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National Law Center on Homelessness & Poverty v. United States Dep't of Veterans Affairs

United States District Court, District of Columbia

March 21, 2013

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

Page 168

[Copyrighted Material Omitted]

Page 169

For JOHN-ED CROFT Plaintiff: Georgia Kazakis, LEAD ATTORNEY, Bradley K. Ervin, Robert Allen Long, Jr., COVINGTON & BURLING LLP, Washington, DC; Maria Foscarinis, LEAD ATTORNEY, NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY, Executive, Washington, DC; Lyle Jeffrey Pash, NATIONAL FOOTBALL LEAGUE, New York, NY.

For ASSOCIATION TO BENEFIT CHILDREN, a not-for-profit corporation, Plaintiff: Georgia Kazakis, LEAD ATTORNEY, Bradley K. Ervin, Robert Allen Long, Jr., COVINGTON & BURLING LLP, Washington, DC; D. Scott Coward, COVINGTON & BURLING, Washington, DC; Lyle Jeffrey Pash, NATIONAL FOOTBALL LEAGUE, New York, NY.

For MIDDLESEX INTERFAITH PARTNERSHIP WITH THE HOMELESS, a not-for-profit corporation, Plaintiff: Georgia Kazakis, LEAD ATTORNEY, Bradley K. Ervin, Robert Allen Long, Jr., COVINGTON & BURLING LLP, Washington, DC; Maria Foscarinis, LEAD ATTORNEY, NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY, Executive, Washington, DC; D. Scott Coward, COVINGTON & BURLING, Washington, DC; Lyle Jeffrey Pash, NATIONAL FOOTBALL LEAGUE, New York, NY.

For H.O.M.E. FRONT, INC., a not-for profit corporation, Plaintiff: Maria Foscarinis, LEAD ATTORNEY, NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY, Executive, Washington, DC; Bradley K. Ervin, Robert Allen Long, Jr., COVINGTON & BURLING LLP, Washington, DC; D. Scott Coward, COVINGTON & BURLING, Washington, DC; Lyle Jeffrey Pash, NATIONAL FOOTBALL LEAGUE, New York, NY.

For NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, Plaintiff: Bradley K. Ervin, Georgia Kazakis, COVINGTON & BURLING LLP, Washington, DC; D. Scott Coward, COVINGTON & BURLING, Washington, DC; Lyle Jeffrey Pash, NATIONAL FOOTBALL LEAGUE, New York, NY; Maria Foscarinis, NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY, Executive, Washington, DC.

For VETERANS ADMINISTRATION, DEPARTMENT OF DEFENSE, FRANK C. CARLUCCI, in his capacity as Secretary of the Department of Defense, DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, GENERAL SERVICES ADMINISTRATION, Defendants: Carlotta Porter Wells, Elisa B. Vela, LEAD ATTORNEYS, Arthur R. Goldberg, Mary Elizabeth Magee, U.S. Department of Justice, Civil Division, Washington, DC; Nitin Shah, W. Scott Simpson, LEAD ATTORNEYS, Patrick George Nemeroff, Lisa Ann Olson, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Daniel Edward Bensing, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

For THOMAS K. TURNAGE, in his capacity as Administrator of the Veterans' Administration, SAMUEL R. PIERCE, in his capacity as Secretary of the Department of HUD, Defendants: Carlotta Porter Wells, Elisa B. Vela, LEAD ATTORNEYS, Arthur R. Goldberg, Mary Elizabeth Magee, U.S. Department of Justice, Civil Division, Washington, DC; Nitin Shah, W. Scott Simpson, LEAD ATTORNEYS, Patrick George Nemeroff, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Daniel Edward Bensing, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

For JOHN ALDERSON, in his capacity as Administrator of the GSA, DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN SERVICES, Defendants: Carlotta Porter Wells, Elisa B. Vela, LEAD ATTORNEYS, Arthur R. Goldberg, Mary Elizabeth Magee, U.S. Department of Justice, Civil Division, Washington, DC; Nitin Shah, W. Scott Simpson, LEAD ATTORNEYS, Patrick George Nemeroff, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For OTIS R. BOWEN, in his capacity as Secretary of the Department of HHS, Defendant: Elisa B. Vela, LEAD ATTORNEYS, Arthur R. Goldberg, Mary Elizabeth Magee, U.S. Department of Justice, Civil Division, Washington, DC; Nitin Shah, W. Scott Simpson, LEAD ATTORNEYS, Patrick George Nemeroff, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Daniel Edward Bensing, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

OPINION

Royce C. Lamberth, Chief United States District Judge.

Page 170

MEMORANDUM OPINION

Title V of the Stewart B. McKinney Homeless Assistance Act of 1987 (" McKinney Act" ) requires federal agencies to make their unneeded property available for use by the homeless. 42 U.S.C. § 11411. Defendants have moved the Court to vacate a twenty-year-old judicial Order designed to ensure federal agencies' compliance with that statute. Defs.' Mot. To Vacate, ECF No. 568. Plaintiffs oppose this motion and seek a further expansion of the 1993 Order. Pls.' Mot., ECF No. 622. Because the Court finds troubling indications of widespread noncompliance, it will DENY defendants' motion to vacate and will GRANT plaintiffs' motion to expand the Order.

I. BACKGROUND

" While this is an old case, it's an important one, with real consequences for people who have fallen about as far down in the depths as one can in this country." Nat'l Law Ctr. on Homelessness & Poverty v. U.S. Dep't of Veterans Affairs (" NLCHP Motion to Compel Decision " ), 842 F.Supp.2d 127, 132 (D.D.C. 2012). Because the background of this case has been reviewed many times, see, e.g., id. at 129-30; Nat'l Law Ctr. on Homelessness & Poverty v. U.S. Veterans Admin. (" NLCHP Preemption Decision " ), 98 F.Supp.2d 25, 26 (D.D.C. 2000); Nat'l Law Ctr. on Homelessness & Poverty v. U.S. Veterans Admin. (" NLCHP Summary Judgment Decision " ), 1988 WL 136958, *1-4,

Page 171

this opinion repeats only relevant details.

The McKinney Act (as amended) and implementing regulations set out the following process [1] for making certain federal property available to the homeless:

Canvassing of Agencies : HUD is charged with performing a quarterly canvass of all federal landholding agencies to collect data on properties that are designated as " excess," " surplus," " unutilized," or " underutilized." 42 U.S.C. § 11411(a); 45 C.F.R. § 12a.3(a). Agencies have 25 days to respond. 42 U.S.C. § 11411(a); 45 C.F.R. § 12a.3(a)(2).
Suitability Determination : Upon receipt of information from landholding agencies, HUD must identify which, if any, of these properties are " suitable" for use to assist the homeless ...

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