“It’s An Interesting Case.”

At the hearing on March 26th on the Postal Service’s “Motion to Dismiss” Berkeley’s lawsuit to stop the sale Judge Alsup gave the USPS one week (until April 2nd, 2015) to decide whether to rescind its April, 2013 decision. Rooney, The Post Office attorney, made the claims that the USPS no longer had an immediate interest in selling the building or relocating services, and that in light of the passage of the rezoning ordinance in September, 2014, the Post Office would, in any case, have to reassess its intentions and its NEPA and NHPA analysis.

The Judge directly asked Rooney why, then, the USPS had not rescinded the letter, but did not get a clear answer. He also asked whether USPS would be willing to rescind the letter, but again did not get a direct reply. Alsup ultimately asked Rooney whether USPS wanted the week he was offering them to decide, and Rooney replied in the affirmative.

So…

If USPS decides to rescind the letter, the Judge’s strong implication would be that he would dismiss the suit.

If the USPS decides not to rescind the letter, the Judge would have to decide whose arguments were stronger; whether the suit should be dismissed anyway, as USPS wants, or whether it should be allowed to continue, as Berkeley would like. (That decision might take weeks, even months, as the various threads of the case are complicated and intertwined).

There is also the question of exactly what it would mean, from a legal and procedural point of view, if the USPS did rescind the letter. Would it mean they would be back to square one if they decided to try to sell the building again, e.g., would they have to go through a public comment period, do another NEPA and NHPA analysis, and negotiate another covenant to preserve the building’s historic artwork? Or would it just mean that all they would have to do is issue another “final determination” decision? Or something in between? No one, I suspect, even the judge, really knows.

As Judge Alsup remarked just before the hearing concluded..

“It’s an interesting case.”

For a longer writeup with background.

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