Demby v. Schweiker

• Decision Date: 15 December 1981
• Docket Number: No. 81-1862,81-1862
• Citation: 671 F.2d 507
• Parties: Neal DEMBY, et al. v. Richard S. SCHWEIKER, in his capacity as Secretary of the Department of Healthand Human Resources, et al., American Academy of Family Physicians, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 507

671 F.2d 507

217 U.S.App.D.C. 1

Neal DEMBY, et al. v. Richard S. SCHWEIKER, in his capacity as Secretary of the Department of Healthand Human Resources, et al. American Academy of Family Physicians, et al., Appellants.

No. 81-1862.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 30, 1981.

Decided and Amended Dec. 15, 1981.

Stephen E. Lawton, Washington, D. C., with whom Judith L. Harris, Jack N. Goodman and Elizabeth B. Carder, Washington, D. C., were on the brief for appellants. Eugene Tillman, Washington, D. C., also entered an appearance for appellants.

James D. Miller, Washington, D. C., with whom George S. Branch, Washington, D. C., was on the brief for appellees, Demby, et al.

Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth, Kenneth M. Raisler, Scott T. Kragie and Whitney Adams, Asst. U. S. Attys., Washington, D. C., were on the brief for appellees, Schweiker, et al.

Before WRIGHT, MacKINNON and WALD, Circuit Judges.

Opinion announcing the judgment of the court filed by Circuit Judge MacKINNON.

Opinion concurring specially filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge WALD.

MacKINNON, Circuit Judge:

This case finds doctors pitted against dentists in a contest over their respective entitlements under section 786 of the Public Health Service Act, 42 U.S.C. § 295g-6 (1976). The impetus for this litigation was provided by Congress' decision, following budget recommendations by the President, to pare some $3,050,000 from appropriations for the support of medical and dental training programs. Supplemental Appropriations and Rescission Act of 1981, Pub.L.No. 97-12, 95 Stat. 14 (June 5, 1981). The case presents a question of statutory interpretation, to wit: did Congress, in rescinding a portion of its appropriation for medical and dental training under the Public Health Service Act, implicitly accomplish the repeal of a substantive provision of that Act, § 786(c), which requires that not less than ten percent of the total amount appropriated for family medicine and general dentistry training programs be made available to qualifying dental programs?

We hold that the statutory requirement that no less than ten percent of the funds expended under § 786 of the Public Health Service Act be allocated to general practice dental training programs was not repealed but continued in force, and that therefore the Department of Health and Human Services erred in originally allocating only $1,000,000 (or 2.67 percent) of available funds to such programs. Circuit Judges Wright and MacKinnon vote to affirm the judgment of the district court for reasons set forth in their respective opinions.

I.

Appellants, intervenors below, are the American Academy of Family Physicians, Memorial Hospital of Houston, Texas, and six physicians who direct family practice medical training programs in several states, and are referred to collectively as the "Physicians." Appellees, plaintiffs in the district court, are four dentists (the "Dentists") responsible for general dentistry training programs, also in several different states. The named defendants in the district court, Richard S. Schweiker as Secretary of the Department of Health and Human Services (the Secretary and the Department respectively), and Dr. Robert Graham as Acting Administrator of the Health Resources Administration of the Department, do not appeal.

II.

Section 786(a) of the Public Health Service Act (the "Act") authorizes the Department to award grants to institutions operating "professional training program(s) in the field of family medicine," and § 786(b) authorizes grants to qualified programs operating "approved residency program(s) in the general practice of dentistry" and providing financial aid to residents in such programs. 42 U.S.C. § 295g-6(a), (b). Section 786(c), which lies at the heart of this appeal, provides that:

Not less than 10 percent of the amount appropriated in each fiscal year to make grants under this section shall be made available for grants under subsection (b) of this section (i.e., for grants to dental residency programs).

42 U.S.C. § 295g-6(c).

Following proposals submitted by the President in March 1981 under the Congressional Budget and Impoundment Act of 1974, 31 U.S.C. § 1402(a) (1976), Congress reduced the 1981 appropriation for all "health resources" by $158,189,000. Pub.L.No. 97-12, 95 Stat. 53 (1981). The conference report on Public Law 97-12, read in conjunction with the report of the House Appropriations Committee, reveals (and the parties are in agreement) that the effect of this measure was to reduce the total amount allocated to section 786 programs from $40,500,000 to $37,450,000 for the fiscal year 1981, a reduction of $3.05 million.

In the wake of this reduction of the section 786 appropriation, the Department announced its intention to allocate $36,450,000 of the available funds to family medical practice training programs under subsection (a) and the remaining $1,000,000 to dental programs under subsection (b). This allocation reduced the dental training program share of grants under the Act to 2.67% of the total grants, or approximately.$2.7 million less than the ten percent mandated by the statute.

The Dentists filed suit immediately, complaining that this allocation, placing the major portion of the budget cut onus with the dental programs, violated the express terms of the ten percent requirement in section 786(c) and should therefore be enjoined. The district court granted the temporary restraining order sought by the Dentists on July 7, 1981, and on July 17 granted the Dentists' motion for summary judgment. The district judge found that section 786(c) had not been repealed or suspended, and ordered the Department to comply with the ten percent requirement. (J.A. 5).

III.

The Physicians contend that the budget rescission legislation involved here is in irreconcilable conflict with section 786(c), and so must be held to have suspended or repealed that section. In my view, there is no such necessary incompatibility between the reduction of appropriations and the ten percent requirement of section 786(c), and therefore this contention is without merit.

At the outset, I agree with the Physicians that "(t)here can be no doubt that Congress could suspend or repeal (its own acts); and it could accomplish its purpose by an amendment to an appropriations bill, or otherwise." United States v. Dickerson, 310 U.S. 554, 555, 60 S.Ct. 1034, 1035, 84 L.Ed. 1356 (1940). The power of Congress to undo what it has previously done via legislative action is not disputed in this case. Rather, the narrower issue facing us here is whether Congress has in fact exercised this power with respect to § 786(c). The parties draw on various bits and pieces of legislative history, each side claiming to find support for its position on this question in the words and acts of legislators and others.

Consideration of claims of implied repeal or suspension is confined in the first instance to the plain language of the laws alleged to be in conflict. Only when the language of two statutes leaves us in doubt as to whether they represent truly irreconcilable intentions do we resort to such legislative history as may bear credibly upon the issue at hand. "The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (emphasis added). "Only a clear repugnancy between the old ... and the new" will justify a finding that repeal has occurred. Georgia v. Pennsylvania Ry. Co., 324 U.S. 439, 456, 65 S.Ct. 716, 725, 89 L.Ed. 1051 (1945).

Reading the explicit terms of § 786(c) and the Rescission Act together, I agree with the Dentists that there is no irreconcilable conflict between the two statutes. The rescission provision in Public Law 97-12 states simply that "of the funds provided for 'Health resources' for fiscal year 1981 in Public Law 96-536, as amended, $158,189,000 are rescinded." The plain language of the two statutes reveals no inconsistency, and this should be the end of the inquiry in the typical case.

This case, however, is complicated by the fact that the Rescission Act's scope is not confined to section 786; the statute encompasses rescissions in at least twelve different "health resources" areas. See H.R.Rep.No.97-124, 97th Cong., 1st Sess. 72-73 (1981). This understandable failure to legislate item-by-item makes a direct comparison of the two statutes less than definitive. We therefore do find it necessary to inquire into any legislative history that may provide a true picture of Congress' intent.

Turning to the conference report announcing the provisions compromised between the House and Senate versions of the Rescission Act, we find that all section 786 appropriations are treated as a single line item, "Family medicine general dentistry residencies and training." H.R.Rep.No.97-124, 97th Cong., 1st Sess. 73 (June 3, 1981). Because the conference report represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent. Since a reduction in the dollar amount allocated to section 786 grants in toto says nothing regarding the proportions in which those grants are to be awarded, there is no conflict between the conference report and section 786(c).

The Physicians would have us probe deeper in our search for legislative intent in hopes of finding such a message. They urge us to consider the various versions of the rescission bills considered by the House and Senate appropriations committees, which they suggest-perhaps rightly, but in any case, not relevantly-show that the committees at no time...