B-182007, MAY 6, 1975, 54 COMP GEN 944

B-182007: May 6, 1975

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COURTS LEGISLATIVE HISTORY OF ADMINISTRATIVE OFFICE ACT OF 1939 INDICATES PURPOSE OF ADMINISTRATIVE OFFICE WAS TWOFOLD: TO DIVORCE JUDICIARY FROM ADMINISTRATIVE AND FINANCIAL CONTROL OF DEPARTMENT OF JUSTICE AND TO PROVIDE CENTRALIZED ADMINISTRATION FOR THE VARIOUS CIRCUITS. COURTS UNDER 28 U.S.C. 604(A)(11) TO "PROVIDE ACCOMMODATIONS" WAS MEANT TO CONFER ADMINISTRATIVE AUTHORITY VIA COORDINATION OF NEEDS AND BUDGET RESPONSIBILITY FOR THE COURTS RATHER THAN RESPONSIBILITY FOR ACTUALLY LEASING THE SPACE FOR ACCOMMODATIONS. ETC. - LIMITING MONEY FOR LEASING - APPLICABLE TO ALL OF FEDERAL GOVERNMENT - INCLUDING JUDICIARY SINCE LAWS ARE PRESUMED TO BE CONSISTENT AND LEGISLATIVE HISTORY OF FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 INDICATES GENERAL SERVICES ADMINISTRATION (GSA) WAS TO PERFORM CENTRALIZED PROPERTY MANAGEMENT FUNCTIONS FOR GOVERNMENT AGENCIES GENERALLY WHILE LEGISLATIVE INTENT OF ADMINISTRATIVE OFFICE ACT OF 1939 WAS TO HAVE DIRECTOR OF ADMINISTRATIVE OFFICE OF U.S.

B-182007, MAY 6, 1975, 54 COMP GEN 944

GENERAL SERVICES ADMINISTRATION - SERVICES FOR OTHER AGENCIES - SPACE ASSIGNMENT - INCLUDING LEASING ALTHOUGH ADMINISTRATIVE OFFICE ACT OF 1939 PROVIDES THAT DIRECTOR, ADMINISTRATIVE OFFICE OF U.S. COURTS, SHALL "PROVIDE ACCOMMODATIONS" FOR JUDICIARY, FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED (40 U.S.C. 271 ET SEQ.) PROVIDES THAT GENERAL SERVICES ADMINISTRATION SHALL PERFORM CENTRALIZED PROPERTY MANAGEMENT FUNCTION (INCLUDING LEASING) FOR AGENCIES OF FEDERAL GOVERNMENT. THEREFORE JUDICIARY, INCLUDED BY DEFINITION IN PROVISIONS OF PROPERTY ACT OF 1949, MAY NOT PERFORM ITS OWN LEASING FUNCTIONS. COURTS - ADMINISTRATIVE MATTERS - PURPOSE OF ADMINISTRATIVE OFFICE OF U.S. COURTS LEGISLATIVE HISTORY OF ADMINISTRATIVE OFFICE ACT OF 1939 INDICATES PURPOSE OF ADMINISTRATIVE OFFICE WAS TWOFOLD: TO DIVORCE JUDICIARY FROM ADMINISTRATIVE AND FINANCIAL CONTROL OF DEPARTMENT OF JUSTICE AND TO PROVIDE CENTRALIZED ADMINISTRATION FOR THE VARIOUS CIRCUITS. THEREFORE, DUTY OF DIRECTOR, ADMINISTRATIVE OFFICE OF U.S. COURTS UNDER 28 U.S.C. 604(A)(11) TO "PROVIDE ACCOMMODATIONS" WAS MEANT TO CONFER ADMINISTRATIVE AUTHORITY VIA COORDINATION OF NEEDS AND BUDGET RESPONSIBILITY FOR THE COURTS RATHER THAN RESPONSIBILITY FOR ACTUALLY LEASING THE SPACE FOR ACCOMMODATIONS. STATUTORY CONSTRUCTION - LEGISLATIVE HISTORY, TITLE, ETC. - LIMITING MONEY FOR LEASING - APPLICABLE TO ALL OF FEDERAL GOVERNMENT - INCLUDING JUDICIARY SINCE LAWS ARE PRESUMED TO BE CONSISTENT AND LEGISLATIVE HISTORY OF FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 INDICATES GENERAL SERVICES ADMINISTRATION (GSA) WAS TO PERFORM CENTRALIZED PROPERTY MANAGEMENT FUNCTIONS FOR GOVERNMENT AGENCIES GENERALLY WHILE LEGISLATIVE INTENT OF ADMINISTRATIVE OFFICE ACT OF 1939 WAS TO HAVE DIRECTOR OF ADMINISTRATIVE OFFICE OF U.S. COURTS COORDINATE NEEDS AND BUDGET FOR JUDICIAL BRANCH, GSA'S LEASING FUNCTION IS CONSISTENT WITH DIRECTOR'S DUTY TO PROVIDE ACCOMMODATIONS FOR COURTS. GENERAL SERVICES ADMINISTRATION - AUTHORITY - SPACE ASSIGNMENT - LEASING - FREEZE IN PERFORMING ITS CENTRALIZED LEASING FUNCTIONS PURSUANT TO FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, GENERAL SERVICE ADMINISTRATION'S (GSA) IMPOSITION OF FREEZE ON MONIES APPROPRIATED TO JUDICIARY FOR FISCAL YEAR 1975 FOR NEW LEASES IS CONSISTENT WITH CONGRESSIONAL INTENT OF GSA'S APPROPRIATION ACT FOR 1975 TO LIMIT MONIES EXPENDED FOR LEASING FOR ALL OF FEDERAL GOVERNMENT.

IN THE MATTER OF GENERAL SERVICES ADMINISTRATION'S FREEZE ON FUNDS AVAILABLE TO ADMINISTRATIVE OFFICE OF U.S. COURTS FOR NEW LEASED SPACE, MAY 6, 1975:

THIS DECISION TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (AOC) IS IN RESPONSE TO HIS REQUEST FOR AN OPINION REGARDING THE FREEZING BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF MONIES APPROPRIATED TO THE JUDICIARY FOR FISCAL YEAR (FY) 1975 FOR LEASING OF NEW SPACE AND FACILITIES FOR THE FEDERAL COURT SYSTEM FOR FY 1975.

SPECIFICALLY, THE DIRECTOR POSES TWO QUESTIONS:

1. *** WHETHER GSA CAN, UNDER EXISTING LAW, IMPOSE A MORATORIUM ON THE EXPENDITURE OF FUNDS APPROPRIATED TO THE JUDICIAL BRANCH FOR THE ACQUISITION OF NEW LEASED SPACE.

2. IN THE EVENT GSA CAN PLACE A FREEZE ON SUCH FUNDS, *** IS IT POSSIBLE FOR THIS OFFICE INDEPENDENTLY TO ACQUIRE SPACE UNDER SECTION 604(A)(11) OF TITLE 28 WITHOUT REFERENCE TO THE LANDLORD-TENANT SCHEME CONTAINED IN THE PUBLIC BUILDINGS ACT AMENDMENTS OF 1972.

THE DEPARTMENT OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY AND RELATED AGENCIES APPROPRIATION ACT, 1975, PUBLIC LAW 93-433, 88 STAT. 1187 (HEREAFTER CALLED THE JUDICIARY 1975 APPROPRIATION) CONTAINS THE FOLLOWING PERTINENT PROVISION:

FOR THE RENTAL OF SPACE, TENANT ALTERATIONS, AND RELATED SERVICES FOR THE UNITED STATES COURTS OF APPEALS AND DISTRICT COURTS, THE COURT OF CUSTOMS AND PATENT APPEALS, THE CUSTOMS COURT, THE COURT OF CLAIMS, THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THE FEDERAL JUDICIAL CENTER, PURSUANT TO THE PUBLIC BUILDINGS AMENDMENTS OF 1972, PUBLIC LAW 92 -313, JUNE 16, 1972 (86 STAT. 216), $66,100,000, TO BE AVAILABLE FOR TRANSFER TO THE GENERAL SERVICES ADMINISTRATION WHICH SHALL BE RESPONSIBLE FOR ADMINISTERING THE PROGRAM IN COMPLIANCE WITH STANDARDS OR GUIDELINES PRESCRIBED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES.

AS TO THIS PROVISION, IT IS STATED IN SENATE REPORT NO. 93-1110, THAT:

FOR THIS NEW APPROPRIATION THE COMMITTEE RECOMMENDS $66,100,000, THE HOUSE ALLOWANCE AND A REDUCTION OF $12,400,000 IN THE BUDGET ESTIMATE. THIS APPROPRIATION, PURSUANT TO LANGUAGE INCLUDED BY THE HOUSE AND RECOMMENDED BY THE COMMITTEE AUTHORIZES THE TRANSFER OF THESE FUNDS TO THE GENERAL SERVICES ADMINISTRATION AND WILL BE ADMINISTERED IN COOPERATION WITH THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. THE SUM RECOMMENDED WILL BE USED FOR THE RENTAL OF SPACE, UTILITIES, ALTERATIONS, MAINTENANCE AND OTHER TENANT SERVICES FOR THE UNITED STATES COURTS OF APPEALS AND DISTRICT COURTS, THE COURT OF CUSTOMS AND PATENT APPEALS, THE CUSTOMS COURT, THE COURT OF CLAIMS, THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AND THE FEDERAL JUDICIAL CENTER.

THE ORIGINAL BUDGET ESTIMATE OF $78,500,000 WAS INFORMALLY REDUCED BY THE JUDICIARY TO $72,600,000. THE SUM WAS FURTHER REDUCED BY THE HOUSE BY THE APPLICATION OF A 10 PERCENT REDUCTION IN THE STANDARD LEVEL USER CHARGE LEVIED BY THE GENERAL SERVICES ADMINISTRATION. THE 10 PERCENT REDUCTION HAS BEEN APPLIED BY THE HOUSE TO ALL APPROPRIATIONS FOR THESE PURPOSES.

THE DIRECTOR STATES THAT UNDER THE ABOVE QUOTED APPROPRIATION PROVISION GSA'S AUTHORITY OVER THE AVAILABILITY OF SPACE AND FACILITIES FUNDS IS TO BE REGULATED PURSUANT TO STANDARDS AND GUIDELINES PRESCRIBED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES. IT IS THE DIRECTOR'S POSITION THAT WHEN PUBLIC LAW 93-433 IS CONSIDERED WITH SECTION 304(B) OF THE SO-CALLED ADMINISTRATIVE OFFICE ACT OF 1939, AS AMENDED, 28 U.S.C. SEC. 604(A)(11), REGULATORY CONTROL OVER ADMINISTRATIVE MATTERS IS VESTED IN THE DIRECTOR OF AOC. SUBSECTION 604 (A)(11) PROVIDES THAT THE DIRECTOR OF AOC SHALL, AMONG OTHER THINGS:

PROVIDE ACCOMMODATIONS FOR THE COURTS, THE FEDERAL JUDICIAL CENTER, AND THEIR CLERICAL AND ADMINISTRATIVE PERSONNEL.

THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (PROPERTY ACT), 63 STAT. 377, AS AMENDED, 40 U.S.C. SEC. 471, ET SEQ., AUTHORIZES GSA TO ENTER INTO LEASING AGREEMENTS FOR THE BENEFIT AND ACCOMMODATION OF FEDERAL AGENCIES. SECTION 103 OF THE PROPERTY ACT TRANSFERRED TO GSA CONTROL OVER ALL PUBLIC BUILDINGS OWNED OR LEASED BY THE FEDERAL GOVERNMENT IN THE DISTRICT OF COLUMBIA PREVIOUSLY HANDLED BY THE FEDERAL WORKS AGENCY.

SPECIFICALLY, SECTION 210(H)(1) OF THAT ACT (40 U.S.C. SEC. 410(H)(11)) PROVIDES AS FOLLOWS:

THE ADMINISTRATOR (OF GSA) IS AUTHORIZED TO ENTER INTO LEASE AGREEMENTS WITH ANY PERSON, COPARTNERSHIP, CORPORATION, OR OTHER PUBLIC OR PRIVATE ENTITY, WHICH DO NOT BIND THE GOVERNMENT FOR PERIODS IN EXCESS OF TWENTY YEARS FOR EACH SUCH LEASE AGREEMENT, ON SUCH TERMS AS HE DEEMS TO BE IN THE INTEREST OF THE UNITED STATES AND NECESSARY FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS AND IMPROVEMENTS WHICH ARE IN EXISTENCE OR TO BE ERECTED BY THE LESSOR FOR SUCH PURPOSES AND TO ASSIGN AND REASSIGN SPACE THEREIN TO FEDERAL AGENCIES.

WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE, THE AUTHORITY OF OTHER GOVERNMENT AGENCIES TO LEASE AND ASSIGN SPACE IN FEDERALLY OCCUPIED BUILDINGS OUTSIDE THE DISTRICT OF COLUMBIA WAS TRANSFERRED TO THE ADMINISTRATOR OF GSA BY REORGANIZATION PLAN NO. 18 OF 1950, 64 STAT. 1270 (40 U.S.C. SEC. 490 NOTE). SECTION 1 OF THE REORGANIZATION PLAN PROVIDES IN PERTINENT PART AS FOLLOWS:

ALL FUNCTIONS WITH RESPECT TO ACQUIRING SPACE IN BUILDINGS BY LEASE, AND ALL FUNCTIONS WITH RESPECT TO ASSIGNING AND REASSIGNING SPACE IN BUILDINGS FOR USE BY AGENCIES (INCLUDING BOTH SPACE ACQUIRED BY LEASE AND SPACE IN GOVERNMENT OWNED BUILDINGS), ARE HEREBY TRANSFERRED FROM THE RESPECTIVE AGENCIES IN WHICH SUCH FUNCTIONS ARE NOW VESTED TO THE ADMINISTRATOR OF GENERAL SERVICES ***.

SUBPART 101-18.1 OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) IMPLEMENTS SECTION 210(H)(1) OF THE PROPERTY ACT OF 1949 AND THE PROVISIONS OF THE REORGANIZATION PLAN. SECTION 101-18.101 OF FPMR PROVIDES IN PERTINENT PART:

(A) GSA WILL PERFORM ALL LEASING FUNCTIONS OF BUILDING SPACE AND LAND INCIDENTAL THERETO, FOR FEDERAL AGENCIES EXCEPT AS PROVIDED IN THIS SUBPART 101-18.1.

NONE OF THE EXCEPTIONS PROVIDED FOR IN SUBPART 101-18.1 APPLIES TO THE JUDICIARY (ALTHOUGH SECTION 101-18.104(A) DOES PERMIT AGENCIES TO LEASE SPACE IF THERE IS TO BE NO RENTAL FEE OR ONLY NOMINAL CONSIDERATION OF $1 PER ANNUM).

ALTHOUGH THE TERM "FEDERAL AGENCY" IS NOT DEFINED IN THE REGULATIONS, SECTION 3 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT (40 U.S.C. SEC. 472) DEFINES "FEDERAL AGENCY" FOR PURPOSES OF THAT ACT IN THE FOLLOWING MANNER:

(B) THE TERM "FEDERAL AGENCY" MEANS ANY EXECUTIVE AGENCY OR ANY ESTABLISHMENT IN THE LEGISLATIVE OR JUDICIAL BRANCH OF THE GOVERNMENT (EXCEPT THE SENATE, THE HOUSE OF REPRESENTATIVES, AND THE ARCHITECT OF THE CAPITOL AND ANY ACTIVITIES UNDER HIS DIRECTION).

UNDER THIS PROVISION THE SUPREME COURT BUILDING IS EXEMPTED BECAUSE THE BUILDING IS UNDER THE CONTROL OF THE ARCHITECT OF THE CAPITOL. SEE 40 U.S.C. SEC. 13A.

THE LEGISLATIVE HISTORIES OF BOTH THE PROPERTY ACT OF 1949 AND REORGANIZATION PLAN NO. 18 INDICATE THAT IT WAS THE INTENT OF CONGRESS TO SIMPLIFY UTILIZATION OF GOVERNMENT PROPERTY, ELIMINATE COMPETITION AMONG AGENCIES, AND TO REALIZE SAVINGS THROUGH MERGER OF COMMON SERVICES WITH A RESULTANT REDUCTION OF OVERHEAD AND ELIMINATION OF DUPLICATIVE ACTIVITIES. SEE H.R. REPORT NO. 670, 81ST CONG., 1ST SESS. 4, 7 (1949) AND S. REPORT NO. 1675, 81ST CONG., 2ND SESS. 3 (1950), RESPECTIVELY. THEREFORE, IN VIEW OF THE APPARENT INTENT OF THE CONGRESS THAT GSA PERFORM A CENTRALIZED LEASING FUNCTION FOR MOST OF THE REST OF THE FEDERAL GOVERNMENT (INCLUDING THE JUDICIAL BRANCH), AND SINCE LAWS ARE PRESUMED TO BE CONSISTENT WITH EACH OTHER (73 AM. JUR. 2D, STATUTES SEC. 254), THE LEGISLATIVE INTENT CONCERNING THE DUTIES OF THE DIRECTOR, AOC, IN THE ADMINISTRATIVE OFFICE ACT OF 1939 MUST BE EXAMINED.

THE AOC WAS CREATED AS A DISTINCT ENTITY WITH ASSIGNED FUNCTIONS. HOWEVER WE FIND NO SUBSTANTIVE BASIS IN THE HISTORY OR THE LANGUAGE OF THE 1939 ACT TO WARRANT THE CONCLUSION THAT THE ACT WAS INTENDED TO MAINTAIN THE INDEPENDENCE OF THE FEDERAL JUDICIARY OF CONTROLS APPLICABLE TO OTHER FEDERAL ESTABLISHMENT TO THE EXTENT SUGGESTED BY THE AOC. MOREOVER, AS WILL BE DISCUSSED LATER, THE JUDICIARY'S LACK OF INDEPENDENCE FROM GSA IN THIS AREA WAS ADDRESSED DURING CONSIDERATION OF THE JUDICIARY'S 1975 APPROPRIATION AND CONGRESS DID NOT CHANGE THE LAW TO SPECIFICALLY EXEMPT THE JUDICIARY FROM GSA'S AUTHORITY.

THE PURPOSE OF THE 1939 ACT WAS BASICALLY TWOFOLD. ONE PURPOSE WAS TO DIVORCE THE JUDICIARY FROM THE DEPARTMENT OF JUSTICE. TESTIMONY OF CHIEF JUSTICE GRONER OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AS SET FORTH IN THE SENATE REPORT IS ILLUSTRATIVE:

*** SO THAT THE RESULT OF THE PROVISIONS OF THE BILL AS NOW WRITTEN, IT IS EXPECTED, WILL PROVIDE, FIRST OF ALL THE SEPARATION OF THE DEPARTMENT OF JUSTICE FROM THE IMMEDIATE AND ACTUAL AND INTIMATE PARTICIPATION IN THE MONETARY AFFAIRS OF THE COURTS ***. S. REPORT NO. 426, 73TH CONG., 1ST SESS. 3 (1939).

SEE ALSO H.R. REPORT NO. 702, 76TH CONG., 1ST SESS. 3 (1939) WHERE IT WAS STATED THAT UNDER THE SYSTEM THEN IN EFFECT AN ATTORNEY GENERAL COULD INTERFERE WITH THE FUNCTION OF THE COURTS AND HIS NEGLIGENCE COULD IMPAIR THE FUNCTIONS OF THE JUDICIARY AND - TO THE SAME EFFECT - THE JANUARY 24, 1938, TESTIMONY OF ATTORNEY GENERAL CUMMINGS DURING THE HEARINGS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY ON S.3212, 75TH CONGRESS, 8-9.

THE SECOND PURPOSE OF THE ADMINISTRATIVE OFFICE ACT OF 1939 WAS TO PLACE ADMINISTRATIVE RESPONSIBILITIES FOR ALL THE CIRCUITS IN ONE OFFICE, RATHER THAN ALLOWING THE INDIVIDUAL CIRCUITS TO REMAIN ADMINISTRATIVELY INDEPENDENT. SEE H.R. REPORT NO. 702, 76TH CONG., 1ST SESS. 3 (1939). THEREFORE, ALTHOUGH SUBSECTION 604(A)(11) OF TITLE 28, U.S. CODE, PROVIDES THAT THE DIRECTOR, AOC, SHALL "PROVIDE ACCOMMODATIONS," THAT RESPONSIBILITY MUST BE CONSIDERED IN LIGHT OF GSA'S DUTIES REGARDING LEASING AS PROVIDED BY THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED BY THE PUBLIC BUILDINGS AMENDMENTS OF 1972. WHEN THIS IS DONE IT IS APPARENT THAT CONGRESS DID NOT INTEND TO CONFER UPON THE DIRECTOR, AOC, THE AUTHORITY TO PHYSICALLY PROVIDE ACCOMMODATIONS, BUT RATHER THE ADMINISTRATIVE RESPONSIBILITY TO DO SO THROUGH COORDINATION OF THE NEEDS OF THE VARIOUS COURTS IN BUDGET PREPARATION.

IN VIEW OF THE FOREGOING, WE DO NOT FIND AN INCONSISTENCY BETWEEN THE INTENT OF THE PROPERTY ACT OF 1949 OF ELIMINATING COMPETITION AMONG AGENCIES AND REALIZING A SAVINGS THROUGH A MERGER OF COMMON SERVICES IN THE GSA AND THAT OF THE ADMINISTRATIVE OFFICE ACT OF 1939 TO DIVORCE THE ADMINISTRATIVE AND FINANCIAL FUNCTIONS OF THE JUDICIAL BRANCH FROM THE DEPARTMENT OF JUSTICE WHILE PROVIDING IN AOC THE FACILITY FOR COORDINATING THE ADMINISTRATIVE NEEDS OF THE VARIOUS CIRCUITS IN ONE OFFICE.

THEREFORE, IN VIEW OF THE INCLUSION OF THE JUDICIAL BRANCH IN THE DEFINITION OF "FEDERAL AGENCY" IN THE PROPERTY ACT, THE GENERAL ACCOUNTING OFFICE CANNOT SAY THAT CONGRESS INTENDED THE JUDICIAL BRANCH (AOC) TO PERFORM LEASING FUNCTIONS FOR ITSELF. ACCORDINGLY, QUESTION TWO IS ANSWERED IN THE NEGATIVE.

WITH REGARD TO THE MORATORIUM QUESTION THE DIRECTOR STATES THAT GSA'S RATIONALE FOR IMPOSING A "FREEZE ON NEW COMMERCIAL LEASE MONIES PAYABLE OUT OF THE FUND OF THE FEDERAL JUDICIARY" IS THAT CONGRESS, IN THE TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATION ACT, 1975, PUBLIC LAW 93-381 (88 STAT. 613), LIMITED THE AMOUNT OF MONEY WHICH COULD BE EXPENDED BY GSA FOR THE LEASE OF ALL SPACE TO $350 MILLION. THIS LIMITATION IN THE APPROPRIATION ACT IS PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 3 OF THE PUBLIC BUILDINGS AMENDMENTS OF 1972 (ACT), PUBLIC LAW 92-313, 86 STAT. 219 (40 U.S.C. 603 NOTE). THE SUPPLEMENTAL APPROPRIATIONS ACT, 1975, PUBLIC LAW 93-554 (88 STAT. 1771), HAS SINCE INCREASED TO $364 MILLION THE AMOUNT AVAILABLE TO GSA FOR RENTAL OF SPACE. ACCORDING TO GSA THIS WILL PERMIT IT TO ACQUIRE ADDITIONAL SPACE NECESSARY FOR THE COURTS.

PUBLIC LAW 92-313 AMENDED BOTH THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED, 40 U.S.C. SEC. 601, ET SEQ., AND THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. SEC. 471, ET SEQ., TO PROVIDE FOR THE FINANCING, ACQUISITION, CONSTRUCTION, ALTERATION, MAINTENANCE, OPERATION AND PROTECTION OF PUBLIC BUILDINGS. ONE OF THE MAJOR PURPOSES OF THE 1972 ACT WAS THE ESTABLISHMENT UNDER SECTION 3 OF A FUND (FEDERAL BUILDINGS FUND) TO FINANCE REAL PROPERTY MANAGEMENT AND RELATED ACTIVITIES OF GSA. AMONG REVENUES AND COLLECTIONS TO BE DEPOSITED INTO THE FUND ARE USER CHARGES TO BE MADE TO GSA PURSUANT TO SECTION 4. SECTION 4 AMENDS SECTION 210 OF THE PROPERTY ACT OF 1949, AS AMENDED, 40 U.S.C. SEC. 490, IN PERTINENT PART BY ADDING SUBSECTION (J) AS FOLLOWS: (J) THE ADMINISTRATOR IS AUTHORIZED AND DIRECTED TO CHARGE ANYONE FURNISHED SERVICES, SPACE, QUARTERS, MAINTENANCE, REPAIR, OR OTHER FACILITIES (HEREINAFTER REFERRED TO AS SPACE AND SERVICES), AT RATES TO BE DETERMINED BY THE ADMINISTRATOR FROM TIME TO TIME AND PROVIDED FOR IN REGULATIONS ISSUED BY HIM. SUCH RATES AND CHARGES SHALL APPROXIMATE COMMERCIAL CHARGES FOR COMPARABLE SPACE AND SERVICES, EXCEPT THAT WITH RESPECT TO THOSE BUILDINGS FOR WHICH THE ADMINISTRATOR OF GENERAL SERVICES IS RESPONSIBLE FOR ALTERATIONS ONLY (AS THE TERM "ALTER" IS DEFINED IN SECTION 13(5) OF THE PUBLIC BUILDINGS ACT OF 1959 (73 STAT. 479), AS AMENDED (40 U.S.C. SEC. 612(5)), THE RATES CHARGED THE OCCUPANT FOR SUCH SERVICES SHALL BE FIXED BY THE ADMINISTRATOR SO AS TO RECOVER ONLY THE APPROXIMATE APPLICABLE COST INCURRED BY HIM IN PROVIDING SUCH ALTERATIONS. THE ADMINISTRATOR MAY EXEMPT ANYONE FROM THE CHARGES REQUIRED BY THIS SUBSECTION IF HE DETERMINES THAT SUCH CHARGES WOULD BE INFEASIBLE OR IMPRACTICAL. TO THE EXTENT ANY SUCH EXEMPTION IS GRANTED, APPROPRIATIONS TO THE GENERAL SERVICES ADMINISTRATION ARE AUTHORIZED TO REIMBURSE THE FUND FOR ANY LOSS OF REVENUE.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 92-313 INDICATES THAT IT WAS THE INTENT OF CONGRESS TO PROVIDE BOTH FOR A MORE EXPEDITIOUS MANNER OF PROCURING NEEDED OFFICE SPACE FOR FEDERAL AGENCIES AND TO REQUIRE EACH AGENCY TO JUSTIFY THEIR INDIVIDUAL SPACE NEEDS WHILE LEAVING FULL CONTROL OVER EXPENDITURE OF MONIES FROM THE REVOLVING FUND WITH THE CONGRESS. THE DIRECTOR CONTENDS, HOWEVER, THAT THE PROVISION OF A $350 MILLION CEILING FOR LEASING FUNCTIONS IN GSA'S APPROPRIATIONS FOR FY 1975 (PUBLIC LAW 93- 381) AND GSA'S IMPOSITION OF A FREEZE ON MONIES APPROPRIATED TO THE JUDICIARY FOR NEW LEASES IS IN DIRECT CONFLICT WITH THE AUTHORITY GIVEN TO THE DIRECTOR, AOC, IN THE (THE ABOVE QUOTED PROVISION FROM) JUDICIARY'S APPROPRIATIONS ACT FOR FY 1975 (PUBLIC LAW 93-433) TO SET THE STANDARDS OR GUIDELINES THAT GSA IS TO FOLLOW IN FURNISHING SPACE AND FACILITIES TO THE JUDICIARY. IN THIS REGARD, THE RULE THAT LAWS ARE PRESUMED TO BE CONSISTENT WITH EACH OTHER IS PARTICULARLY APPLICABLE TO STATUTES PASSED AT OR ABOUT THE SAME TIME SINCE IT IS NOT TO BE PRESUMED THAT THE SAME BODY OF MEN WOULD PASS CONFLICTING AND INCONGRUOUS ACTS. 73 AM. JUR. 2D, STATUTES SEC. 254.

IN THE HEARINGS ON GSA'S APPROPRIATIONS FOR FY 1975 BEFORE THE SENATE COMMITTEE ON APPROPRIATIONS THE PURPOSE OF ESTABLISHING LIMITATIONS ON THE AVAILABILITY OF REVENUES IN THE REVOLVING FUND BY MAJOR FUNCTIONS PERFORMED BY GSA IS INDICATED IN THE FOLLOWING DISCUSSION:

MR. FRIEDLANDER. THE AMOUNTS THAT WE HAVE PRESENTED IN THIS BUDGET BEFORE YOU ARE FOR AUTHORIZATION FOR EXPENDITURE IN AN ANNUAL APPROPRIATION ACT. THEY TOTAL $980 MILLION. IF $980 MILLION IS AUTHORIZED FOR EXPENDITURE IN FISCAL YEAR 1975 MORE THAN THAT CANNOT BE EXPENDED FROM THIS FUND EVEN IF WE COLLECT MORE.

SENATOR MONTOYA. I UNDERSTAND THAT.

MR. FRIEDLANDER. BUT THE BREAKDOWN OF HOW IT IS SPENT IS PROPOSED IN THIS BUDGET IN THIS MANNER; FOR EXAMPLE, THE $364 MILLION IS FOR RENTAL PAYMENTS. BUT THERE IS NO LIMITATION ON EACH ONE OF THESE ENTRIES IN THE BUDGET AS THE APPROPRIATION LANGUAGE IS PROPOSED.

SENATOR MONTOYA. NO. IF YOU ARE TELLING THIS COMMITTEE THAT YOU ARE GOING TO SPEND $364 MILLION FOR RENTAL PAYMENTS AND YOU HAVE NECESSITY BECAUSE OF YOUR RENEGOTIATION OF SOME OF THESE LEASES ARE GOING FROM ONE EXPENSIVE LOCATION TO A CHEAPER LOCATION, EFFECTUATE A SAVINGS LET'S SAY OF $10 MILLION, DO I UNDERSTAND YOU TO SAY THAT YOU WILL EXPEND THIS SAVINGS OF $10 MILLION FOR OTHER EXPENSES WITHIN THE GSA BUDGET?

MR. FRIEDLANDER. WE MAY OR MAY NOT.

SENATOR MONTOYA. THAT IS THE POINT I WANT TO MAKE.

MR. ROUSH. WE MAY CHOOSE, SIR, IN SOME CASES TO REMODEL OR RENOVATE SPACE WHICH OTHERWISE WOULD BECOME UNUSABLE WITH THE SAVINGS THAT YOU MENTION. IT IS HIGHLY UNLIKELY IN THE REAL ESTATE MARKET AS IT EXISTS TODAY THAT WE WOULD COME UP WITH THAT TYPE OF A SAVINGS.

SENATOR MONTOYA. I AM JUST MAKING AN ASSUMPTION. WHETHER IT IS $1, $3, OR $100.

MR. ROUSH. IT IS POSSIBLE TO BE MOVED INTO ANOTHER AREA.

MR. TRIMMER. BUT ONLY WITHIN THE REAL PROPERTY MANAGEMENT AREA, MR. CHAIRMAN. IT COULDN'T BE USED, FOR EXAMPLE, FOR ADP FUNDINGS OR ANYTHING LIKE THAT.

MR. SAMPSON. IT HAS TO BE WITHIN THE PUBLIC BUILDING SERVICE.

HEARINGS ON H.R. 15544 BEFORE THE SENATE COMMITTEE ON APPROPRIATIONS ON THE TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS, 93D CONG., 2D SESS. AT 1710-1711 (1974).

IN ADDITION, THE LANGUAGE OF SECTION 3 OF THE PUBLIC BUILDINGS AMENDMENTS OF 1972 CREATING A "FUND" PROVIDES FOR A SINGLE ACCOUNTING METHOD BY A MERGER OF THE MONIES FROM INDIVIDUAL AGENCIES. THIS CENTRALIZED ACCOUNTING METHOD WAS RECOGNIZED IN THE FY 1975 APPROPRIATION ACTS FOR BOTH GSA AND THE JUDICIARY.

UNDERLYING THE ISSUES RAISED BY THE DIRECTOR, AOC, IS HIS CONCLUSION THAT TO ALLOW GSA TO, IN EFFECT, IMPOSE A MORATORIUM ON THE LEASING OF SPACE FOR THE COURTS RAISES THE CONSTITUTIONAL PROBLEM OF SEPARATION OF POWERS. SUFFICE IT TO SAY THAT IF THERE IS A SEPARATION OF POWERS PROBLEM IT WILL HAVE TO BE RESOLVED IN CONGRESS IN THE CONSIDERATION OF AN EXEMPTION FOR THE JUDICIARY. AS ALREADY POINTED OUT THE SUPREME COURT BUILDING IS EXEMPTED FROM GSA CONTROL. THE PRECISE SEPARATION OF POWERS ISSUE WAS RAISED AND DISCUSSED IN THE HEARINGS ON THE JUDICIARY'S 1975 APPROPRIATION WHEN CHIEF JUDGE BOE OF THE CUSTOMS COURT PURPOSELY LEFT OUT OF HIS BUDGET REQUEST A LINE ITEM FOR THE SUM OF $2,255,177 ASSESSED HIS COURT BY GSA UNDER PUBLIC LAW 92-313 FOR SPACE AND SERVICES. SEE HEARINGS BEFORE THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, ON H.R. 15404, 93D CONGRESS, PART I, PP. 42-49. SEE ALSO THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, 93D CONGRESS, ON THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY, AND RELATED AGENCY APPROPRIATIONS FOR 1975, PP. 21, 23-25, WHEREIN ON PAGE 24 THE FOLLOWING APPEARS:

JUDGE BOE. I PRESUME WE SHOULD HAVE PUT IT AS A LINE ITEM HERE. OUR COURT HAS TAKEN THE STAND, AND SOMETIMES YOU HAVE TO DO THAT WHICH YOU FEEL HONESTLY IN YOUR OWN HEART, THAT THIS IS AN ATTEMPT ON THE PART OF AN EXECUTIVE BRANCH OF GOVERNMENT NOW TO ASSUME JURISDICTION OVER ANOTHER BRANCH OF GOVERNMENT WHICH HISTORICALLY HAS BEEN SEPARATE AND DISTINCT. IT IS AN INTRUSION UPON THE DOCTRINE OF THE SEPARATION OF POWERS. THIS IS THE FEELING OF ALL OF THE NINE MEMBERS OF OUR COURT. THEY REQUESTED THIS STATEMENT BE MADE.

MR. WYATT. IF IT IS AN INTRUSION IT IS BY THE LEGISLATIVE BRANCH.

JUDGE BOE. THE ONLY THING IS THIS, CONGRESSMAN WYATT - WE ARE NOT DOUBTING AT ALL THE WISDOM OF CONGRESS TO SAY HERE IS AN ACCOUNTING SYSTEM AND WE WILL PROVIDE FUNDS, WHETHER YOU DO IT BY APPROPRIATING FOR THE MAINTENANCE OF OUR BUILDING AND GIVING IT TO GSA OR PAYING RENT AND LETTING IT GO THAT WAY. HOWEVER, GSA ASSUMES A DIFFERENT RELATIONSHIP. THEY ARE ALREADY ASSUMING A LANDLORD-TENANT RELATIONSHIP. I HAVE A LETTER FROM THE ADMINISTRATOR OF GSA TO OUR COURT IN WHICH HE SPEAKS ABOUT THE CONTINUATION, A PROFITABLE CONTINUATION, OR A LANDLORD-TENANT RELATIONSHIP. IF THE JUDICIARY IS TO BECOME A TENANT OF THE GSA I FEEL THERE WE ARE WALKING ON SOME VERY, VERY DANGEROUS GROUND, GENTLEMEN.

MR. CEDERBERG. WE PASSED THE LEGISLATION SO GSA HAS TO CARRY IT OUT.

WE RECOGNIZE THAT CONGRESS MAY APPARENTLY HAVE TRIED TO ALLEVIATE IN THE JUDICIARY'S 1975 APPROPRIATION JUDGE BOE'S CONCERN OVER GSA'S CONTROL OVER THE JUDICIARY BY DIRECTING THAT GSA MUST FOLLOW STANDARDS OR GUIDELINES PRESCRIBED BY THE DIRECTOR, AOC, IN OBTAINING SPACE FOR THE JUDICIARY. HOWEVER, AS MATTERS NOW STAND, THE CONGRESS HAS GIVEN GSA THE RESPONSIBILITY FOR THE ACTUAL CONSTRUCTION OR LEASE OF SPACE FOR THE JUDICIARY AND UNTIL SUCH TIME AS CONGRESS SPECIFICALLY EXEMPTS THE JUDICIARY FROM PUBLIC LAW 92-313, GSA WILL CONTINUE TO PERFORM THIS FUNCTION FOR THE JUDICIARY WITH THAT BRANCH OF THE GOVERNMENT BEING SUBJECT TO ANY APPROPRIATION RESTRICTION THAT MAY BE IMPOSED ON OR - WITH CONGRESSIONAL ACQUIESCENCE - BY GSA IN THE LEASING OF SPACE. IN OTHER WORDS, WE AGREE WITH GSA THAT THE LANGUAGE USED IN THE ABOVE QUOTED JUDICIARY BRANCH APPROPRIATION PROVISION CONCERNING "STANDARDS OR GUIDELINES" CANNOT BE INTERPRETED TO PERMIT GSA TO EXCEED THE RENTAL LIMITATION ESTABLISHED BY CONGRESS. NOR IN OUR OPINION, IN LIGHT OF THE LEGISLATIVE HISTORIES OF THE GSA AND JUDICIARY BRANCH APPROPRIATIONS FOR FY 1975, CAN SUCH LANGUAGE BE CONSIDERED AS PLACING CONTROL OF THE FUNDS APPROPRIATED IN SUCH PROVISION FOR RENTAL PURPOSE IN THE DIRECTOR OF THE AOC FOR THE PURPOSE OF REQUIRING GSA TO MAKE EXPENDITURES FOR RENTALS FROM THE FEDERAL BUILDING FUND IN EXCESS OF THE STATUTORY LIMITATION ON SUCH EXPENDITURES PRESCRIBED BY CONGRESS.

THE FIRST QUESTION IS ANSWERED ACCORDINGLY.