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February 9, 1979

GLOBE, INC., T/A Globe Book Shops et al., Plaintiffs,

The opinion of the court was delivered by: OBERDORFER


This case is before the Court on cross-motions for summary judgment. For the reasons set out in this Memorandum, the Court grants in part and denies in part plaintiffs' motion for summary judgment and denies defendants' motion for summary judgment.

 I. Findings of Fact

 1. Globe, Inc. (Globe) is a corporation engaged in the business of selling books at retail in the Metropolitan Washington area. It operates stores at, among other places, 1700 Pennsylvania Avenue, N.W., and 888 17th Street, N.W. in the District of Columbia.

 2. Crown Book Corporation (Crown) is a wholly-owned subsidiary of Dart Drug, Inc., and is also engaged in the business of selling books, magazines, and related items at retail in this area.

 3. The Federal Home Loan Bank Board (FHLBB) is an independent agency in the Executive Branch of the United States Government, with quarters at 1700 G Street, N.W. FHLBB was created by and operates under the authority of the Federal Home Loan Bank Act of 1932, as amended directly by statute and indirectly, from time to time, by riders in appropriations, E. g., Public Law 93-414, 88 Stat. 1095, 1107, September 6, 1974.

 4. Congress created FHLBB in 1932

"both as a present emergency relief of and as a permanent aid to . . . home-building, home-improving, and home-financing organizations of our country."

 Statement of Representative John H. Overton, 75 Cong.Rec. 12603, 72d Cong., 1st Sess. (1932). See also, Association of Data Processing, Etc. v. Federal Home Loan Bank Board of Cincinnati, 421 F. Supp. 384, 389-390 (S.D.Ohio, 1976).

 5. General Services Administration is an agency in the Executive Branch of the United States Government headed by an Administrator. 40 U.S.C. § 751(a) and (b). Congress has provided generally that:

"No public building shall be constructed except by the Administrator, who shall construct such public building in accordance with this chapter." 40 U.S.C. § 601.

 6. The Administrator's authority to construct or acquire buildings is subject to prior approval by the Committee on Public Works of the Senate and House of Representatives. 40 U.S.C. § 606(a). As a requisite to such approval, the Administrator is required to:

"transmit to Congress a prospectus of the proposed project . . . "

 7. With respect to construction or alteration of buildings in the District of Columbia, Congress has directed the Administrator to proceed

"as nearly as may be practicable in harmony with the plan of Peter Charles L'Enfant and such buildings shall be so constructed as to combine architectural beauty with practical utility."

 40 U.S.C. § 607(a).

 8. Congress has authorized the Administrator to delegate to executive agencies, as that term is defined,

"The performance, in accordance with standards established by the Administrator . . . of the responsibilities and authorities vested in him . . . where the Administrator determines that such delegation will promote efficiency and economy."

 40 U.S.C. § 614.

 9. FHLBB has not offered any evidence that the Administrator has delegated any of his powers to FHLBB pursuant to 40 U.S.C. § 614.

 10. In 1976, Congress amended the laws governing the Administrator's responsibility for public buildings to require him to encourage the location of commercial, cultural, educational and recreational facilities and activities within public buildings. Public Buildings Cooperative Use Act of 1976 (Public Law 94-541). Section 104 of the 1976 Act specifically authorized him to lease certain space in public buildings to tenants who would use it for those purposes. The 1976 law limited this authorization to the Administrator. It did not refer to FHLBB or authorize it to lease out its space commercially. Nor did it authorize "concession agreements."

 11. The Federal Home Loan Bank Act of 1932 did not authorize the FHLBB to own or lease real property for its quarters. Nor did it authorize FHLBB to grant or otherwise operate "concessions."

 12. In 1966, Congress enacted a new subsection to the 1932 Act relating to quarters and facilities for FHLBB itself. Pub.L. 89-754, § 1016(b)(2), 80 Stat. 1293, 12 U.S.C. § 1438(c). That legislation provided that

"The board, Utilizing the services of the Administrator of General Services (hereinafter referred to as the "Administrator"), and Subject to any Limitation hereon which may hereafter be Imposed in appropriation Acts, is hereby authorized
(A) To acquire, in the name of the United States, real property in the District of Columbia, for the purposes set forth in this subsection;
(B) to construct, develop, furnish, and equip such buildings thereon and such facilities as in its judgment may be appropriate to provide, to such extent as the board may deem advisable, suitable and adequate quarters and facilities for the board and the agencies under its administration or supervision;
(C) to enlarge, remodel or reconstruct any of the same; and
(D) to make or enter into contracts for any of the foregoing." (emphasis added)

 12 U.S.C. § 1438(c)(1).

 Paragraph (2) of the 1966 subsection authorized FHLBB to require of its constituent banks "advances of funds for the purposes set out in paragraph (1)." 12 U.S.C. § 1438(c)(2).

 Paragraph (3) made the plans and design of any building to be constructed pursuant to paragraph (1) subject to the approval of the Chairman of FHLBB to such extent as he might request. 12 U.S.C. § 1438(c)(3).

 13. In the context of the foregoing, paragraph (4) of the 1966 subsection provided that:

"Upon the making of arrangements mutually agreeable to the board and the Administrator, which arrangements may be modified from time to time by mutual agreement between them . . ., the Custody, management, and control of such buildings and facilities and of such real property Shall be vested in the Administrator in accordance therewith. Until the making of such arrangements such custody, management, and control, including the assignment and allotment . . . of building and other space, Shall be vested in the board." (emphasis added)

 12 U.S.C. § 1438(c)(4).

 14. The 1966 Act makes no explicit provision for third parties to lease any of the properties acquired by FHLBB for its quarters. Nor does the 1966 Act provide for the granting of "concessions" to anyone.

 15. Public Law 93-414, appropriating funds for fiscal year 1975, amended 12 U.S.C. § 1438(c) to authorize FHLBB to require additional assessments from its constituent banks for purposes "which shall include related commercial facilities." This rider made no reference to the division of responsibility for FHLBB quarters as between FHLBB and GSA.

 16. In 1976, GSA and FHLBB entered into a "Memorandum of Agreement on New Federal Home Loan Bank Building." The stated purpose of the Memorandum of Agreement was to set forth the respective obligations of GSA and FHLBB concerning construction of the building. The Memorandum of Agreement recited that, pursuant to the authority of 12 U.S.C. § 1438(c),

"(T)he services of GSA have been utilized to acquire real estate for construction thereon of the building . . . . The services of GSA shall continue to be utilized to manage the FHLBB building ...

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