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April 27, 2000


The opinion of the court was delivered by: Lamberth, District Judge.


Plaintiff National Law Center on Homelessness and Poverty ("NLCHP") moves the court for a further order enforcing the court's permanent injunction to remedy subsequent alleged violations of Section 501 of the Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. § 11411 ("McKinney Act" or "Act") by defendant General Services Administration ("GSA"). Specifically, plaintiff challenges the GSA's reliance on another statute, 40 U.S.C. § 345b*fn1 ("Section 345b"), to authorize the sale of certain federal properties to states and municipalities, without first complying with the McKinney Act. GSA maintains that property transferred under Section 345b, which authorizes the GSA to sell Federal buildings, "which have been supplanted by new structures," to States or political subdivisions thereof, does not constitute "excess" or "surplus" property under the McKinney Act, and therefore, the Act's requirements do not apply to such property. Alternatively, defendants contend that plaintiffs' motion should be barred by laches for their unreasonable delay in bringing it. Upon consideration of the plaintiffs' motion, the opposition thereto, the applicable law, and for the reasons set forth below, the court hereby GRANTS plaintiffs' motion and defendant is hereby ENJOINED from transferring federal property without first complying with the procedures set forth by the McKinney Act.


In the original action, plaintiffs claimed that various governmental agencies were not satisfying their responsibilities under the McKinney Act, which seeks to transform "surplus" or "excess" federal government buildings into facilities for the homeless. The McKinney Act operates in conjunction with the Federal Property and Administrative Services Act of 1949 ("Property Act"), 40 U.S.C. § 484, which authorizes GSA to oversee the disposal of surplus property belonging to the federal government.

In December 1988, this court granted summary judgment and permanent injunctive relief for plaintiffs in this action, holding that the Department of Housing & Urban Development ("HUD") would be required to conduct more extensive "canvassing" of federal properties, to publish lists of "suitable" and available properties in the Federal Register, and to take such further steps as necessary to establish meaningful outreach programs for disposing of these federal properties. See National Coalition for the Homeless v. U.S. Veterans Admin., No. 88-2503, 1988 WL 136958, * 7 (D.C. Dec. 15, 1988). In addition, the court has been obliged to issue further orders enforcing its injunction on three prior occasions. See National Law Center on Homelessness and Poverty v. United States Veterans Admin., 765 F. Supp. 1 (D.C. 1991); id. at 13; National Law Center on Homelessness and Poverty v. United States Veterans Admin., 819 F. Supp. 69 (D.C. 1993). In its Order of April 21, 1993, the court retained jurisdiction to permit "any one of the parties to seek such further orders or directions as may be necessary or appropriate for the construction or carrying out of this Decree, . . . [and] for the enforcement of compliance and punishment of violations thereof . . ." Order of April 21, 1993, ¶ 17. A court's powers to enforce its own injunction by issuing additional orders is broad, Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), particularly where the enjoined party has not "fully complied with the court's earlier orders". Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).

As noted above, the present controversy concerns plaintiffs' challenge to GSA's use of another statute, Section 345b, to avoid complying with the requirements of the McKinney Act. For example, in May 1997, GSA utilized Section 345b to sell a former federal courthouse in St. Louis, Missouri, without complying with the McKinney Act. See Declaration of Laurel D. Weir, February 16, 2000, ¶ 5 ("Weir Decl."), Exh. A to Plaintiffs' Motion for Further Order Enforcing Permanent Injunction. And, as is uncontested in the present action, GSA indicates that it intends to sell the former federal courthouse in Lafayette, Louisiana to the City-Parish of Lafayette using Section 345b as well. Weir Decl., ¶ 6.

To begin with, defendants argue that this court should not reach the merits of plaintiffs' motion because the equitable doctrine of laches bars plaintiffs' motion. That is, defendants assert that plaintiff waited silently for 8 months after learning of the proposed sale before filing this motion. The court finds defendants' laches argument to be without merit, as defendants are unable to demonstrate unreasonable delay. Allen v. Card, 799 F. Supp. 158, 165 (D.C. 1992) (stating that to sustain the affirmative defense of laches, defendant must prove elements of unreasonable delay and undue prejudice and that neither element is sufficient on its own). As plaintiff explains, after having made initial objections to the sale in May 1999, it later was informed that the City-Parish of Lafayette did not have the proper funding to close the transaction. Weir Decl., ¶ 6. Accordingly, plaintiff took no further action on the matter. Subsequently, however, plaintiff learned in December 1999 that the sale was still pending, at which point plaintiff contacted GSA to inform them that plaintiff planned to challenge the sale. Id. Thus, the court finds that plaintiff did not unreasonably delay in bringing its motion and laches will not foreclose this court from reaching the merits.

With respect to the substance of the present dispute, defendants advance that the Lafayette courthouse, which has been replaced by a new courthouse, does not constitute "excess" property as that term in defined by the Property Act. Thus, rather than provide an end-run around the McKinney Act, defendants maintain that the McKinney Act requirements are never triggered. Instead, they contend that Section 345b involves a unique and limited authority that allows GSA to sell obsolete buildings to cities, counties and other political subdivisions, for public use, when the building is replaced by a new structure. Accordingly, to resolve the present dispute, the court must determine whether property transferred under Section 345b must first be reported as "excess" or "surplus" property under the Property Act and subject to the McKinney Act. Put simply, resolution of this issue depends upon whether the McKinney Act, as implemented by the Property Act, preempts Section 345b. As explained below, the court finds that it does.


A. The McKinney Act and The Federal Property and Administrative Services Act

By enacting the McKinney Act, Congress recognized 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) & (6). Thus, Section 501 of the Act, 42 U.S.C. § 11411, establishes a program whereby the Secretary of Housing and Urban Development ("HUD") identifies and publishes lists in the Federal Register of excess or surplus buildings and properties that are suitable for use to assist the homeless. 42 U.S.C. § 14111(a)(f).

To achieve its goal of assisting the homeless, the McKinney Act relies on certain federal property laws and their implementing regulations to identify excess or surplus properties not being used by the federal government. See 42 U.S.C. § 11411(a); 41 C.F.R. § 101-47.903(a) (1999). In particular, the McKinney Act operates in conjunction with the Federal Property and Administrative Services Act of 1949 ("Property Act"), 40 U.S.C. § 471 et seq., which requires, inter alia, federal landholding agencies to conduct surveys to determine whether property is excess, surplus, unutilized or underutilized. 40 U.S.C. § 483(b)(2); see also 40 U.S.C. § 472(e) (1994); 41 C.F.R. § 101-47.802(a) (1999); Exec. Order No. 12512 (April 29, 1995) (reprinted in 40 U.S.C. § 486 note (1994)); 41 C.F.R. § 101-47.802(b) (1999); Order of April 21, 1993, ¶ 1, 2.

The Property Act provides a comprehensive scheme for the disposal of surplus federal property. 40 U.S.C. § 471. And, to reinforce its broad scope, Congress expressly preempted any inconsistent federal law that might otherwise govern surplus federal property. Specifically, the Property Act provides that "[t]he authority conferred by this Act shall be in addition to and paramount to any authority conferred by any other law and shall not be subject to the provisions of any law inconsistent herewith. . . ." 40 U.S.C. § 474(c).

To comply with the requirements of the Property Act regarding the disposal of surplus property, an agency must first determine whether any property under its control is "excess" to its own needs. 40 U.S.C. § 483(b)(2). "Excess property" is "any property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities, as determined by the head thereof." 40 U.S.C. § 472(e) (emphasis added). If it is, the Property Act requires the agency to make that property available to other federal agencies. 40 U.S.C. § 483(a). When no other federal agency needs the property, the Property Act declares such property to be "surplus." "Surplus property" is defined as "any property not required for the needs and the discharge of the responsibilities of all ...

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