Neal Demby v. Richard S. Schweiker, in His Capacity as Secretary of the Department of Healthand Human Resources, American Academy of Family Physicians

WRIGHT, Before MacKINNON and American Academy Family Physicians, WALD, Circuit Judges. Houston, Hospital Texas, Memorial physicians six family practice who direct Opinion announcing judgment states, training programs medical in several court by filed Judge Circuit MacKINNON. and are collectively “Phy- referred to as the Opinion concurring specially filed Cir- Appellees, plaintiffs sicians.” in the district cuit Judge J. SKELLY WRIGHT. court, (the “Dentists”) are four dentists Dissenting opinion sponsible general dentistry training filed Circuit WALD. grams, also in several different states. court, training tion reduced the dental named defendants district Secretary of the Richard grants S. Schweiker share of under the Act to 2.67% Health Department of and Human Services grants, approximately the total mil- $2.7 (the respec- and the Secretary Department lion less than the ten mandated tively), as Acting and Dr. Robert Graham the statute.

Administrator the Health Resources Ad- immediately, filed suit Dentists com- Department, ap- do not ministration of allocation, plaining that this placing the peal. major portion of the onus with cut programs, express the dental violated II. terms of the ten requirement 786(a) of the Health Section Public Ser- section and should therefore be en- (the “Act”) Depart- vice Act authorizes joined. granted The district court the tem- grants operat- ment to to award institutions porary restraining sought by order the Den- ing “professional training program[s] in the 7,1981, July tists on July granted and on medicine,” 786(b) field family of au- and summary Dentists’ motion for judg- grants qualified programs oper- thorizes to judge ment. The district found that section ating “approved residency programfs] in the repealed suspended, had not been or general practice of dentistry” providing and Department and comply ordered the to with programs. financial aid to residents in such 5). the ten percent requirement. (J.A. 295g-6(a), (b). 786(c), U.S.C. Section appeal, pro- lies at the heart of this III. vides that: Physicians The the budget contend that Not 10 percent less than the amount of legislation rescission here is involved in ir- appropriated in year each fiscal to make 786(c), reconcilable with conflict section and grants under this section shall be made so must be held to have or suspended grants (b) available for under subsection view, pealed my that section. there is no [i.e., of this grants section to dental such necessary incompatibility between the residency programs]. appropriations reduction of the ten per- and 295g-6(c). 42 U.S.C. § 786(c), cent requirement of section and Following proposals by submitted therefore this contention is without merit. President in March 1981 the Congres- under outset, agree At the Physicians with the sional Budget Impoundment and Act of Congress can be no doubt that “[t]here 1402(a) (1976), Congress U.S.C. § suspend repeal acts]; could or own [its reduced the 1981 appropriation for all accomplish it could its purpose . $158,189,000. “health resources” Pub. bill, appropriations amendment to an or 97-12, L.No. 95 Stat. 53 The confer- Dickerson, otherwise.” United States v. report ence on Public Law read in 554, 555, 1034, 1035, conjunction report with the of the House L.Ed. power Congress Appropriations Committee, (and reveals to previously undo what it has done via parties agreement) are in effect of disputed action is not in this this measure was to reduce total Rather, case. facing the narrower issue us amount allocated to programs section 786 here is whether has in fact exer- $40,500,000 $37,450,000 from to for the fis- power respect 786(c). cised this to § cal year a reduction of million. $3.05 parties pieces draw on various bits In the wake of this reduction sec- legislative history, claiming each side tion appropriation, Department an- support position find for its question on this $36,450,000 nounced its intention to allocate in the words and acts of legislators and available funds to medical others. practice training programs under subsection (a) $1,000,000 remaining and the to dental implied Consideration of claims (b). under subsection This alloca- suspension confined first plain language

instance to the the laws son of the two statutes less than definitive. alleged Only to be in conflict. when the necessary inquire therefore do find it We language of two statutes leaves us in doubt any legislative history may pro- into they represent truly as to whether irrecon- picture vide a true legis- cilable intentions do we to such resort Turning report to the conference an history may upon lative bear credibly nouncing provisions compromised be issue at hand. “The courts are not at liber- tween the House and versions of the ty pick among congressional and choose Act, Rescission we find that all section 786 enactments, and when two statutes are ca- single are treated as a line coexistence, pable of duty is the item, “Family general dentistry medicine courts, clearly expressed congres- absent a training.” H.R.Rep.No.97- residencies and contrary, sional intention to the regard (June 1st Sess. 73 Mancari, each as effective.” Morton v. represents Because the conference 2474, 2483, 41 L.Ed.2d agreed the final statement of terms (1974) (emphasis added). “Only a clear houses, both next to the statute itself is repugnancy between the old . . . and the persuasive the congres most evidence of new” justify finding repeal will a that has sional intent. a reduction in the dol Since Georgia Co., occurred. v. Pennsylvania Ry. lar amount grants allocated to section 786 439, 456, 716, 725, 89 L.Ed. in says nothing regarding propor toto the grants tions in which those are to be award Reading the explicit terms of § ed, there is no conflict between the confer and the together, Rescission Act I agree report 786(c). ence and section with the Dentists that there is no irreconcil- able conflict between Physicians the two statutes. would have us provision The rescission probe Public Law 97- deeper legislative in our search for simply states that “of provided the funds hopes finding intent message. such a for ‘Health resources’ year for fiscal 1981 in They urge us to consider the various ver amended, Public $158,189,- Law as sions of the rescission bills considered 000 are plain rescinded.” The language of the House appropriations and Senate com the two statutes reveals no inconsistency, mittees, they suggest perhaps right — and this should be the inquiry end of the case, ly, but in any relevantly not —show typical the case. that the committees at no time intended to percent allocate ten or more of section 786 case, however, This complicated is by the funds to Physicians’ the Dentists.1 fact that Br. the Rescission scope Act’s is not 786; at 21-22. The confined to intentions of committees of section the statute encom- passes regarding subject, either house rescissions in at a certain least twelve differ- ent “health resources” where these intentions conflict with H.R.Rep. areas. See the ex No.97-124, law, press provisions 1st existing Sess. 72-73 cannot sim (1981). This leg- ply understandable failure to be read into a that statute is otherwise islate item-by-item compari- makes a direct subject. “Expressions silent on the of com- Physicians argue 1. The operated appropriation the conference on all bills. The Secre managers, being tary pointed 1, 1981, limited to the matters in dis- out in his letter of June to pute, authority would have exceeded their if Appropriations the Chairman the $3.74 million had been Committee, allocated to the dentist- that neither the House nor the Sen ry program only appropriat- because House required appropriation ate Bills included the ed $2.02 million and the Senate zero dollars. language necessary percent to overcome the 10 That claim is not available here. After Con- dentistry language set aside for and if such was gress agreed has to a conference it is too provided not in the final bill the full 10 parliamentary point late to raise the Dentistry” allocation to “General be re managers authority. exceeded their V Hinds’ quired. Secretary Letter of Schweiker to Sena Representatives Precedents of the House of Hatfield, tor June 1981. This constitutes a dentistry That allocation to the knowledgeable interpretation resulting program results from the failure of the Con- factual situation. gress repeal standing provision a of law that Finally, dealing requests appropria- parties proffered have mittees cannot be with statutes en- as equated tions evidence of intent statements TVA by Congress acted ...” v. a Secretary Senator and the found in the 153,191, 98 57 L.Ed.2d legislative not view record. I do these ex (1978) added).2 (emphasis pressions probative For example, a letter from Secretary allocations, supposing Even these congressional Schweiker to the conference produced essentially only at what a work- studying committee rescission urged stage process, sheet were to expressly insertion of language repealing or given weight approaching be that accorded suspending rule the ten in order actual language of the statute as enact- practice medical ed, I would still be unable conclude that to be could continue funded at contents intent to suspend their indicate an pre-rescission This letter levels. reiterated percent requirement. the ten In TVA express repealer included in the Presi Hill, supra, Supreme Court observed original proposal dent’s of March it will be a indeed on which day rare H.R.Doc.No.97-34, reprinted in 46 Fed.Reg. may of a court infer the substantive (March point Dentists statute even from actual decision to Congress’ adopt failure to the recom fund, fund, or not full express repealer mended of an intent case, particular program. spite In that preserve requirement. repeated construc- reject Dentists’ Br. at 15-16. conten destroy of a tion dam that would the natu- tion that of an officer views endangered species habitat of an ral Executive one who Branch —even had him view expressed by Appropri- the Senate self formerly Appro the Senate served on expenditure ations Committee of that priations Committee —constitute evidence appropriated funds did not violate the probative congressional of intent under the Species of the Endangered terms Act’s circumstances here. views are Such bind habitats, of tection such the Court held that ing upon neither nor the Congress courts in prohibitions applied the Act’s with full determining meaning of this congres to the dam force funded construction are, essence, They sional enactment. no project, and that therefore funds could subject more on the than free advice of how expended not be as the committee in- had chose, Congress might, achieve a partic if it tended.3 acceptance rejection ular end. Congress’ The Physicians grounds several offer of such little suggests counsel about its true distinguishing Physicians’ Hill. See Brief legislative only intent. The value of such However, at 17-22. contentions re- these interpretation by is as an an ad comment spond to considerations which the ministrative official. Court Hill be “particularly” found to significant Schmitt, under the facts that case. The remark upon of Senator 191, 437 U.S. at at 98 2300. They reliance, S.Ct. do which the Physicians place heavy frpm present not remove the case gen- that conference made “[w]e [the committee] eral rule that intention repeal no primary rescission in the care areas of own its acts residencies,” must be “clear and manifest.” medicine also has its Co., 188, United States v. Borden 308 legislative history. U.S. defects as This remark 198, 182, 188, S.Ct. 84 L.Ed. 181 was Congressional inserted into the Record Will, 200, 2. Cf. United States U.S. 222- sion Act conference itself and the here 471, 484-85, 101 S.Ct.. repeal, 66 L.Ed.2d 392 insufficient to indicate an intent to 1 do (1980), in history proffered which the Court alluded to floor not find the more attenuated reports repealer debate and only Physicians committee persuasive of their claim. plain concluding after “the that words of repeal the statute reveal an intention to ...” Hill, 3. See TVA v. at (emphasis added). Id. at Finding 101 S.Ct. at 484 “plain of both words” the Rescis- ever, passed after the rescission act had been that such comment does not constitute the House Cong.Rec. and Senate. S repealing per a law the ten require- cent (June 1981). Although the state- ment. any See Dentists’ Br. at 18-19. In Congress ments of a member of as inti- event, family practice medical training will mately acquainted with a bill as Senator still fully receive of the funds Schmitt was in this case are be con- available under section 786 in the affected remarks, very carefully, sidered his made year. bill, passage after cannot be light foregoing, In it seems considered to have influenced members’ barely necessary repeat frequently event, voting any decisions. the limited eminently stated and sound maxim that the nature of might Senator Schmitt’s remark policy against repeals by implication is of well support contradictory interpretations.4 particular purported force when the repeal- Standing between the record this case er takes the form of an appropriations en finding and a implicit repeal is one sim- actment. TVA v. U.S. ple fact: provi- did not amend the Ct. at 2299. While repeals S. of substantive specified sion which positions the relative law in appropriations accomplished bills are doctors and dentists under the Public every by Congress, session they are infre Health Service Act. repre- Section quent, and this is not such case. For here sents a legislative judgment considered the evidence does not even establish the general practice dentistry is deserving of at predicate application for the of the rule support least ten devoted to disfavoring repeal by implication,5 namely, training programs under section 786. The truly there is serious doubt as to the Physicians point are able to vitality of the substantive statute. It and executive comment to the effect imagine difficult any member of family practice training medical is deserv- Congress, ing having even one greater far attention than the corre- requirement sponding programs, dental the forefront of his con Physicians’ see sciousness, Br. at (quoting S.Rep.No.97-67, 25-26 consider he was vot (1981)), ing 1st Sess. section in as Cong. Code & p.-. Admin.News senting to the presented reduction as it was compelled Dentists, am agree to with how- report.6 conference family practice duties, Senator Schmitt’s legislative remark on appropri- one of which is the any correspond- made no reference to ation function. ing program funding decision to cut dental suspend operation 786(c). to the of examples § Thus the 6. There are numerous to be in found story statement enactments, told at best half the of including ap- the the books of various acts, committee’s propriations actions. explicitly repealing substan- provisions “appropriation” tive continuing funding of law. The Physicians’ analysis Hill, 5. The of TVA v. see the for the Tellico Dam in the Physicians’ perceive Hill, Br. at supra, fails to example. wake of TVAv. is such an effectively There, inquiry Congress provided two-tiered nature of the into that “notwithstand- implicit repeal. Although ing any U.S.C., provisions Hill chapter mentions the the of 16 35 or other, law,” absence of an “irreconcilable" conflict between TVA the was “authorized and an earlier act complete and a later act one as considera- directed” to 96-69, Tellico Dam. Pub.L.No. inquiry, 192, tion in the (1979). 437 U.S. at “ap- 98 S.Ct. at 93 Stat. 449 Such an 2300, my logic compels in propriation” view manifestly that this con- is much more than the placed provision funds; sideration be at its threshold. For if it mere of it is a substantive appears comparison from a appropriations of the enactments enactment in an dispose peal by bill. Because 1 possible Congress that it was appellants’ argument implied simultaneous- of ly regard effective,” “to each as finding any ... that lack the absence of colorable of conflict acts, will in the normal case end the claim of contradiction between the I two inquiry. Only exceptional Id. in unnecessary rely upon case find it to the further question fact, where serious doubt on explicit repealers, of “con- demonstrated such persists necessary flict” into should Congress capable it be to explicit repeal enter is institutionally the more difficult and passing when it so intends. In it should be terms can be investigation weights noted, however, treacherous priorities explicit of the that such by Congress attached respect appropriations to its various found with to other 2299; Posadas, at

IV. U.S. S.Ct. at supra, 296 at 352. This U.S. S.Ct. Therefore, it my is conclusion Con- may explicit criterion be satisfied without gress, passing Supplemental Appro- in statutory language; repeal otherwise priations Rescission Act of did not implied. would express be rather than repeal indicate an intent to or in § Moreover, view my may prop- the courts any operation. Appellants its way suspend erly reports examine the of House and Sen- point any have persuasive failed to evi- ate as well committees conference part dence of such intent on the deciding requisite whether from —as distinct of its constituent various showing” “affirmative has been made. members, committees, or other advisors. case, however, differing this I find that the to, possible interpolate While bemay it from figures adopted by the expressions legis- acts and of individual House, Senate, and conference committees repeal lators or committees desire point fail an unequivocal 786(c), interpolation require Therefore, accept appel- cannot presumption reversal consistently ap- lants’ contention that the rescission act plied Supreme similar by the Court in cases. passed repealed implicitly June 1981 judgment The court is district provision set-aside in Section separate therefore affirmed for the reasons Act, of the Public Health Service set opinion forth in the above and the fol- U.S.C. 295g-6 lowing opinion Judge Wright.7 category repeals implied second Judgment accordingly. where provisions of the two statutes are in irreconcilable conflict. The later statute WRIGHT, J. Judge, SKELLY Circuit implied repeal constitutes of the earlier concurring specially: one they to the extent conflict. TVA I agree by Judge result reached Hill, v. supra, 437 U.S. at 98 S.Ct. at MacKinnon, but not for the reasons stated 2300; Posadas, supra, U.S. opinion. his case, present however, S.Ct. at 352. In It is a rule statutory cardinal construc can rescission act be construed to be tion repeals by implication are not consistent with the earlier ten set- favored, but there are two provision. well settled cate aside gories repeals. of implied TVA v. Neither two alternative tests for 153, 190, 2279, 2299, 98 S.Ct. 57 L.Ed.2d repeals by implication has been satisfied in Mancari, 117 (1978); Morton v. 417 U.S. this case. subsequent action of Con- 535, 550, 2474, 2482, L.Ed.2d 290 gress supports Apparently this view. un- (1974); Bank, City Posadas Nat'l certain expressed whether had a “clear 497, 503, 80 L.Ed. 351 and manifest” intent Section 786(c) in legislation, its June 1981 rescission First, Congress provided if August 13, “affirma- Congress 1981 explicitly tive of an showing repeal” to adopted statutory intention provision repealing Sec- statute, earlier if and its is 786(c) intention “clear tion Budget for the future. Omnibus manifest,” then the will recog- 1981, courts Reconciliation ofAct Pub.L.No.97-35 Hill, nize an implied repeal. v. supra, 2742(c), (1981). TVA 95 923 § Stat. very 1981). even within the Congress’ suspension bounds of the Rescission Just as of the Pub.L.No.97-12, Act here in issue. See requirements 95 Stat. Endangered Species of Act (rescission 57 of student financial assistance subsequent (see to the decision in HUI note 6 program explicitly suspended application supra) Supreme cannot alter the Court’s Higher Act). Education proper statutory nouncement of the rules of construction to be followed the federal Subsequent 7. to the commencement of this ac- courts, Congress’ repeal of the ten tion, repealed explicitly section was with quirement in section neither the affects respect years by to future fiscal the Omnibus analysis present nor the conclusion in the case. Budget 1981, Reconciliation Act of Pub.L.No. 97-35, 2742(c), 357, 13, (August 95 Stat. § 923 514

WALD, legislative Judge, dissenting: history Circuit The Appropria- is with replete tions Act3 statements question The critical in this case is wheth- dentistry residency program should be Congress 786(c)’s er suspend intended to at a level prescribed by funded short for allocating grants to formula 786(c)’s set aside formula. general practice dentistry medicine and res- report accompanying The Reag- President idency programs passed when it the Supple- rescissions, an’s recommended for Act, Appropriations mental and Rescission example, explained that the decision to cut Pub.L.No.97-12, 1981, 5, (June 95 14 Stat. funding dentistry the entire program (the “Act”). See v. 1981) United States “specifically the Administration’s Will, 200, 471, reflect[s] 221-22, 449 U.S. 101 S.Ct. supply assessment the current of den- 483-84, Roe v. Ca- (1981); 66 L.Ed.2d 392 professionals tal adequate.” health sey, 46 829, (3d 1980).1 623 F.2d 836 Cir. Since Fed.Reg. (1981). 18513 Report plain language isAct consistent explained totally its any decision eliminate dividing formula funds be- dentistry programs, program tween the two in simi- appro- it is both priate lar necessary terms: “The to examine the Committee believes this is Act’s legislative that, a low-priority needed, if history to congres- determine case, sional intent.2 In this would be better funded at the overwhelm- level or State weight ing sources, of that history supports private through the con- and has terminated S.Rep.No.67, clusion that Congress sought suspend it.” Cong., 1st Sess. operation of the set aside. I therefore dis- 227 Report, Even the House sent. recommended continuation dentistry disfavoring 1. Under the canon of construction HEALTH RESOURCES ADMINISTRATION course, repeals implication, of courts are HEALTH RESOURCES congressional (cid:127)reluctant to read one enactment (RESCISSION) implicitly repealing suspending as an earlier provided the funds for “Health re- Of 200, Will, one. See United States v. 449 U.S. year 1981 in Public Law sources” fiscal 221-22, 471, 483-84, 101 66 S.Ct. L.Ed.2d 392 96-536, amended, $158,189,000 as are re- (1980); Valley Authority Tennessee v. 437 scinded. 153, 189, U.S. 98 S.Ct. 57 L.Ed.2d 14, 5, Pub.L.No.97-12, (June Stat. 53 95 (1978); Mancari, 535, 117 Morton v. 417 U.S. appropriate Con- It is therefore to consider 549, 2482, 2474, (1974); 94 S.Ct. 41 L.Ed.2d 290 intent, gress’ reports expressed as in committee 497, City Bank, Posadas v. National 296 U.S. legislative history. and other 503, 352, 80 L.Ed. 351 But artificially 3. no restrict this see reason this ignore does not mean courts should history inquiry legislative into Confer- clear evidence of intent to override Indeed, Report. Judge MacKinnon’s un- ence prior Will, law. See United States v. 449 U.S. legislative willingness, to review all relevant 223-24, at question 101 at S.Ct. 484-85. The 510-511, history, maj. op. at contravenes legislative ultimately intent is one to be re pronouncement the Court’s most recent termining on de- by applying accepted solved “the rules for as Congress repealed whether has certaining that intention.” v. Posadas National prior by implication. In United States law v. Bank, City 296 U.S. at 56 S.Ct. at 352. Will, S.Ct. L.Ed.2d Mancari, See Morton v. at U.S. (1980), range full the Court looked at the S.Ct. 2481-82. history legislative of traditional sources of be- concluding implicitly fore had clear, suspended providing pay language If the of the Act there statute automatic were judges. attempt distinguish raises for would be no need to history. its look to “ plain Bailey, Will a case in which words F.2d ‘the McCord (D.C.Cir.1980), denied, statute reveal an intention to 614-15 983, cert. the_ ...,’” (1981); maj. op. (quoting 511 n.2 L.Ed.2d United Will, States, Albright v. States United 631 F.2d Ass’n, (D.C.Cir.1980); (emphasis supplied)), Evening to acknowl- at edge fails Zerilli v. News statutes, (D.C.Cir.1980). only that Will involved four 628 F.2d But the Act plain language hardly could which included itself be less clear as to the contin one indi- pay cating raises. operation 786(c). merely an intent to automatic ued provides: The Act statutes, regard other three the With to the reports and Will to committee looked Court legislators to discern statements half, dentistry family residency and thereby medicine program, cut its allocating considerably programs Report. less than would be Conference required is, percent set aside. under the committees after mandate of conference H.R.Rep.No.29, Cong., all, 97th 1st Sess. between the two to resolve differences (1981).4 212-13 Thus while the Presi- Houses, ques- out and not to reach re-decide accompanying its proposed dent’s bill and agree- tions on which both Houses are express report specifically mentioned (here, nonapplication ment the of the set formula,5 suspension percent of the ten both aside) way differences in a that decide Congress explained Houses of their rescis- is inconsistent with the thrust of both specific affecting programs sion actions as (here dentistry Houses’ actions to raise inconsistent with way totally in a that was funds to million when the House had $3.7 set application the continued aside. nothing). voted million and the Senate $2 Manual & Rules of See Jefferson’s unequivocal counterweight As a to these Representatives, House of H.R.Doc.No. statements of how the House and Senate Cong., (1979) 96th 1st 595-96 family wanted funds divided between the Sess. Manual, dentistry programs, (Rule XXVIII); medicine and Senate S.Doc. opinion ambigu- No.l, (1979) MacKinnon’s relies on an Cong., 96th 1st 54-55 Sess. Re- (Rule ous table contained in the Conference XXVIII). Although as a court we port. H.R.Rep.No.124, See 97th Cong., 1st responsibility enforcing have no Con- Sess. 72 Noting that this table rules, gress’ we can look to them as evi- single has a line item for undifferentiated what a conference committee dence of family general dentistry pro- medicine and meant Here there no reason to to do. is grams, it concludes Conference believe that chose to act Committee go Committee must have intended to back customary outside the bounds of its authori- to the ten formula and thus to ty; certainly gave sign no it was repudiate the previously actions taken Indeed, doing regard every so.® both House and Senate. other program health resources included in programs the same Considering the amendment as congressional actions here, dispute preceded the Conference de- conferees either reached Committee’s liberations, compromise I do not see how such an in- between the House and Senate reasonably agreed ference can be drawn from the bills or else to the recommendations barebones listing single figure of a dollar by acceding appel- of one House.6 Yet recommendations, Report’s Senate, 4. Under the House House and under which 786(c) dentistry program would have technically received “substantive” law that lies outside $2,025,000 $30,475,000 of the total allocated to jurisdiction. their See Jefferson’s Manual & family dentistry residency medicine and and Representatives, Rules of the House of H.R. training. H.R.Rep.No.29, Cong., 97th 1st Doc.No.403, Cong., 96th (1979) 1st Sess. 525 Thus, (Rule XXI, Sess. 211 2); Manual, cl. S.Doc. funding, have received 6.6 of the total (1979) (Rule XVI, 1st Sess. No. considerably required less than the 10 cl. 786(c). under § explanatory 7. The table in the Conference Re- proposed legislation specifi- 5. The President’s port understanding sets forth the conferees’ cally provided that the funds for health re- $22,745,000 $26,080,000 gap to how be- notwithstanding sources “shall be available tween the House and Senate’s recommended limitations of sections language rescissions should be resolved. The Fed.Reg. Public Health Service Act.” suggests remaining of $3,335,000 18514(1981). according was allocated to the By way contrast, specific visions of the House bill. directives Reports contained in the following House and Senate expands table on the Confer- dentistry how that, to allocate funds presentation, between the showing ence Committee’s medicine serve to over- adding back funds that the House would any presumption appropriation come rescinded, stayed have the conferees within the committees range observed the internal rules of the of the two Houses’ differences. 516 interpretation just

lees’ the grams separately conferees con- as the Houses had residency sidered the two programs done, as a yielded the family Senate on the single budget item, Judge MacKinnon’s program by medicine the restoring mil- $8 opinion assumes when the conferees deleted, compro- lion the House had particular programs, they those reached de- dentistry program on the mised mil- $1 parted from their standard routine and set- lion, midway a figure between the $0 and disagreement tled their over a total rescis- figures by million voted the Senate $2 $4,050,- the programs sion for two between They reported agree- House.9 then the $10,025,000 by 000 and agreeing item, single ments under a line perhaps $3,050,000 rescission. This in makes itself programs because the two are treated to- little sense. But MacKinnon’s as- gether authority for budget purposes.10 yields sumption astonishing more even interpretation by This is supported the sults when percent ap- the ten formula is piece only legislative history we have plied single the appropriation mil- $37 meaning the about the Conference Re- program lion and the dentistry the —which In port. explaining the Com- Conference sought Senate to terminate and the House fact, actions after mittee’s Senator sought ($2,025,000)— cut 50 Schmitt, the chairman of the Labor-HHS- up ends with its original million almost $4 Ap- Education of the Senate Subcommittee intact, $305,000,8 minus a mere while propriations Committee and a Senate con- physicians program the Senate left —which feree, stated: “We made no rescission in percent funding at 100 and the House cut primary family care areas of only medicine per- shoulders 90 —now ” Cong.Rec. (dai- cent of the total residencies. . . rescission. I believe a far . S5801 plausible more interpretation ly 1981) ed. (emphasis supplied), is that June conferees fact pro- considered the two thereby his indicating understanding that Conference family program. medicine Such fine House planning Local health cuts, however, tuning budget apparent is not —15,000,000 —21,000,000 agencies —24,000,000 in the Committee’s resolution of other differ- team Dental health ences between House and Senate versions —500,000 —1,000,000 grants —750.000 contrary, supra. of Act. See note On capitation Public health agreements pattern the Committee’s yielding tions, follow —2,125,000 grants —4,225,000 —0 to the or House Senate recommenda- Health administration —2,250,000 any event, —3,000,000 —1,500,000 splitting difference. strong Public health Senator Schmitt’s remarks offer a basis traineeships —500,000 —250,000 —0 choosing among the for combinations of rescis- Health administration sions are consistent with the view that the traineeships —1,000,000 —1,250,000 —1,500,000 stayed scope Conference Committee within the Family medicine/ of the two Houses’ differences. dentistry General and training —Family medicine —3,000,000 —0 programs 10. Most of the listed in the Confer- dentistry —General —2,025,000 4.050.000 Report’s ence have table their own “line items” —3,050,000 —10,025,000 4.050.000 authority. U.S.C. General internal 295f(e)(4) (public grants); capitation health § medicine and pediatrics —1,500,000 (health 42 U.S.C. § 295h-2 administration Nursing grants); 295r(c) (public § 42 U.S.C. health training —3,000,000 Advanced —0 traineeships); 294s(c) (health 42 U.S.C. § ad- practi- Nurse traineeships); 295g-4 ministration § U.S.C. tioners —3,000,000 —0 Traineeships (general —3,000,000 pediatrics); internal medicine and —0 support (advanced nursing training); -370,000 Program —750,000 U.S.C. 2961 (nursing practitioners); U.S.C. 296m formula, 8. dentistry Under the set aside (The (nursing traineeships). U.S.C. § shoulder year fiscal 1980 authorizations listed in the $3,050,000reduction. year were Code under carried forward to fiscal Pub.L.No.96-536, 2d Sess. course, kept Of the Committee could have (1980).) general medicine and den- within differences the bounds of its mandate to resolve tistry residency are the by funding dentistry program grams table listed in the that are treated to- House, $2 million recommended gether budget authority purposes. shaving $1 while off million the total 191, Here, however, at million rescission would come Con- $3.05 wholly dentistry program. from the As gress Appropria- knew full well that chairman the Labor-HHS-Education tions Act dealt with revisions and Subcommittee, spe- Senator Schmitt had priorities, very subject same matter ad- compromise cial concern with the struck 786(c)’s dressed set aside formula. § conferees, and his remarks offered a pro- The President’s recommendations comprehensive account health re- significant posed “a dramatic and shift programs sources conferees Senate Federal spending priorities.” S.Rep.No. Obviously, had saved from the axe. 67, Cong., 97th 1st Through- Sess. his statement is not conclusive evidence of Reports, out the House and Senate this congressional intent, but neither can it be shift in priorities, resulting and the need to totally ignored contemporaneous as the ex- comparatively importance evaluate pression of the Senate Conference Commit- tee member involved with department most and know- within each and divi- ledgeable program about the items involved sion, was the focus of considerable atten- Indeed, in this case.11 Senator Schmitt’s See, (no e.g., tion. id. at 265 rescission reading Congress’ priorities was con- preschool warranted in incentive grant pro- just firmed two and a half months later gram handicapped); id. at 276-77 when Congress explicitly repealed the same (supplemental appropriation grant for Pell 786(c) and statutory added a directive to light not warranted in the of sub- Secretary of Health and Human Serv- stantial pro- reductions in other educational give ices to highest priority medi- grams); H.Rep.No.29, 97th Cong., 1st programs. cine Pub.L. See No. 97th (1981) (funding Sess. 190 engineering Cong., 1st Sess. 923 (Aug. Stat. feasibility pro- studies alternative fuels 13,1981).12 Indeed, longer necessary). duction no Finally, I any impediment do not find priority low status of the dentistry program reaching this result in the canon of statuto- specifically was report addressed ac- ry cautioning against construction repeals companying the President’s recommenda- by implication, especially tions, (1981), Fed.Reg. see 46 and in Valley bills. Authority See Tennessee S.Rep.No.67, report. Hill, 1st 226-27 Sess. And (1978); 57 L.Ed.2d 117 United States v. although Report the House does not contain Will, U.S. 101 S.Ct. at 483- language, specific similar does itemize the 84. The concern reflected in TVA —that amounts to be subtracted from each Members will not ordinarily expect ap- an gram. In the context of a rescission bill propriations act to alter substantive law— explicitly sought sharply alter apply TVA, does not here. the Court spending priorities, reports gave these Con- refused Congress’ to find that action in gress fair Appropriations notice that approving funding for a specific dam Act prior would indeed affect measures in project created implication exception an authorizing legislation other comprehensive to a which ordinari- legislative scheme for protecting ly governed endangered species. funding priority the relative See Ten- Valley nessee Authority v. specific programs. disagree Judge sugges- Secretary

11. I 12. I MacKinnon’s note too that the of Health & (HHS) interpreted tion that Senator Schmitt’s comments should Human Services ence the Confer- accepted any do, and, not be evidence of action as I Committee until en- court, unwillingness joined by obligated MacKinnon’s the district all of the appropriations except consider ference puzzling phy- Senator Schmitt’s account of the $1 Con- million to the proceedings especially program, though previous- Committee’s sicians ly even he had light of his reliance on an am- written Senate Committee chairman biguous clearly express repeal table in that to rebut the of the set aside would be expressed Appropriations necessary views of the two to do so. Committees. panel’s judg-

I therefore dissent from the overruling Secretary’s interpreta-

ment

tion of the Act as to these applied

grams. CITIZEN, National

PUBLIC Women’s Network, al., Appellants,

Health et

DEPARTMENT OF HEALTH AND SERVICES,

HUMAN et al.

No. 81-1896. Appeals,

United States Court of

District of Columbia Circuit.

Nov. MacKINNON,

Before ROBB and ED- WARDS, Judges. Circuit Dissenting opinion filed Circuit HARRY T. EDWARDS.

JUDGMENT PER CURIAM.

This cause came on to be heard on the record on appeal from the United States District Court for the District Columbia argued and was counsel. September six-year On after a research, period of meetings Food Drug (“FDA”) publish Administration ed final regulations requiring “patient (“inserts”) package given inserts” to be out widely drugs, with ten used dis are

Case Details

Case Name: Neal Demby v. Richard S. Schweiker, in His Capacity as Secretary of the Department of Healthand Human Resources, American Academy of Family Physicians

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 15, 1981

Citation: 671 F.2d 507

Docket Number: 81-1862

Court Abbreviation: D.C. Cir.