Neal Demby v. Richard S. Schweiker, in His Capacity as Secretary of the Department of Healthand Human Resources, American Academy of Family Physicians , 671 F.2d 507 ( 1981 )

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expended under § 786 of the Public Health Service Act be allocated to general practice dental training programs was not repealed but continued in force, and that therefore the Department of Health and Human Services erred in originally allocating only $1,000,000 (or 2.67 percent) of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 programfs] 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 intended to allocate ten or more percent of section 786 funds to the Dentists.¹ See Physicians’ Br. at 21-22. The intentions of committees of either house regarding a certain subject, where these intentions conflict with the express provisions of existing law, cannot simply be read into a statute that is otherwise silent on the subject. “Expressions of com-mittees dealing with requests for appropriations cannot be equated with statutes enacted by Congress ...” TVA v. Hill, 437 U.S. 153,191, 98 S.Ct. 2279, 2300, 57 L.Ed.2d 117 (1978) (emphasis added).²

Even supposing that these allocations, produced at what is essentially only a worksheet stage of the budget process, were to be given weight approaching that accorded the actual language of the statute as enacted, I would still be unable to conclude that their contents indicate an intent to suspend the ten percent requirement. In TVA v. Hill, supra, the Supreme Court observed that it will be a rare day indeed on which a court may infer the repeal of a substantive statute even from an actual decision by the full Congress to fund, or not to fund, a particular program. In that case, in spite of repeated appropriations for the construction of a dam that would destroy the natural habitat of an endangered species and the view expressed by the Senate Appropriations Committee that expenditure of the appropriated funds did not violate the terms of the Endangered Species Act’s protection of such habitats, the Court held that the Act’s prohibitions applied with full force to the funded dam construction project, and that therefore the funds could not be expended as the committee had intended.³

The Physicians offer several grounds for distinguishing Hill. See Physicians’ Brief at 17-22. However, these contentions respond only to considerations which the Court in Hill found to be “particularly” significant under the facts of that case. 437 U.S. at 191, 98 S.Ct. at 2300. They do not remove the present case frpm the general rule that Congress’ intention to repeal its own acts must be “clear and manifest.” United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939).

Finally, the parties have proffered as evidence of Congress’ intent statements by a Senator and the Secretary found in the legislative record. I do not view these expressions as probative of legislative intent. For example, a letter from Secretary Schweiker to the congressional conference committee studying the rescission urged the insertion of language expressly repealing or suspending the ten percent rule in order that funding for family practice medical programs could continue to be funded at pre-rescission levels. This letter reiterated the express repealer included in the President’s original proposal of March 19, 1981. H.R.Doc.No.97-34, reprinted in 46 Fed.Reg. 18514 (March 24, 1981). The Dentists point to Congress’ failure to adopt the recommended express repealer of an intent to preserve the ten percent requirement. Dentists’ Br. at 15-16. I reject the contention that the views of an officer of the Executive Branch — even one who had himself formerly served on the Senate Appropriations Committee — constitute evidence probative of congressional intent under the circumstances here. Such views are binding neither upon Congress nor the courts in determining the meaning of this congressional enactment. They are, in essence, no more than free advice on the subject of how Congress might, if it chose, achieve a particular end. Congress’ acceptance or rejection of such counsel suggests little about its true legislative intent. The only value of such comment is as an interpretation by an administrative official.

The remark of Senator Schmitt, upon which the Physicians place heavy reliance, that “[w]e [the conference committee] made no rescission in the primary care areas of family medicine residencies,” also has its defects as legislative history. This remark was inserted into the Congressional Record after the rescission act had been passed by the House and Senate. 127 Cong.Rec. S 5802 (June 4, 1981). Although the statements of a member of Congress as intimately acquainted with a bill as Senator Schmitt was in this case are to be considered very carefully, his remarks, made after the passage of the bill, cannot be considered to have influenced members’ voting decisions. In any event, the limited nature of Senator Schmitt’s remark might well support contradictory interpretations.⁴

Standing between the record in this case and a finding of implicit repeal is one simple fact: Congress did not amend the provision which specified the relative positions of doctors and dentists under the Public Health Service Act. Section 786(c) represents a considered legislative judgment that general practice dentistry is deserving of at least ten percent of the support devoted to training programs under section 786. The Physicians are able to point to legislative and executive comment to the effect that family practice medical training is deserving of far greater attention than the corresponding dental programs, see Physicians’ Br. at 25-26 (quoting S.Rep.No.97-67, 97th Cong., 1st Sess. 226-27, 229 (1981)), U.S. Code Cong. & Admin.News 1981, p.-. I am compelled to agree with Dentists, however, that such comment does not constitute a law repealing the ten per cent requirement. See Dentists’ Br. at 18-19. In any event, family practice medical training will still receive fully 90 percent of the funds available under section 786 in the affected year.

In light of the foregoing, it seems barely necessary to repeat the frequently stated and eminently sound maxim that the policy against repeals by implication is of particular force when the purported repeal-er takes the form of an appropriations enactment. TV A v. Hill, 437 U.S. at 190, 98 S.Ct. at 2299. While repeals of substantive law in appropriations bills are accomplished every session by Congress, they are infrequent, and this is not such a case. For here the evidence does not even establish the predicate for the application of the rule disfavoring repeal by implication,⁵ namely, that there is truly serious doubt as to the vitality of the substantive statute. It is difficult to imagine that any member of Congress, even one having the ten percent requirement in the forefront of his consciousness, would consider that he was voting for the repeal of section 786(c) in assenting to the reduction as it was presented in the conference report.⁶

IV.

Therefore, it is my conclusion that Congress, in passing the Supplemental Appropriations and Rescission Act of 1981, did not indicate an intent to repeal § 786(c) or in any way suspend its operation. Appellants have failed to point to any persuasive evidence of such intent on the part of Congress —as distinct from various of its constituent members, committees, or other advisors. While it may be possible to, interpolate from the acts and expressions of individual legislators or committees a desire to repeal § 786(c), that interpolation would require a reversal of the presumption consistently applied by the Supreme Court in similar cases.

The judgment of the district court is therefore affirmed for the separate reasons set forth in the above opinion and the following opinion of Judge Wright.⁷ Judgment accordingly.

1 . The Physicians argue that the conference managers, being limited to the matters in dispute, would have exceeded their authority if $3.74 million had been allocated to the dentistry program because the House only appropriated $2.02 million and the Senate zero dollars. That claim is not available here. After Congress has agreed to a conference report it is too late to raise the parliamentary point that the managers exceeded their authority. V Hinds’ Precedents of the House of Representatives § 6442 (1907). That allocation to the dentistry program results from the failure of the Congress to repeal a standing provision of law that operated on all appropriation bills. The Secretary pointed out in his letter of June 1, 1981, to the Chairman of the Senate Appropriations Committee, that neither the House nor the Senate Bills included the required appropriation language necessary to overcome the 10 percent set aside for dentistry and if such language was not provided in the final bill the full 10 percent allocation to “General Dentistry” would be required. Letter of Secretary Schweiker to Senator Hatfield, June 1, 1981. This constitutes a knowledgeable interpretation of the resulting factual situation.

2 . Cf. United States v. Will, 449 U.S. 200, 222-24, 101 S.Ct.. 471, 484-85, 66 L.Ed.2d 392 (1980), in which the Court alluded to floor debate and committee reports on a repealer only after concluding that “the plain words of the statute reveal an intention to repeal ...” Id. at 222, 101 S.Ct. at 484 (emphasis added). Finding the “plain words” of both the Rescission Act itself and the conference report here insufficient to indicate an intent to repeal, 1 do not find the more attenuated history proffered by the Physicians persuasive of their claim.

3 . See TVA v. Hill, 437 U.S. at 167, 171, 98 S.Ct. at 2288, 2290.

4 . Senator Schmitt’s remark on family practice funding made no reference to any corresponding decision to cut dental program funding or to suspend the operation of § 786(c). Thus the statement told at best only half the story of the committee’s actions.

5 . The Physicians’ analysis of TV A v. Hill, see Physicians’ Br. at 17-22, fails to perceive the effectively two-tiered nature of the inquiry into implicit repeal. Although Hill mentions the absence of an “irreconcilable" conflict between an earlier act and a later act as one consideration in the inquiry, 437 U.S. at 192, 98 S.Ct. at 2300, in my view logic compels that this consideration be placed at its threshold. For if it appears from a comparison of the enactments that it was possible for Congress simultaneously “to regard each ... as effective,” that lack of conflict will in the normal case end the inquiry. Id. Only in the exceptional case where serious doubt on the question of “conflict” persists should it be necessary to enter into the more difficult and institutionally treacherous investigation of the weights and priorities attached by Congress to its various legislative duties, one of which is the appropriation function.

6 . There are numerous examples to be found in the books of various enactments, including appropriations acts, explicitly repealing substantive provisions of law. The “appropriation” continuing funding for the Tellico Dam in the wake of TVA v. Hill, supra, is such an example. There, Congress provided that “notwithstanding the provisions of 16 U.S.C., chapter 35 or any other, law,” the TVA was “authorized and directed” to complete Tellico Dam. Pub.L.No. 96-69, 93 Stat. 437, 449 (1979). Such an “appropriation” is manifestly much more than the mere provision of funds; it is a substantive enactment in an appropriations bill. Because 1 dispose of appellants’ argument for implied repeal by finding the absence of any colorable claim of contradiction between the two acts, I find it unnecessary to rely upon the further fact, demonstrated by such explicit repealers, that Congress is capable of explicit repeal when it so intends. In passing it should be noted, however, that such explicit terms can be found with respect to other appropriations even within the very bounds of the Rescission Act here in issue. See Pub.L.No.97-12, 95 Stat. 57 (rescission of student financial assistance program explicitly suspended application of Higher Education Act).

7 . Subsequent to the commencement of this action, section 786(c) was explicitly repealed with respect to future fiscal years by the Omnibus Budget Reconciliation Act of 1981, Pub.L.No. 97-35, § 2742(c), 95 Stat. 357, 923 (August 13, 1981). Just as Congress’ suspension of the requirements of the Endangered Species Act subsequent to the decision in HUI (see note 6 supra) cannot alter the Supreme Court’s pronouncement of the proper rules of statutory construction to be followed by the federal courts, Congress’ repeal of the ten percent requirement in section 786(c) affects neither the analysis nor the conclusion in the present case.