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NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY v. UNI

April 21, 1993

NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, et al., Plaintiffs,
v.
UNITED STATES VETERANS ADMINISTRATION, et al., Defendants.



The opinion of the court was delivered by: OLIVER GASCH

 This matter is before the Court on plaintiffs' motion to modify and further enforce the permanent injunction which this Court issued on December 15, 1988, and defendants' response thereto. The permanent injunction ordered defendants to comply with section 501 of the Stewart B. McKinney Homeless Assistance Act, codified at 42 U.S.C. § 11411, which requires defendants to make vacant federal properties available to assist the homeless. This Court has further enforced the injunction on two occasions. See National Law Center on Homelessness and Poverty v. United States Veterans Admin., 765 F. Supp. 1 (D.D.C. 1991); id. at 13 (on defendants' motion to alter or amend). While these enforcement decisions were pending, Congress passed the Stewart B. McKinney Homeless Assistance Amendments Act of 1990, Pub. L. No. 101-645, § 401, 104 Stat. 4719 (1990), which modified the procedure by which defendants make properties available to homeless providers. Plaintiffs now ask the Court to order further injunctive relief and to modify the permanent injunction consistent with the recent amendments. Plaintiffs' proposed modifications are set forth in a Proposed Order. Defendants object to paragraphs 2, 3, 4, 6, 10, 14, 15, 16 and 17 of plaintiffs' Proposed Order. *fn1" The Court will address each of the contested proposed modifications in turn.

 1. Comprehensive Quarterly Canvassing (Proposed Order P 2)

 The 1990 Amendments to the McKinney Act provide, in pertinent part, that

 
the Secretary of Housing and Urban Development ["HUD"] shall, on a quarterly basis, request information from each landholding agency regarding Federal public buildings and other Federal real properties (including fixtures) that are excess property or surplus property or that are described as unutilized or underutilized in surveys by the heads of landholding agencies under section 483(b)(2) of Title 40 [The Federal Property and Administrative Services Act of 1949].

 42 U.S.C. § 11411(a) (1990). Defendants contend that each quarterly canvass should be supplemental rather than comprehensive i.e., HUD should be required to report only those excess, surplus, unutilized or underutilized properties which have changed in status or classification since the last quarter. Plaintiffs maintain that comprehensive quarterly canvassing is required. However, in an effort to accommodate defendants, plaintiffs have proposed comprehensive quarterly canvassing in the first and third quarters only.

 The question whether HUD's quarterly canvass must be comprehensive or supplemental is not new to this Court. Indeed, the same arguments advanced in the motion sub judice were presented to the Court when it was asked to interpret and further enforce its permanent injunction. See National Law Center on Homelessness and Poverty v. United States Veterans Admin., 765 F. Supp. at 6-7. There, this Court found "that its Permanent Injunction requires the government to perform a comprehensive canvass every quarter. The language of the injunction could not be more clear--HUD shall 'canvass all land-holding agencies quarterly'." Id. at 6. *fn2"

 Although the statutory language does vary slightly from the language of this Court's permanent injunction (compare 42 U.S.C. § 11411(a), supra, with footnote 2), the plain meaning has not changed. The only possibly relevant distinction between this Court's permanent injunction and the statutory language is the latter's reference to "each landholding agency" as opposed to "all landholding agencies." But this distinction is an insufficient basis for this Court to conclude that Congress intended supplemental quarterly canvassing rather than comprehensive canvassing. If Congress had intended supplemental quarterly canvassing, it would have said so.

 Nevertheless, the Court is mindful that the comprehensive quarterly canvassing requirement has been a constant source of complaint. Defendants contend that the comprehensive quarterly canvassing requirement frustrates the efforts of the General Service Administration ("GSA") to dispose of surplus property, as required by the Federal Property and Administrative Services Act of 1949, 40 U.S.C. § 484 (1984). *fn3" Although plaintiffs continue to believe that defendants' argument for supplemental canvassing lacks merit, they have proposed a compromise.

 Plaintiffs propose comprehensive canvassing in the first and third quarters, and supplemental canvassing in the second and fourth quarters. See Proposed Order at P 2. Under this scheme, defendants need only report, in the second and fourth quarters, property not identified in the prior quarter's canvass, or property that was included but has changed in status. The Court finds that plaintiffs' proposal is a reasonable one. Clearly, defendants' argument for supplemental canvassing in every quarter is contrary to the plain meaning of the statute and this Court's prior interpretation of the permanent injunction. However, the Court is reluctant to require comprehensive canvassing in every quarter if the parties agree that comprehensive canvassing in each alternative quarter will achieve the same end, namely, to make homeless providers aware of suitable, available federal properties. In short, plaintiffs have proposed a fair and reasonable via media, and the Court will adopt P 2 of the Proposed Order.

 2. Reporting Back to HUD (Proposed Order P 4) *fn4"

 The 1990 Amendments further provide:

 
No later than 25 days after receiving a request [from HUD for information on excess, surplus, unutilized or underutilized properties], the head of each landholding agency shall transmit such information to [HUD].

 42 U.S.C. § 11411(a). Defendants argue that plaintiffs' proposed P 4 should be rejected because there is no evidence that non-party land-holding agencies have violated their duties under section 501 of the McKinney Act. What defendants have failed to realize, however, is that "each" federal land-holding agency has a statutory duty to report back to HUD within a certain time period. Because plaintiffs' proposed modification is virtually identical to the above-quoted statutory language, proposed P 4 will be adopted in full.

 3. Publication in the Federal Register (Proposed Order P 6)

 The permanent injunction requires HUD to publish a list of suitable properties in the Federal Register on a weekly basis. Since the date of the issuance of the permanent injunction, it has become clear that it would be more beneficial to homeless providers if HUD were to publish only those properties that are both suitable and available. See National Law Center on Homelessness and Poverty v. United States Veterans Admin., 765 F. Supp. at 7-8. Moreover, the 1990 Amendments specifically require HUD to indicate which properties are available for use by the homeless. 42 U.S.C. § 11411(c)(1)(A)(ii). Thus, consistent with the 1990 Amendments, the Court will modify its injunction to the extent that BUD must report only those properties that are both suitable and available.

 Question has also been raised whether the Court should continue to require HUD to publish in the Federal Register on a weekly basis. Defendants argue that the 1990 Amendments require quarterly publication. Notwithstanding this argument, defendants appear willing to continue to publish on a weekly basis. In any event, plaintiffs do not insist on weekly publication, but have indicated their support for a compromise which would allow for weekly publication but would require a minimum of monthly publication. See Plaintiffs' Reply To Defendants' Response To Plaintiffs' Motion To Modify And Further Enforce The Permanent Injunction ("Plaintiffs' Reply") at 12.

 The Court will adopt plaintiffs' recommendation of monthly publication. Contrary to defendants' argument, the 1990 Amendments do not require quarterly publication; rather, they set a time period within which a given property must be published in the Federal Register. See 42 U.S.C. 11411(c)(1)(A) ("No later than 15 days after the last day of the 45 day period [within which landholding agencies must transmit information on available property to HUD] the Secretary [of HUD] shall publish in the Federal Register"). And as plaintiffs point out, this time limitation by no means prohibits the Court from requiring more frequent publication. In addition, the Court finds that monthly publication is appropriate because it would allow HUD some flexibility in the event weekly publication becomes impracticable. If HUD decides to change over to monthly publication, it must give plaintiffs 90 days' notice prior to the effective date and must also publish notice of the change in the Federal Register. Finally, the Court urges HUD to continue with its current practice of weekly publication.

 4. The Application Package (Proposed Order P 10)

 Homeless providers may submit an application to the Secretary of Health and Human Services ("HHS") for any property that is published in the Federal Register. 42 U.S.C. § 11411(e)(1). Plaintiffs now ask the Court to modify its permanent injunction to the extent that HHS must provide certain information in the application packet to assist homeless providers with the filing of applications. Specifically, plaintiffs propose that HHS include with each application for property: 1) a notice identifying the National Law Center for Homelessness and Poverty as an organization available to assist in the application process (including the telephone number of the National Law Center); 2) notice that HHS staff are available to assist homeless providers in the application process (including the telephone number of the relevant staff persons); 3) a fact sheet describing possible funding sources; and 4) ...


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