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NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY v. UNI

February 13, 1991

NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, et al., Plaintiffs, and NATIONAL UNION OF THE HOMELESS, et al., Intervenors,
v.
UNITED STATES VETERANS ADMINISTRATION, et al., Defendants



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 On December 14, 1988, this Court granted summary judgment and permanent injunctive relief for plaintiffs. National Coalition for the Homeless v. Veterans Administration, 695 F. Supp. 1226 (D.D.C. 1988) (" Permanent Injunction Decision "). Plaintiffs have now moved this Court for a further order enforcing the Court's permanent injunction of December 12, 1988, and remedying other violations of the Stewart B. McKinney Homeless Assistance Act.

 Specifically, plaintiffs seek an order from this Court directing: (i) that the Department of Housing and Urban Development ("HUD") canvass landholding agencies every quarter and report all unutilized, underutilized, excess, and surplus properties in their possession, regardless of whether the property had been previously reported; (ii) that HUD notify landholding agencies of suitability determinations within 72 hours from the time suitability determinations are made; (iii) that HUD revise its canvassing letter to clearly state that HUD, and not the responding landholding agency, is to make all suitability determinations; (iv) that HUD shall publish in the Federal Register lists of properties that are both suitable and available; (v) that the General Services Administration ("GSA") cease interfering with the efforts of homeless providers to acquire property; (vi) that the Department of Health and Human Services ("HHS") revise the requirements of its environmental questionnaire and develop criteria for excluding certain classes of applications from environmental review; (vii) that the defendants, in making environmental assessments, use information that is within their possession to the maximum extent possible; (viii) that HHS approve applicants that identify Title IV of the McKinney Act as a prospective source of funds; (ix) that defendants establish necessary and meaningful outreach programs; (x) that defendants modify their monthly reports to include lists of all canvassing letters sent during the month, all responses to canvassing letters, all notifications from HUD regarding the suitability of property reported to it, all determinations made by landholding agencies pursuant to Section 501(b) of the McKinney Act, all letters of intent submitted to HHS, and all requests for extension of time submitted to HHS.

 I. BACKGROUND

 A. McKinney Act

 In passing the McKinney Act, Congress found that the federal government "has a clear responsibility and an existing capacity" to help meet "an immediate and unprecedented crisis due to the lack of shelter for a growing number of individuals and families." 42 U.S.C. §§ 11301(a)(1), 11301(a)(6). Thus, as part of the McKinney Act, Section 501 (also known as Title V), codified at 42 U.S.C. § 11411, was enacted to provide a program for addressing what Congress found to be the greatest obstacle facing organizations providing help to the homeless -- "the lack of suitable buildings to serve as shelters." H.R. Rep. No. 10, 100th Cong., 1st Sess., pt. 1, at 17 (1987).

 Section 501 addresses this problem by establishing a procedure for making vacant federal properties available to assist the homeless. First, HUD collects information about properties that are described as unutilized or underutilized by the agency controlling the properties. 42 U.S.C. § 11411(a). After collecting the information, HUD must then determine which of the unutilized or underutilized properties "are suitable for use for facilities to assist the homeless." Id. After a property has been determined by HUD to be suitable, the controlling agency has thirty days to either (i) declare the property "excess" to the agency's need, (ii) make the property available for interim use, or (iii) provide a statement explaining why the property cannot be declared excess or made available on an interim basis. Id. § 11411(b).

 Once the property is declared "excess" to the agency's need, HHS and GSA "shall, in accordance with other federal law, take such action as may be necessary to make buildings and property . . ." available to organizations assisting the homeless. Id. § 11411(c). The Court has construed this language to mean that "excess" properties may, but need not be, offered to other federal agencies prior to being made available to assist the homeless. Permanent Injunction Decision at 25. Finally, "excess" properties are made available to homeless organizations through leases lasting at least one year. 42 U.S.C. § 11411(d)(1). Properties not designated as "excess," but which are available for interim use, may be made available either by a lease lasting at least one year or by a permit. Id. § 11411(d)(2).

 B. Permanent Injunction

 On December 14, 1988, this Court granted summary judgment and permanent injunctive relief for the plaintiffs. The Court found that the defendants had failed to comply with the requirements of the Act and that injunctive relief was necessary to "remedy past violations and prevent future violations." Permanent Injunction Decision at 19. Among the relief granted, the Court ordered (i) HUD to publish on a weekly basis a list of suitable properties in the Federal Register, (ii) the defendants to prevent suitable properties from becoming available for any other purpose for at least 30 days, (iii) HHS to complete its action on an application within 15 days of receiving a completed application, (iv) HUD to canvass all landholding agencies quarterly to collect information about unutilized or underutilized property, and (v) the defendants to publish monthly reports. *fn1" National Coalition for the Homeless v. Veterans Administration, 695 F. Supp. 1226 (D.D.C. 1988) ("Permanent Injunction").

 In addition, the Court's Permanent Injunction retained jurisdiction

 
for the purposes of enabling any of the parties to seek further orders or directions as may be necessary or appropriate for the construction or carrying out of this Decree, for the modification of any provision thereof, for the enforcement of compliance and punishment of violations thereof, and to determine the costs and attorneys' fees that may be recoverable by plaintiffs.

 Id. at 4.

 C. McKinney Act Amendments

 Since plaintiffs filed their motion for further injunctive relief, Congress has amended the McKinney Act. See Pub. L. No. 101-645 (to be codified at 42 U.S.C. § 11411 et seq.) ("1990 Amendments"). These amendments become effective on February 27, 1991. See 1990 Amendments, Section 401(b).

 The amendments codify much of the Court's Permanent Injunction with a few modifications to the procedures defendants are required to follow. The Court believes that the amendments will require the court to modify its Permanent Injunction so that it does not conflict with the 1990 Amendments. *fn2" Once the 1990 Amendments become effective, the Court will have the parties brief this issue.

 The defendants, at a status call on January 3, 1991, sought to have the Court stay its decision on the remaining issues. The defendants indicated that the remaining issues in plaintiffs' motion would be addressed in the regulations that are being promulgated pursuant to the 1990 Amendments. The defendants, however, have had over three years to issue regulations implementing the McKinney Act. Only now, when required by the 1990 Amendments, have the defendants begun to promulgate regulations. In addition, given the defendants' past pattern of delay in implementing the requirements of the McKinney Act, the Court is unconvinced that the issues raised in this motion will be promptly resolved by the defendants. The Court, therefore, will not stay its decision until the defendants have promulgated regulations.

 In reaching its decision on the relief that is requested by plaintiffs, the Court is mindful, however, not to become too involved in the details that are properly the domain of the defendant agencies. The Court simply seeks to have defendants fulfill their statutory obligations to take whatever actions are necessary to make excess properties available to the homeless. Thus, where possible, the Court will seek to delineate the defendants' obligations under the McKinney Act, leaving the details for the defendants to resolve within the administrative process.

 II. FACTS

 The complete failure of defendants to comply with the requirements of the McKinney Act, which resulted in the Court granting permanent injunctive relief for the plaintiffs, is set out in the Court's prior decisions, and need not be repeated here. See National Coalition for the Homeless v. Veterans Administration, 695 F. Supp. 1226, 1227-29 (D.D.C. 1988); Permanent Injunction Decision, at 10-15. The defendants, however, now contend that they have remedied their prior deficiencies. In their brief, they state that plaintiffs' evidence supporting a modification of the Permanent Injunction is based on "isolated, anecdotal and largely stale facts." Defendants' Opposition at 1.

 The evidence of how well the process is presently working is set out in plaintiffs' brief and is not contested by the defendants. Plaintiffs indicate that a total of 3,382 properties have been determined to be suitable for use by the homeless. Plaintiffs' Memorandum at 2. Between July 1988 to February 1990, 522 inquiries were made regarding the use of these properties. Id. Of these inquiries, 22 resulted in property actually being made available to the homeless. Id.

 The above evidence indicates an improvement since the Court's decision to issue a Permanent Injunction. At that time, only four properties had been made available to assist the homeless, and only two properties were actually being used to assist the homeless. Permanent Injunction Decision at 11.

 However, despite this improvement, the Court concludes that several deficiencies in the defendants' implementation of the McKinney Act have continued to thwart Congress' desire to make federal properties available to assist the homeless. Specifically, the Court finds (i) that HUD's canvassing procedure is not in accordance with the Court's Permanent Injunction; (ii) that the defendants have failed to assist applicants in providing the information that is requested on environmental questionnaires; (iii) that HHS has improperly placed financial restrictions on homeless providers; and (iv) that the defendants' failure to implement an outreach program to publicize available properties continues to hamper the effectiveness of the McKinney Act.

 For each of the above findings, the factual basis and the specific relief provided by the Court is described in the Discussion Section of this memorandum.

 A. Authority to Order Further Injunctive Relief

 A court has the authority to issue further orders to enforce its prior injunction. Hutto v. Finney, 437 U.S. 678, 687, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). In making such a decision, a court may take into account the compliance with the court's previous orders and the need for a further order to prevent "inadequate compliance" in the future. Id. As with the initial injunction, however, an order granting further injunctive relief must also be "narrowly tailored to remedy the specific harm shown." Aviation Consumer Action Project v. Washburn, 175 U.S. App. D.C. 273, 535 F.2d 101, 108 (1976).

 The defendants do not dispute the Court's authority to order further injunctive relief. Instead, the defendants contend that they have been complying with the requirements of the McKinney Act and this Court's Permanent Injunction. Defendants' Opposition at 1. Therefore, the defendants assert that no modification of the Court's previous order is necessary, with the exception of the one area where they agree that a modification would be beneficial, ...


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