B-225343 O/M, JUN 26, 1987

B-225343 O/M, JUN 26, 1987

MISCELLANEOUS TOPICS - HOUSING/COMMUNITY - DEVELOPMENT - LOW-INCOME HOUSING - GOVERNMENT-INSURED LOANS - REPAYMENT PLANS - STATUTORY RESTRICTIONS DIGEST: 1. SECTION 502(C)(1) OF THE HOUSING ACT OF 1949, 42 U.S.C. SEC. 1472 (C)(1), GENERALLY PROHIBITS FMHA FROM ACCEPTING PREPAYMENT OF SECTION 515 (RURAL HOUSING LOANS), APPROVED AFTER DECEMBER 21, 1979, UNLESS IT TAKES ACTION TO OBLIGATE THE BORROWER TO UTILIZE THE ASSISTED HOUSING FOR THE SAME PURPOSE, FOR A PERIOD OF 15 YEARS OR 20 YEARS, DEPENDING UPON HOW THE PROJECT IS FINANCED. AT ANY TIME, SECRETARY OF AGRICULTURE MAY PERMIT OTHER USES OF PREPAID PROPERTY IF HE DETERMINES NO NEED EXISTS FOR SUCH HOUSING OR THAT FEDERAL OR OTHER FINANCIAL ASSISTANCE PROVIDED TO THE RESIDENTS OF SUCH HOUSING WILL NO LONGER BE PROVIDED. MISCELLANEOUS TOPICS - HOUSING/COMMUNITY DEVELOPMENT - LOW-INCOME HOUSING - COURT DECISIONS - GAO REVIEW 2. ALTHOUGH GILLANDERS V. SMITH, AN UNREPORTED 1986 DISTRICT COURT MEMORANDUM DECISION GRANTED A PRELIMINARY INJUNCTION TO ENJOIN PRIVATE DEFENDANTS FROM EVICTING LOW-INCOME TENANTS FROM CERTAIN SECTION 515 SUBSIDIZED APARTMENT BUILDINGS EVEN THOUGH LOANS WERE MADE BEFORE DECEMBER 21, 1979, THIS RULING DOES NOT CONSTITUTE A RULING ON THE MERITS OF THE CASE AND IS OF NO PRECEDENTIAL VALUE BUT WAS ISSUED TO LESSEN ECONOMIC HARDSHIP ON TENANTS PRIOR TO JURY TRIAL ON ISSUE OF WHETHER FMHA CAN REFUSE PREPAYMENTS. GAO MAY REPORT ON ISSUES RAISED BY CASE BUT SHOULD NOT EXPRESS OPINION ON ISSUES RAISED PRIOR TO DECISION. 3. UNDER THE SECTION 515 HOUSING PROGRAM, THE INCOME OF TENANTS WOULD NOT BE CONSIDERED WITH REGARD TO POST-1979 LOANS ONLY WHERE PREPAYMENT SOUGHT PRIOR TO 15 OR 20 PERIOD AND THEN ONLY TO DETERMINE IF NEED STILL EXISTS FOR SUCH HOUSING. APPROPRIATIONS/FINANCIAL MANAGEMENT - FEDERAL ASSISTANCE - GOVERNMENT- INSURED LOANS - REPAYMENT PLANS - ADVANCE PAYMENTS MISCELLANEOUS TOPICS - HOUSING/COMMUNITY DEVELOPMENT - LOW-INCOME HOUSING - COURT DECISIONS - GAO REVIEW 4. DESPITE THE GENERAL POLICY IN HOUSING ACT AGAINST DISPLACEMENT OF TENANTS, THERE IS NO SPECIFIC PROHIBITION ON ACCEPTING OR REQUESTING LOAN PREPAYMENTS THAT WOULD LEAD TO DISPLACEMENT OF TENANTS WHERE PREPAYMENT WOULD OTHERWISE BE AUTHORIZED. IT IF UNCLEAR IF CONFLICTING POLICY UNDER 42 U.S.C. 1472(B) (3), REQUIRING REFINANCING OR GRADUATION WHENEVER SECRETARY DETERMINES BORROWERS INCOME OR EARNING CAPACITY WOULD MAKE HIM ELIGIBLE FOR FINANCING FROM PRIVATE CREDIT SOURCES, APPLIES TO SECTION 515 LOANS.

REQUEST FOR LEGAL OPINION ON FARMERS HOME ADMINISTRATION'S (FMHA) ACCEPTANCE OF SECTION 515 LOAN PREPAYMENTS-- B-225343-O.M.:

THIS REFERS TO YOUR REQUEST FOR ASSISTANCE IN RESPONDING TO THE CHAIRMAN OF THE HOUSE SUBCOMMITTEE ON BANKING, HOUSING AND COMMUNITY DEVELOPMENT'S REQUEST FOR A LEGAL OPINION ON THE FARMERS HOME ADMINISTRATION'S (FMHA) PRACTICE OF ACCEPTING PREPAYMENTS OF RURAL RENTAL HOUSING LOANS APPROVED PRIOR TO DECEMBER 21, 1979, UNDER THE PROGRAM AUTHORIZED BY SECTION 515 OF THE HOUSING ACT OF 1949, 42 U.S.C. SEC. 1485. IN PREPARING THIS OPINION WE OBTAINED THE POSITION OF FMHA AS STATED IN A LETTER SENT TO GAO BY MICHAEL C. WILKINSON, DEPUTY ADMINISTRATOR, PROGRAM OPERATIONS, FMHA DATED FEBRUARY 18, 1987 (FMHA LETTER). YOUR QUESTIONS AND OUR RESPONSES FOLLOW:

1. "WHETHER THE HOUSING ACT OF 1949, AS AMENDED, PERMITS BORROWERS TO VOLUNTARILY REFINANCE OR PREPAY THEIR SECTION 515 LOANS WITHOUT BEING REQUESTED TO DO SO BY FMHA."

SECTION 502(C)(1) OF THE HOUSING ACT OF 1949, 42 U.S.C. SEC. 1472(C)(1), APPEARS TO GENERALLY PROHIBIT FMHA FROM ACCEPTING PREPAYMENT OF SECTION 515 (RURAL HOUSING) LOANS APPROVED AFTER DECEMBER 21, 1979, THE DATE OF ENACTMENT OF THE SECTION, UNLESS IT TAKES ACTION TO OBLIGATE THE BORROWER TO UTILIZE THE ASSISTED HOUSING FOR THE SAME PURPOSE, FOR A PERIOD OF 15 YEARS IF THE PROJECT IS NOT RECEIVING CREDITS FOR LOW-INTEREST LOANS UNDER 42 U.S.C. SEC. 1490A(A)(1)(B), SEC. 1490A(B) OR SECTION 8 HOUSING ASSISTANCE. THE RESTRICTIVE PERIOD IS EXTENDED TO 20 YEARS FROM THE DATE OF APPROVAL, IF AFTER DECEMBER 21, 1979, FOR ALL OTHER SECTION 515 LOANS. HOWEVER, PRIOR TO THE END OF THE 15 OR 20 YEAR PERIOD, THE SECRETARY OF AGRICULTURE MAY PERMIT THE PREPAID PROPERTY TO BE USED FOR OTHER PURPOSES IF HE DETERMINES:

"... THAT THERE IS NO LONGER A NEED FOR SUCH HOUSING AND RELATED FACILITIES TO BE SO UTILIZED OR THAT FEDERAL OR OTHER FINANCIAL ASSISTANCE PROVIDED TO THE RESIDENTS OF SUCH HOUSING WILL NO LONGER BE PROVIDED."

WHILE THE PREPAYMENT RESTRICTIONS DO NOT APPLY TO SECTION 515 CONTRACTS ENTERED INTO BEFORE DECEMBER 21, 1979, THE SECRETARY OF AGRICULTURE IS REQUIRED TO GIVE DISPLACED TENANTS "A PRIORITY FOR RELOCATION IN ALTERNATIVE HOUSING" ASSISTED UNDER SECTION 514 OR 515 PROGRAMS. U.S.C. SEC. 1472(C)(2). THIS PREFERENCE APPLIES ONLY WHERE THE CONTRACT IS PREPAID OR REFINANCED ON OR AFTER OCTOBER 8, 1980 AND IF DISPLACEMENT OCCURRED BECAUSE OF RENT INCREASES, A CHANGE IN USE OF THE HOUSING OR OTHER CHANGES CAUSED BY PREPAYMENT OR REFINANCING. ID.

THE FMHA LETTER AGREES THAT, "WITH APPROPRIATE NOTIFICATION TO FMHA," ALL LOANS MADE PRIOR TO DECEMBER 21, 1979, MAY BE PREPAID AT ANY TIME BARRING EXISTENCE OF A RESTRICTION IN A CONTRACT BECAUSE OF A SERVICING ACTION. IT NOTES THAT OTHER SECTION 515 LOANS MAY BE PREPAID AT THE OPTION OF THE BORROWER AFTER THE APPROPRIATE 15 OR 20 YEAR PERIOD HAS ELAPSED AND EVEN BEFORE THAT TIME:

"... IF THE STATE DIRECTOR DETERMINES THAT THERE IS NO LONGER A NEED FOR SUCH HOUSING AND RELATED FACILITIES TO BE SO UTILIZED OR THAT FEDERAL OR OTHER FINANCIAL ASSISTANCE PROVIDED TO THE RESIDENTS OF SUCH HOUSING WILL NO LONGER BE PROVIDED."

WE HAVE FOUND NO REPORTED DECISION INTERPRETING THE PREPAYMENT PROVISION. THE CASE YOU SUBMITTED TO US, GILLANDERS V. SMITH, (E.D. CALIF. CIV. NO. S-86-867 EJG), IS AN UNREPORTED MEMORANDUM DECISION ISSUED ON NOVEMBER 26, 1986, IN WHICH DISTRICT COURT JUDGE EDWARD J. GARCIA GRANTED A PRELIMINARY INJUNCTION TO ENJOIN PRIVATE DEFENDANTS FROM EVICTING LOW-INCOME TENANTS FROM CERTAIN APARTMENT BUILDINGS CONSTRUCTED AND SUBSIDIZED UNDER THE SECTION 515 PROGRAM AND TO ENJOIN FMHA FROM ALLOWING BUILDINGS TO BE WITHDRAWN FROM THE SECTION 515 PROGRAM BY ACCEPTING PREPAYMENT OF CONSTRUCTION LOANS. THE PRELIMINARY INJUNCTION DOES NOT CONSTITUTE A RULING ON THE MERITS OF THE CASE BUT WAS ISSUED BECAUSE THE COURT FOUND THAT THE ECONOMIC HARM THAT DEFENDANTS WOULD SUFFER THROUGH DELAYING THE EVICTION AND THE INCONVENIENCE THAT FMHA WOULD EXPERIENCE FROM DELAYING PREPAYMENT WOULD BE LESS THAN THE HARDSHIP THAT THE PLAINTIFFS WOULD SUFFER BY BEING REMOVED FROM THEIR HOMES IN A SITUATION IN WHICH THERE WAS FOUND TO BE NO SATISFACTORY ALTERNATIVE HOUSING AVAILABLE. THE INJUNCTION IS STILL IN EFFECT AND THE CASE IS CURRENTLY SCHEDULED FOR A JURY TRIAL ON NOVEMBER 30.

THE GILLANDERS CASE IS SIGNIFICANT BECAUSE THE LOANS AT ISSUE WERE MADE PRIOR TO DECEMBER 21, 1979 AND ARE NOT SPECIFICALLY SUBJECT TO THE 15 OR 20 YEAR RESTRICTIONS ON UTILIZATION OF THE PROPERTY. THE COURT FOUND THAT PLAINTIFFS HAD RAISED SERIOUS LITIGABLE QUESTIONS AS TO WHETHER THE FMHA HAS DISCRETION TO REFUSE PREPAYMENT OF THE SECTION 515 LOANS, AS TO WHETHER DUE PROCESS REQUIREMENTS HAD BEEN VIOLATED BY THE LACK OF NOTICE OR OPPORTUNITY TO BE HEARD GIVEN TO PLAINTIFFS PRIOR TO FMHA'S PREPAYMENT DECISION AND THE CANCELLATION OF THEIR RENT SUBSIDIES, AND AS TO WHETHER DEFENDANTS' ACTION HAD A DISCRIMINATORY IMPACT IN VIOLATION OF TITLE VII OF THE FAIR HOUSING ACT (42 U.S.C. SEC. 3604(B)). WHILE RECOGNIZING THAT THE FMHA REGULATION APPLICABLE TO PREPAYMENT OF SECTION 515 LOANS, 7 C.F.R. SEC. 1965.90, DOES NOT IMPOSE THE SAME PREPAYMENT CONDITION FOR LOANS APPROVED PRIOR TO DECEMBER 21, 1979 AS THOSE AFTER THAT DATE, PLAINTIFFS CONTENDED THAT FMHA HAD AUTHORITY TO REFUSE PREPAYMENT UNDER CIRCUMSTANCES PROVIDED UNDER 7 C.F.R. SEC. 1965.97 WHICH PROVIDES:

"THE ADMINISTRATOR OF THE FARMERS HOME ADMINISTRATION MAY, IN INDIVIDUAL CASES, MAKE AN EXCEPTION TO ANY REQUIREMENTS OF THIS SUBPART NOT INCONSISTENT WITH THE AUTHORIZING STATUTE IF THE ADMINISTRATOR FINDS THAT APPLICATION OF THE REQUIREMENT WOULD ADVERSELY AFFECT: (A) THE INTEREST OF THE GOVERNMENT; OR (B) THE IMMEDIATE HEALTH OR SAFETY OF THE TENANTS OR THE COMMUNITY. THE ADMINISTRATOR WILL EXERCISE THE AUTHORITY ONLY AT THE REQUEST OF THE STATE DIRECTOR. THE STATE DIRECTOR WILL SUBMIT THE REQUEST SUPPORTED BY DATA WHICH DEMONSTRATES THE ADVERSE IMPACT, IDENTIFIES THE PARTICULAR REQUIREMENT INVOLVED, SHOWS PROPER ALTERNATIVE COURSES OF ACTION, AND IDENTIFIES HOW THE ADVERSE IMPACT WILL BE ELIMINATED."

ALTHOUGH THE COURT'S MEMORANDUM STATED THAT THE COURT HAD NOT CONCLUDED THAT THE PLAINTIFFS HAD SHOWN A LIKELIHOOD OF SUCCESS ON THE QUESTION OF WHETHER FMHA HAD DISCRETION TO REFUSE PREPAYMENT REQUESTS ON PRE-1979 CONTRACTS, IT FOUND THAT THIS ISSUE WAS A FAIR QUESTION FOR LITIGATION AND WAS A SUFFICIENTLY SERIOUS QUESTION TO SUPPORT PRELIMINARY INJUNCTIVE RELIEF. THE EFFECT THAT PERMITTING PREPAYMENT OF THE SECTION 515 LOAN WOULD HAVE ON THE TENANTS, THE COMMUNITY AND THE GOVERNMENT PROGRAM WAS FOUND TO MEET THE REQUIREMENTS OF THE REGULATION IN THAT REPLACEMENT COST TO THE GOVERNMENT FOR EACH LOW INCOME HOUSING UNIT WOULD BE $41,000 AND THAT THERE WAS NO AVAILABLE ALTERNATIVE HOUSING IN THE AREA.

FMHA ARGUED THAT THE GOVERNMENT DID NOT HAVE THE DISCRETION TO REFUSE PREPAYMENT FOR PRE-1979 CONTRACTS AND THAT PLAINTIFFS WERE ATTEMPTING TO DO WHAT CONGRESS REFUSED TO DO, I.E., IMPOSE RESTRICTIONS ON PREPAYMENT OF LOANS APPROVED PRIOR TO THE EFFECTIVE DATE OF THE PREPAYMENT RESTRICTIONS. THE DEFENDANTS ALSO CONTENDED THAT THE COURT WAS MISREADING THE REGULATION WHICH WAS INTENDED TO PERMIT EXCEPTIONS THAT FAVOR PREPAYMENT AND NOT EXCEPTIONS THAT FAVOR TENANTS SEEKING TO CONTEST SUCH ACTION. THE COURT WAS UNCONVINCED BY FMHA'S INTERPRETATION OF THE REGULATION IN LIGHT OF A COMPREHENSIVE NATIONAL HOUSING POLICY GIVING A HIGH PRIORITY TO LOW INCOME HOUSING AND WHICH, AT 42 U.S.C. SEC. 1471(G), STATES THAT:

"THE PROGRAMS AUTHORIZED BY THIS SUBCHAPTER SHALL BE CARRIED OUT, CONSISTENT WITH PROGRAM GOALS AND OBJECTIVES, SO THAT THE INVOLUNTARY DISPLACEMENT OF FAMILIES AND BUSINESSES IS AVOIDED."

THIS MEMORANDUM DECISION, IN ITSELF, IS NOT OF ANY PRECEDENTIAL VALUE BECAUSE IT MERELY GRANTED A PRELIMINARY INJUNCTION PENDING LITIGATION OF THIS ISSUE AND SEVERAL OTHERS NOT RELEVANT TO YOUR QUESTIONS. FURTHERMORE, IT DID NOT REACH A CONCLUSION ON THE ISSUE OF WHETHER FMHA COULD REFUSE TO ACCEPT PREPAYMENT OF PRE-1979 SECTION 515 CONTRACTS. APPEARS TO US THAT FMHA IS PROBABLY CORRECT IN ITS INTERPRETATION OF THE LAW BECAUSE THE MORE SPECIFIC AND RECENT STATUTE LIMITING ITS DISCRETION IN REFUSING PRE-1979 PREPAYMENTS WOULD USUALLY PREVAIL OVER GENERAL STATUTORY PROVISIONS STATING AN INTENT TO PROVIDE LOW-INCOME HOUSING AND A GENERAL POLICY AGAINST DISPLACEMENT OF LOW INCOME TENANTS.

HOWEVER, UNDER GAO POLICY, WHILE WE CAN SUMMARIZE THE PROVISIONS OF THE HOUSING ACT AND REPORT ON THE ISSUES RAISED AND STATUS OF THE GILLANDERS CASE, ANY REPORT TO CONGRESS ON THIS ISSUE SHOULD NOT EXPRESS AN OPINION ON THE SPECIFIC ISSUES TO BE RESOLVED BY THE COURTS. SEE GAO REPORT MANUAL 5-17.

"2. IN ACCEPTING LOAN PREPAYMENTS, MUST FMHA CONSIDER THE INCOME OF TENANTS, NOT BORROWERS, IN ACCEPTING LOAN PREPAYMENTS OR REQUESTING BORROWERS TO REFINANCE SECTION 515 LOANS?"

WITH REGARD TO POST-1979 LOANS, THE ONLY CIRCUMSTANCE IN WHICH INCOME OF TENANTS WOULD BE CONSIDERED UNDER THE PREPAYMENT PROVISION WOULD BE WHEN THE SECRETARY WANTS TO PERMIT PREPAYMENT OF THE LOAN PRIOR TO THE EXPIRATION OF THE APPLICABLE 15 OR 20 YEAR PERIOD. PREPAYMENT PRIOR TO THE END OF SUCH PERIOD IS ONLY PERMITTED UPON A DETERMINATION "THAT THERE IS NO LONGER A NEED FOR SUCH HOUSING AND RELATED FACILITIES TO BE SO UTILIZED. ..." 42 U.S.C. SEC. 1472(C)(1).

THE SECRETARY WOULD CONSIDER INCOME OF TENANTS WITH REGARD TO PREPAYMENT OF PRE-DECEMBER 21, 1979 LOANS ONLY TO DETERMINE IF SUCH TENANTS:

"ARE DISPLACED DUE TO A CHANGE IN THE USE OF THE HOUSING, OR TO AN INCREASE IN RENTAL OR OTHER CHARGES, AS A RESULT OF SUCH PREPAYMENT OR REFINANCING. ..." 42 U.S.C. SEC. 1472(C)(2).

UNDER FMHA REGULATIONS, THE DISTRICT DIRECTOR IS REQUIRED TO SEND A REPORT TO THE STATE DIRECTOR ON EACH PREPAYMENT CASE THAT INCLUDES THE INCOME RANGE OF THE TENANTS PRESENTLY IN THE PROJECT. 7 C.F.R. SEC. 1965.90(D). NEITHER THE LAW NOR FMHA REGULATIONS REQUIRE CONSIDERATION OF THE INCOME OF THE BORROWERS IN PREPAYMENT CASES.

THE FMHA LETTER STATED THAT WHEN LOANS ARE ELIGIBLE TO BE PREPAID, FMHA IS REQUIRED TO ACCEPT PREPAYMENT AT THE BORROWER'S REQUEST. THEREFORE TENANT INCOME AND DISPLACEMENT MAY NOT BE CONSIDERED. HOWEVER, IN THOSE CASES IN WHICH THE STATE DIRECTOR IS REQUIRED TO DETERMINE WHETHER OR NOT TO ACCEPT PREPAYMENT, TENANT INCOME "AND THE CONCOMITANT RENT OVERBURDEN AND DISPLACEMENT ARE REQUIRED TO BE TAKEN INTO ACCOUNT."

"3. DOES THE HOUSING ACT OF 1949 PROHIBIT FMHA FROM ACCEPTING LOAN PREPAYMENTS OR REQUESTING FINANCING IF IT WOULD LEAD TO INVOLUNTARY DISPLACEMENT OF TENANTS?"

DESPITE THE GENERAL POLICY IN THE HOUSING ACT AGAINST DISPLACEMENT OF TENANTS, THERE IS NO SPECIFIC PROHIBITION ON ACCEPTING OR REQUESTING LOAN PREPAYMENTS THAT WOULD LEAD TO DISPLACEMENT OF TENANTS WHERE PREPAYMENT WOULD OTHERWISE BE AUTHORIZED. FMHA MAY NOT ACCEPT AN OFFER TO OR REQUEST PREPAYMENT OF SECTION 515 LOANS WITHIN THE APPLICABLE 15 OR 20 YEAR PERIOD WITHOUT OBLIGATING THE BORROWER TO CONTINUE UTILIZING THE FACILITIES FOR THE PURPOSES OF THE RURAL HOUSING PROGRAM. WHILE THIS WOULD PROVIDE SOME PROTECTION FOR TENANTS, THIS DOES NOT GUARANTEE THAT SPECIFIC TENANTS WOULD NOT BE DISPLACED PROVIDED THE HOUSING IS STILL UTILIZED IN THE PROGRAM. EVEN THIS REQUIREMENT CAN BE CIRCUMVENTED BY A FINDING, PRIOR TO THE END OF THE PERIOD, THAT SUCH HOUSING IS NO LONGER NEEDED.

FURTHERMORE, THERE IS A CONFLICTING POLICY UNDER 42 U.S.C. SEC. 1472(B)(3) THAT REQUIRES REFINANCING OR GRADUATION OF LOANS WHENEVER THE SECRETARY DETERMINES THAT THE BORROWER'S INCOME OR EARNING CAPACITY WOULD MAKE HIM ELIGIBLE FOR FINANCING FROM PRIVATE CREDIT SOURCES. THIS PROVISION DOES NOT APPLY TO "GUARANTEED" LOANS SO IT IS UNCLEAR AS TO WHETHER INSURED LOANS UNDER THE SECTION 515 PROGRAM WOULD BE SUBJECT TO THIS PROVISION. FMHA BELIEVES THAT SECTION 1472(B)(3) REQUIRES IT TO "REQUEST GRADUATION WHENEVER THE BORROWER'S CIRCUMSTANCES PERMIT IT. ..." HOWEVER, THE FMHA LETTER ALSO STATES THAT:

"... WE ARE TAKING THE POSITION THAT WE WILL ONLY MAKE THE REQUEST IF, AFTER GRADUATION OF THE LOAN, THE HOUSING WILL CONTINUE TO SERVE THE POPULATION WHICH THE ORIGINAL LOAN WAS INTENDED TO SERVE."

THE FMHA LETTER TAKES THE SAME POSITION AS WAS TAKEN WITH REGARD TO THE FIRST QUESTION AND STATED THAT VOLUNTARY PREPAYMENT MUST BE ACCEPTED UNDER CERTAIN CONDITIONS (LOANS APPROVED PRIOR TO DECEMBER 21, 1979 AND NOT SUBJECT TO RESTRICTIVE USE PROVISIONS BECAUSE OF SERVICING ACTIONS) AND MAY BE ACCEPTED IN OTHERS (WHEN THE APPROPRIATE 15 OR 20 YEAR RESTRICTIVE PERIOD HAS LAPSED, OR PRIOR TO THE END OF THE PERIOD IF THE STATE DIRECTOR MAKES THE NECESSARY DETERMINATIONS WITH REGARD TO UTILIZATION NEED OR FEDERAL OR OTHER FINANCIAL ASSISTANCE TO RESIDENTS OF SUCH HOUSING IS TERMINATED). IN NEITHER CASE IS INVOLUNTARY DISPLACEMENT OF TENANTS DIRECTLY CONSIDERED. HOWEVER, THE GILLANDERS CASE MAY EVENTUALLY LEAD TO A DIFFERENT RESULT.