Maiatico v. United States

• Decision Date: 08 March 1962
• Docket Number: No. 16357.,16357.
• Citation: 302 F.2d 880
• Parties: Jerry MAIATICO and Matomic Operating Co., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

302 F.2d 880 (1962)

Jerry MAIATICO and Matomic Operating Co., Appellants, v. UNITED STATES of America, Appellee.

No. 16357.

United States Court of Appeals District of Columbia Circuit.

Argued January 18, 1962.

Decided March 8, 1962.

Mr. George P. Lemm, Washington, D. C., for appellants.

Mr. A. Donald Mileur, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark and Mr. Roger P. Marquis, Atty., Dept. of Justice, were on the brief, for appellee.

Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

The Government on January 4, 1961 filed in the District Court its complaint for the taking of certain property in the District of Columbia under power of eminent domain and for the ascertainment and award of just compensation for that taking. At the same time, the Administrator of General Services filed a Declaration of Taking, and deposited in the Registry of the District Court the sum of $9,900,000 as estimated just compensation. The Government's motion for surrender of possession of the property was granted, and appellants' challenge to the Government's claim of right to condemn was rejected. As to such rulings, another division of this court allowed an interlocutory appeal which had been certified pursuant to 28 U.S.C. § 1292(b).¹

The property in question, located at 1717 H Street, N. W. in the District of Columbia, is a large, eleven story, modern office building known as the Matomic Building, which the Administrator of General Services specified is to be used for the housing of federal agencies. In the District Court, it was conceded by the Government that the premises are not within the "taking area" as defined in the Public Buildings Act of 1959, 73 Stat. 479, 481,² which, the Government argued, does not apply to the acquisition of the Matomic Building. The Government agreed that if General Services "were going to build a building within those boundaries, a specific authorization would be necessary. We are not building a building."

Appellants countered that the Government had no authority to acquire the building for it had not obtained approval so to do "from the Committees on Public Works of the Senate and House of Representatives as it is required to do by the Independent Offices Appropriation Act, 1961, and the Public Buildings Act of 1959, 40 U.S.C.A. § 606(a)."³

The Government concedes that the respective Senate and House Committees on Public Works had held no hearings with reference to the acquisition of the Matomic Building and had not adopted resolutions approving its acquisition. The Government argues that such steps and such approval were not required, again asserting that the provisions of the Public Buildings Act of 1959 do not here apply. We turn accordingly to consideration of that Act and its possible applicability to our problem.

Congress passed the Public Buildings Act of 1959⁴ with the "primary purpose"⁵ of providing a "basic statute which would vest in the Administrator of General Services authority and responsibility for acquiring * * * public buildings as defined in the Act and acquiring the necessary sites * * * in connection therewith * * *."⁶ It was noted that over a period of 55 years legislation had become a "patchwork." The Administrator had been by-passed by various agencies. A thorough study had been made of various enactments which had previously pointed up the congressional plan, culminating in the congressional conclusion that authority in the public buildings field, with certain exceptions not pertinent here, should be centralized in the General Services Administration.

The Act 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. It was provided that no appropriation be made to acquire any building involving an expenditure in excess of $100,000 unless the acquisition be approved by resolutions adopted by the respective Committees on Public Works of the House and Senate.⁷ The Administrator was required to transmit to the Congress and secure advance approval of a prospectus of each proposed project including (1) a description of the building to be acquired, (2) its location and estimated cost and other details,⁸ and even as to an approved project, the Act imposed a strict limitation upon a possible increase of not to exceed 10% above the estimated maximum cost. In particular, as applicable to the District of Columbia, the Administrator was commanded to acquire real property exclusively within the area defined in the Act,⁹ and conformably generally to the L'Enfant plan for the "Federal City."

It will be seen that the Administrator of G. S. A. was made the executor of the congressional plan, with wide powers as to any project, once it be approved by the standing Committees on Public Works, but subject to their firm control.

Against that background of such recent legislation, especially as applicable to the District of Columbia, the House received the bill which was to become the Independent Offices Appropriation Act, 1961. Under the heading "General Services Administration," funds had been provided for 18 construction projects and 2 major renovations in accordance with prospectuses already approved by the House Committee on Public Works. Three projects for the District of Columbia included in the bill had not received advance approval from that standing committee. A point of order raised against those projects, calling for some $65,000,000, was sustained, and they were deleted. The bill then went to the Senate.

The Administrator proposed to the Senate Subcommittee on Appropriations an amendment which would allow for four District of Columbia projects, Federal Office Building Eight, $15,105,000, FOB Nine, $20,031,100, FOB Ten, $38,326,500 and a Court of Claims building, $6,375,000. He recommended in order to avoid further points of order that Congress recognize the principle that it "can appropriate funds in advance of the approval of projects by its Committees on Public Works, notwithstanding the provision of section 7(a) supra note 3 of the Public Buildings Act of 1959. Further, that by limiting the use of any funds so appropriated to projects thereafter approved by the said committees, it can achieve the significant purpose of the cited section 7(a)."¹⁰

The bill was thereupon amended. As amended, and including the four District of Columbia projects, the pertinent portion of the Act before us reads:

"GENERAL SERVICES ADMINISTRATION

* * * * * *

"CONSTRUCTION, PUBLIC BUILDINGS PROJECTS

"For an additional amount of expenses, not otherwise provided for, necessary to construct public buildings projects and alter public buildings by extension or conversion where the estimated cost for a project is in excess of $200,000 pursuant to the Public Buildings Act of 1959 (73 Stat. 479), including equipment for such buildings, $165,441,000, to remain available until expended: Provided, That the foregoing amount shall be available for public buildings projects, subject to approval of any such project by resolutions adopted by the Committee on Public Works of the Senate and House of Representatives, respectively, at locations and at maximum construction improvement costs (excluding funds for sites and expenses) as follows: Then follows a list of the included projects." 74 Stat. 431. (Emphasis added.)

Thus Congress appropriated $165,441,000, to be available for "public buildings projects," but subject to approval of "any such project" by the respective standing committees. Fully recognized and incorporated by reference were the provisions of the Public Buildings Act of 1959.¹¹ Only in accordance with its terms was the appropriated amount made available to General Services Administration. From the same Act the Administrator derived his duty and authority to expend the fund so appropriated.

The Government tells us on brief: "It is, of course, the 1961 appropriation on which the United States relies for its authority to take the building at 1717 H Street, N. W." We find no evidence that the Matomic Building acquisition was ever approved by the standing Committees on Public Works. We fail to find that the Administrator submitted to those committees the prospectus called for by the Public Buildings Act. The premises are outside the "taking area" defined in the Act. In short there is apparent no compliance with that Act or with the language of the appropriation to which the Government points and upon which it relies. The appropriating language provides an amount "necessary to construct public buildings projects and alter public buildings," nothing else. The specific projects are itemized to show their respective "maximum construction improvement costs (excluding funds for sites and expenses)." The Matomic Building is not listed. Four other District of Columbia projects are. The 1961 Appropriation Act does not sustain the Government's position.

The Government says that the appropriation to construct and alter public buildings yielded certain "saved funds." Questioned during argument, Government counsel conceded that if the stated cost of each project had simply been overestimated in the Administrator's request, the surplus funds would be classified as "saved."¹² Even so, the appropriation would not on that account be available without congressional approval to condemn the Matomic Building. Granting that the Administrator even under the Public Buildings Act of 1959 has been accorded great latitude, he still must comply with the Appropriation Act. The mere fact that some balance remains from funds appropriated for one purpose gives him no authority to expend that balance for an unauthorized purpose.

Lacking either authorization to acquire the Matomic Building or an appropriation allocable to provide just compensation for the owner, having gone outside the "taking area" within which his "exclusive" authority...