itself. This practice is reflected in nearly every document submitted by the parties involving the identification of suitable properties. For example, Secretary Pierce's initial letter on December 2 requested that agencies "submit listings of properties which meet the aforementioned [suitability] criteria." Pierce Letter, Attachment B to Bourne Declaration. The declaration submitted in this case by the HUD official responsible for implementing the McKinney Act confirms that this is HUD's practice: "HUD sent letters . . . requesting . . . a listing of [the agencies'] underutilized real property that would be suitable . . ." Bourne Declaration. The questionnaire HUD sent to further evaluate the suitability of the properties again required the controlling agencies to make that evaluation. The heart of the questionnaire is questions two and three, which ask whether the building is suitable as a shelter or for daytime activities, and why. Questionnaire from HUD, Attachment D to Bourne Declaration. The responses of the respective agencies confirm that the agencies, not HUD, made the suitability determination. The Navy, for example, was "unable to identify any facilities that would be suitable." Declaration of Steven Klienman, Director of Homeless Assistance Program, DOD. The VA, too, had "no available or suitable excess VA properties." Declaration of Dr. John Gronvall, Chief Medical Director, VA.
Neither the statute nor the legislative history explain why Congress chose to have HUD, not the agency heads, make the suitability determination.
Perhaps Congress expected that agencies would be reluctant to divest themselves of properties, and since the likely consequence of finding property suitable is the release of the property, selected HUD to make the determination. Perhaps Congress believed that having twenty-five agencies, rather than one, decide whether properties are suitable would lead to inconsistent determinations and not allow any one agency to develop expertise.
In any event, HUD is not free to ignore the statute's unequivocal command that it "shall" identify suitable properties. Amalgamated Transit Union Int'l v, Donovan, 247 U.S. App. D.C. 149, 767 F.2d 939, 944 (D.C. Cir. 1985), cert. denied, 475 U.S. 1046, 89 L. Ed. 2d 572, 106 S. Ct. 1262 (1986); Association of American R.R. v. Costle, 183 U.S. App. D.C. 362, 562 F.2d 1310, 1312 (D.C. Cir. 1977).
Plaintiffs argue that the defendants have not considered many federal properties that are not presently subject to a survey requirement. Defendants reply that the McKinney Act does not require new surveys; therefore, property that is not presently surveyed under some other provision of law is excluded from the Act's provisions. The Court agrees. The legislative history of the Act makes clear that section 501(a) refers only to surveys "conducted pursuant to existing law." H. Conf. Rep. No. 174, 100th Cong., 1st Sess., 85 (1987) (Stewart B. McKinney Homeless Assistance Act). The absence of appropriations to conduct surveys is further evidence that Congress intended that no new surveys be undertaken. Thus, only those properties which have been surveyed are subject to the Act.
Plaintiffs contend that the defendants have also failed to consider most of the properties which are surveyed. The defendants concede that many surveyed properties have been excluded from consideration, but argue that these properties are excluded from the McKinney Act by the statute governing property disposition, the Federal Property and Administrative Services Act of 1949 (FPASA). See 40 U.S.C. § 471 et seq. FPASA provides that agencies are to continuously survey
properties under their control to determine which are excess, and promptly report excess properties to the GSA. The GSA offers excess properties to other federal agencies, and if there is no federal use, the property is labeled surplus and may be disposed of in a number of ways, including by sale.
Id. § 484.
GSA contends that properties disposed of under FPASA are not affected by the McKinney Act.
See Lomax Declaration, para. 6 (underutilized properties are "unlike properties reported excess to GSA"). Defendants cite the following language in section 501(c) of the McKinney Act in support of their contention: HHS and GSA "shall, in accordance with other applicable federal law, take such actions as may be necessary to make buildings and property identified under subsection (a) available" to the homeless. 42 U.S.C. § 11411(c) (emphasis added). Defendants suggest that the underlined phrase excludes all properties from the Act that are subject to disposition under any other statute, including FPASA. That is an untenable interpretation, since virtually all federal property is subject to FPASA and therefore excluded from the McKinney Act. Although defendants have excluded many properties from consideration on this ground, they have not consistently adopted it. For example, many of the twelve properties already identified as suitable by the defendants apparently were also FPASA properties. Defendants also assert that the "underutilized" properties identified pursuant to the McKinney Act are not unused properties, and are not the same "excess" properties to be reported under FPASA. Although the McKinney Act does not define "underutilized" property, defendants contend that the Act incorporates the definition of that term contained in GSA regulations under FPASA. The regulations provide that "unneeded" (i.e., excess) property is that which is "not utilized," "underutilized," or "not being put to optimum use." 41 C.F.R. § 101-47.801(a) (1987). Defendants argue that by selecting the term "underutilized," Congress intentionally excluded "not utilized" property and property "not being put to optimum use."
As evidence that Congress had the GSA's regulatory definition in mind, defendants note that Congress was aware that property surveys are conducted pursuant to FPASA. See H. Conf. Rep. No. 174, 100th Cong., 1st Sess., p. 85 ("The conferees expect that controlling agency heads will carry out the surveys and related actions required under existing law, particularly section 202(b) of [FPASA] with vigor and with special awareness of the urgent need" to assist the homeless). However, this reference in the legislative history to surveys conducted pursuant to FPASA is woefully inadequate to support the contention that the narrow regulatory definition of underutilized was incorporated into the McKinney Act. The defendants' construction ignores the plain language of section 501, arbitrarily restricts the scope of the statute, and would lead to absurd results if it were actually applied.
Section 501 is designed to make surplus federal property available to assist the homeless; it is entitled "Identification and Use of Surplus Federal Property" (emphasis supplied). Subsection (d) refers to the lease of surplus property. Surplus property, under FPASA and by its ordinary definition, includes excess property. It does not exclude vacant, unused properties. Yet the defendants' interpretation of the statute excludes vacant -- "not utilized" -- properties. See 41 C.F.R. § 101-47.801(a)(1) (properties "not utilized" are those "not occupied"). It is extremely improbable that Congress deliberately chose "underutilized" with the FPASA regulations in mind. The regulations define "underutilized" as:
an entire property or portion thereof . . . used only at irregular periods or intermittently by the accountable executive agency . . . or . . . used for current program purposes that can be satisfied with only a portion of the property.