40 U.S.C 3307:  Congressional approval of proposed projects

Court of Federal Claims - Key Excerpts

B. Whether GSA Violated 40 U.S.C. § 3307

Before the GSA leases space with an annual rent in excess of $2.85 million, it must seek congressional approval. 40 U.S.C. § 3307(a)(2); see supra, at 2 n.5 (describing GSA’s adjustment of the statutory dollar threshold). For such leases, “appropriations may be made only if the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives adopt resolutions approving the purpose for which the appropriation is made.” 40 U.S.C. § 3307(a). To secure this approval, GSA “shall transmit to Congress a prospectus of the proposed facility.” 40 U.S.C. § 3307(b).

In Springfield’s view, GSA could not select a building larger than 625,000 rentable square feet, because that limitation was included in the congressional committees’ resolutions approving GSA’s prospectus for the TSA headquarters. Pl.’s Mot. at 24. The defendants disagree, arguing that Section 3307 expresses mere congressional concern about “public funds, not a desire to cabin Federal employees within specific physical boundaries.” Def.’s Mot. at 14. As the defendants would have it, GSA can lease a building larger than 625,000 rentable square feet, even if the congressionally-approved prospectus said GSA would not do so, and even though the congressional committees’ resolutions limited their approval to a maximum of 625,000 rentable square feet.

Section 3307 has rarely been interpreted in judicial decisions. Nonetheless, courts have established that an appropriation is not “made available” to GSA without congressional approval of a project prospectus. Maiatico v. United States, 302 F.2d 880, 883-84 (D.C. Cir. 1962) (reversing a district court which had rejected a landowner’s challenge to GSA’s claim of right to condemn property where GSA had failed to send a prospectus to Congress for approval); 210 Earll, L.L.C. v. United States, 77 Fed. Cl. 710, 718 (2006) (concluding that Section 3307 “would require the GSA to obtain Prospectus approval before executing a lease that exceeded” the cost threshold in Subsection 3307(a)). As the D.C. Circuit in Maiatico put it, “[t]he [Public Buildings] Act [of 1959] authorized the Administrator to acquire any building and its site by condemnation or otherwise, in order to carry out the purposes of the Act, but strictly in accordance with its provisions.” Maiatico, 302 F.2d at 882. Even so, the court has found no precedents addressing GSA compliance with the terms of a prospectus or congressional resolutions stating conditions on that approval. Accordingly, the court must interpret the statute from first principles, beginning with the plain text.

Pursuant to 40 U.S.C. § 3307(a), an “appropriation” for a lease in excess of $2.85 million “may be made only if” the Senate Environment and Public Works Committee and House Transportation and Infrastructure Committee “adopt resolutions approving the purpose” of that lease appropriation. 40 U.S.C. § 3307(a), (a)(1). GSA obtains that “approval” by sending a prospectus to Congress. 40 U.S.C. § 3307(b). The prospectus must give a “brief description” of the “space to be leased,” provide an “estimate of the maximum cost to the [g]overnment,” and include “a comprehensive plan for providing space for all [g]overnment officers and employees in the locality . . . having due regard for suitable space which may continue to be available in existing [g]overnment-owned or occupied buildings.” 40 U.S.C. § 3307(b)(1)-(3).

The two committees of Congress then “adopt resolutions” that contain their approval (or disapproval, in theory) of the “purpose” of the lease appropriation. 40 U.S.C. § 3307(a). It is this “approval” of “purpose” in the resolutions that is required by Subsection 3307(a) as a precondition to availability of appropriations. See 40 U.S.C. § 3307(a) (“The following appropriations may be made only if [the committees] adopt resolutions approving the purpose for which the appropriation is made.” (emphasis added)). The terms of the resolutions contain the “approval” contemplated by the statute, and congressional “approval” is accordingly determined by the resolutions.

This reading of Subsection 3307(a) is reinforced by Subsection 3307(c), which helps to illuminate the statutory scheme. See BASR P’ship v. United States, 795 F.3d 1338, 1343 (Fed. Cir. 2015) (“Under Supreme Court precedent, we cannot determine the meaning of the statutory language without examining that language in light of its place in the statutory scheme.”). Pursuant to Subsection 3307(c), GSA may exceed the “estimated maximum cost of any project approved under this section as set forth in any prospectus” described in Paragraph 3307(b)(2), so long as GSA does not exceed 10% of the estimated maximum cost. 40 U.S.C. § 3307(c). Section 3307 is otherwise silent about deviations from conditions on congressional approval. Because Section 3307 provides that that cost may deviate from the approvals only as permitted by Subsection 3307(c), this subsection “shows that Congress knew exactly how to provide” an exception to a congressional approval. See Department of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 132 (2002). In this context, the court should be cautious in interpreting Section 3307 as permitting GSA to depart from the congressional committees’ conditions on approval with respect to non-cost factors. See Elonis v. United States, __ U.S. __, 135 S. Ct. 2001, 2023 (2015) (finding Congress knew how to require a heightened mens rea, and so finding its failure to do so significant); see also Law v. Siegel, __ U.S. __, 134 S. Ct. 1188, 1196 (2014) (finding that a code’s “enumeration of exemptions and exceptions to those exemptions confirms that courts are not authorized to create additional exceptions.”).

On the facts of this case, GSA sent a prospectus to Congress saying the TSA lease would not exceed 625,000 rentable square feet. AR 64-5094. The prospectus further explained it would house TSA personnel with increased efficiency. Id. As of January 2014, TSA office space added up to 646,859 rentable square feet. But the proposed lease, by capping rentable square feet at 625,000, would “house current personnel in 21,859 RSF less than the total of current occupancies.” AR 64-5094. GSA’s prospectus said “TSA will improve its office utilization rate from 103 USF to 84 USF per person and its overall utilization rate from 173 USF to 153 USF per person.” Id. Thus the “space to be leased,” as described by GSA, would be a space that reduced TSA’s current footprint by capping rentable square footage at 625,000, and that would increase space utilization per person.

The resolutions adopted by the pertinent committees approving this plan restated the 625,000 rentable square foot cap and the plan for increased efficiency of space. See AR 65-5098 (House committee resolution stating: “[A]ppropriations are authorized for a replacement lease of up to 625,000 rentable square feet of space.”); AR 66-5099 (Senate committee resolution stating: “[A] replacement lease of up to a maximum 625,000 rentable square feet of space . . . is approved.”). The House committee also explicitly “[p]rovided that, the Administrator of General Services and tenant agencies agree to apply an overall utilization rate of 153 square feet or less per person.” AR 65-5098. The terms of these resolutions provide the boundaries of congressional approval.

Defendants make three arguments that Section 3307 does not impose limits upon lease appropriations. The court addresses these arguments in turn, finding each unpersuasive.

(sections deleted)

The court has determined that pursuant to Subsection 3307(a), the committee resolutions created binding conditions upon the availability of appropriations. Appropriations for TSA headquarters were accordingly available only for a lease of up to 625,000 square feet because that was the limit included in the resolutions adopted by the relevant congressional committees. 40 U.S.C. § 3307(a).25 Because no appropriation has been made for a space exceeding 625,000 rentable square feet, the lease signed by the government and Eisenhower triggers the Anti- Deficiency Act, 31 U.S.C. § 1341, which provides that an “officer or employee of the United States Government . . . may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation . . . unless authorized by law.” 31 U.S.C. § 1341(a)(1)(A), (B).

Defendants argue that even if GSA violated Section 3307, GSA’s conduct was “authorized by law” within the meaning of the Anti-Deficiency Act because of the effect of 40 U.S.C. § 585(a)(2). Def.’s Supp. Br. at 9-10; Def.-Interv.’s Supp. Br. at 8. That contention is without merit. Paragraph 585(a)(2) provides that GSA may enter into leases for up to 20 years, “and the obligation of amounts for a lease under this subsection is limited to the current fiscal year for which payments are due without regard to section 1341(a)(1)(B) of title 31.” 40 U.S.C. § 585(a)(2). Nonetheless, GSA’s leasing activities are not immune from the Anti-Deficiency Act. Instead, Paragraph 585(a)(2) directs GSA “to obligate funds for its multiyear leases one year at a time.” 3 Government Accountability Office, Principles of Federal Appropriations Law, § 13.E.1.b, at 13-127 (3d ed. Sept. 2008). As discussed earlier, Congress appropriates funds for federal leases anew each year. The reference to the Anti-Deficiency Act in Paragraph 585(a)(2) establishes that GSA may enter into a multi-year lease, even though money is obligated one year at a time, without contravening the Anti-Deficiency Act.

The decision in Leiter v. United States, 271 U.S. 204 (1926), provides context for this understanding of 40 U.S.C. § 585(a)(2). Prior to enactment of Paragraph 585(a)(2), if GSA entered a lease for several years “under an appropriation available but for one fiscal year,” the lease would be binding “only for that year” because of the Anti-Deficiency Act. Leiter, 271 U.S. at 207. Paragraph 585(a)(2) undid that result. But it did not exempt GSA leases from the Anti- Deficiency Act.

In this instance, GSA’s violation of Subsection 3307(a) means that no appropriation was available for the lease for TSA headquarters. Without an appropriation, GSA’s lease with Eisenhower is void ab initio. See Davis & Assocs., Inc. v. District of Columbia, 501 F. Supp. 2d 77, 81 (D.D.C. 2007) (finding contract void ab initio pursuant to 31 U.S.C. § 1341(a)(1)(B) when made before an appropriation); Williams v. District of Columbia, 902 A.2d 91, 94 (D.C. 2006) (“[T]he Supreme Court of the United States and other federal courts have explicitly and repeatedly held that all contracts for future payments of money, in advance of or in excess of existing appropriations, are void ab initio.”) (citing Hercules, Inc. v. United States, 516 U.S. 417, 427 (1996); Goodyear Tire & Rubber Co v. United States, 276 U.S. 287 (1928); Leiter, 271 U.S. at 207).

Accordingly, the lease entered by GSA with Eisenhower for Victory Center is contrary to law, void, and must be set aside.  (Springfield Parcel C, LLC v. U. S. and Eisenhower Real Estate Holdings, LLC, No. 15. 1069C, November 25, 2015)  (pdf)

Court of Federal Claims - Listing of Decisions

Court of Appeals for the Federal Circuit - Key Excerpts

While the Claims Court dismissed Count II on prudential standing grounds, we need not reach that issue because the plain language of 28 U.S.C. § 1491(b)(1) expressly precludes Claims Court jurisdiction over Count II of the complaint. Section 1491(b)(1) only confers jurisdiction over challenges to statutes or regulations “in connection with a procurement or proposed procurement.” 28 U.S.C. § 1491(b)(1). It is a canon of statutory construction to “give effect, if possible, to every clause and word of a statute.” United States v. Menasche, 348 U.S. 528, 538– 39 (1955) (internal quotation marks and citation omitted). In accordance with that principle, we decline to read out the meaning of “procurement” from the text of § 1491(b)(1) regarding the statutes and regulations that an interested party may challenge.

We have previously interpreted § 1491(b) to extend only to actions in which “the government at least initiated a procurement, or initiated ‘the process for determining a need’ for acquisition.” Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1346 (Fed. Cir. 2008). The phrase “procurement” therefore limits the types of government action that the Claims Court has jurisdiction to review under § 1491(b). Id.; see also Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1245 (Fed. Cir. 2010) (“[R]elief under 1491(b)(1) is unavailable outside the procurement context.”). If plaintiffs could allege any statutory or regulatory violation tangentially related to a government procurement, § 1491(b)(1) jurisdiction risks expanding far beyond the procurement context.

The only statute alleged to be violated by Cleveland Assets in Count II is 40 U.S.C. § 3307, an appropriation, not a procurement, statute. The plain text of § 3307 demonstrates that the statute is directed to “appropria-tions [being] made only” pursuant to approval by the specified congressional committees. 40 U.S.C. § 3307(a) (emphasis added). While the word “procurement” is nowhere to be found in the statute, “appropriation” is used eight times.

The statutory structure confirms our plain language reading of the statute. The structure of 40 U.S.C. § 3307 directs GSA how to apply for an appropriation, but it says nothing of how GSA must run its procurement once the appropriation is made. For instance, the statute explains what material must be included in the “prospectus of a proposed project,” § 3307(b), the extent to which the estimated maximum cost may be increased, § 3307(c), when approval of a project may be rescinded, § 3307(d), and limitations on leasing certain types of spaces, § 3307(g). Moreover, Chapter 33 of title 40, under which § 3307 exists, generally dictates requirements for GSA’s construction, alteration, and lease of government buildings, such as ensuring compliance with building codes and zoning laws. See, e.g., 40 U.S.C. § 3312. But none of the surrounding statutory sections dictate GSA’s procurement procedures for any such construction, alteration, or lease.

If we were to read § 3307 as a procurement statute, every appropriations bill and rider would become a potential source of challenge for any interested party under 28 U.S.C. § 1491(b)(1). We therefore affirm the Claims Court’s dismissal of Count II of Cleveland Assets’ complaint.  (Cleveland Assets, LLC v. U. S., No. 2017-2113, March 5, 2018)

Court of Appeals for the Federal Circuit -