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