independently
verify the accuracy of the NOIs submitted by representatives of
the homeless. The DBCRA commands HUD to review the plan
“with respect to the expressed interest and requests of
representatives of the homeless.” Id. (emphasis added). If the
term “expressed” is to retain any meaning within the statutory
framework, it must refer to the material included in the ROHs’
NOIs. Requiring HUD to evaluate the plan based on its own
assessment of the conditions of the homeless, as Senior
Resources advocates, rather than the NOIs, would read the term
“expressed” out of the statute—a result contrary to basic
principles of statutory interpretation. See Hibbs v. Winn, 124 S.
Ct. 2276, 2285–86 (2004) (“[A] statute should be construed so
that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” (quoting 2A
12
N. Singer, Statutes and Statutory Construction § 46.06, pp. 181-
186 (rev. 6th ed. 2000))).
The Base Closure Act instead gives HUD a good deal of
discretion: HUD is to ensure that the plan “takes into
consideration” and “balances in an appropriate manner” the
“expressed interest” of the homeless. 10 U.S.C. § 2687 note §
2905(b)(7)(H)(i). The record is clear that HUD met its statutory
burden. As part of its redevelopment plan, the GKDA submitted
an extensive “homeless assistance submission” that examined in
detail the submission of each ROH and explained the rationale
behind its decision to accommodate or reject each NOI. HUD
went out of its way to ensure adequate consultation between the
GKDA and Senior Resources, suspending its approval process
for several months to permit further negotiations between the
two. Moreover, HUD discussed the balance between the need
for job creation and the need to assist the homeless extensively
in its approval, devoting eight pages to the topic generally, one
and one-half pages of which is directed to Senior Resources’
NOI alone. Specifically, HUD found that “Senior Resources
failed to demonstrate … that there was some assurance to
believe that this organization was capable of implementing,
managing and producing the claimed results … to justify the
commitment of the extensive resources to its venture.”
Memorandum of Decision, Kelly AFB, San Antonio, TX (Apr.
18, 2001) at 7. In light of the DBCRA’s broad language, we
cannot view HUD’s approval of the balance the GKDA struck
between economic development and the needs of the homeless
as arbitrary or capricious under the APA. 5 U.S.C. § 706(2)(A).
Nor does the GKDA’s publication of detailed criteria it
planned to use to evaluate ROHs’ submissions undermine
HUD’s approval. The Base Closure Act requires any NOI filed
by a ROH to contain “[a ]description of the financial plan, the
organization, and the organizational capacity of the
representative [of the homeless] to carry out the program.” 10
13
U.S.C. § 2687 note § 2905(b)(7)(E)(i)(V). During the planning
process, the GKDA announced that it intended to evaluate a NOI
according to the following criteria:
Consideration of the skills and knowledge
of the organization’s personnel to carry
out the proposed program, the history of
the organization in running similar
programs, the plausibility of the
organization’s ability to generate the
funding required to maintain the program,
and the extent to which there are firm
commitments from other organizations or
people to ensure the program will
succeed.
Memorandum from the GKDA to ROHs (Aug. 14, 1998).
Senior Resources contends that these criteria exceed the
GKDA’s statutory authority and therefore HUD’s approval of
the redevelopment plan that applied the criteria in allocating
resources was arbitrary and capricious. Yet the GKDA’s criteria
hardly differ from the Base Closure Act’s. The DBCRA
requires an ROH to submit a “financial plan,” 10 U.S.C. § 2687
note § 2905(b)(7)(E)(i)(V), and the GKDA’s criteria merely
address the ROH’s ability to “generate” the necessary funding.
The same holds true for the criteria related to organizational
strength. The GKDA’s evaluation of organizational capacity
using the ROH’s past success and the capacity of its current
employees fits squarely within the statutory scheme. Id. Thus,
the specific criteria employed by the GKDA in evaluating an
ROH’s notice of interest provide no basis for overturning
HUD’s approval of the redevelopment plan for Kelly AFB.
For the foregoing reasons, the district court’s grant of
summary judgment to the defendants is affirmed.
So ordered.
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