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vacated the judgment of the lower court in Califano v. McRae and remanded the case to Judge Dooling for further consideration in light of the Supreme Court's decision in Maher v. Roe, 45 U.S.L.W. 4787 (U.S. June 20, 1977). [In that case the Court held that a State participating in the medicaid program was not required by the Equal Protection clause of the Fourteenth Amendment to pay for nontherapeutic abortions for indigent women simply because, as a matter of policy, the State paid for expenses incident to childbirth.]
In the District Court, plaintiffs filed a motion for a temporary restraining order on July 27, 1977.
At a hearing on July 28, 1977, Judge Dooling granted the order temporarily restraining effectuation of the Hyde amendment pending a hearing on the plaintiff's motion for a preliminary injunction, and ordered the defendants to continue to pay the Federal share of abortions in accordance with procedures prior to the enactment of the Hyde amendment.
On August 4, 1977, at a hearing before Judge Dooling, the temporary restraining order was vacated.
The case was called before Judge Dooling on August 11, 1977, and the hearing was resumed. At the conclusion of the proceedings that day, the hearing was continued to September 6, 1977.
The case was again called before Judge Dooling on September 6, 1977, and hearing resumed.
On October 3, 1977, the U.S. Supreme Court denied the petition for rehearing in Califano v. McRae.
On January 9, 1978, plaintiffs filed an amended complaint, to which defendants filed their answer on January 25, 1978.
On February 9, 1978, the Catholic League for Religious and Civil Rights moved to intervene as a party defendant. Plaintiffs opposed the motion, which was argued on February 14, 1978. The motion was denied at the hearing, except to the extent that petitioners were allowed to appear as amici curiae.
In the month of August 1978, various organizations, including the National Organization for Women Legal Defense and Education Fund and various psychiatric associations and religious organizations moved to file briefs as amici curiae and were granted permission to do so.
Plaintiffs filed a notice of motion for entry of default judgment on October 3, 1978, in opposition to which intervenor-defendants filed an affidavit on October 11, 1978.
On November 28, 1978, Judge Dooling ordered the further amendment of the amended complaint.
On January 29, 1979, Judge Dooling issued a memorandum and order denying plaintiffs' motion for an order directing entry of a default judgment against the intervenor-defendant. Judge Dooling denied the motion on the ground that the action had been maintained until that time as a class action and should continue to be so maintained.
Status. — The case is pending in the U.S. District Court for the Eastern District of New York.
The memorandum and order of the District Court is printed in the “Decisions” section of the report of Court Proceedings and Actions of Vital Interest to the Congress, Part 1, April 15, 1977.
III. POWERS OF CONGRESSIONAL COMMITTEES
International Union of Bricklayers and Allied Craftsmen v. Harris
Civil Action No. 79-1660 (D.D.C.)
On April 16, 1979 the Department of Housing and Urban Development (“HUD”) published regulations entitled "Increases in Thermal Requirements for HUD Minimum Property Standards" (44 Fed. Reg. 22444). These regulations, which were to become effective on May 16, 1979, impose new thermal insulation requirements on one- and two-family homes constructed under HUD mortgage insurance and low-rent public housing programs.
On June 26, 1979 a number of organizations representing the members of unions and trade associations involved in masonry construction filed suit in the U.S. District Court for the District of Columbia against HUD, Patricia Harris as Secretary of HUD, and Lawrence Simons as Assistant Secretary-Federal Housing Commissioner of HUD. The plaintiffs alleged that the regulations in question would effectively preclude the use of "brick and block" construction in all dwellings covered by the regulations, thereby imposing economic harm upon the plaintiffs since brick and block is presently used in 15 to 20 percent of such dwellings.
In seeking to enjoin implementation of the regulations and to have them declared illegal, the plaintiffs argued, inter alia, that Congress, pursuant to statute, acted to defer the effective date of these regulations until August 8, 1979. This assertion was based on the fact that in 1978 Congress amended the Department of Housing and Urban Development Act by adding Section 7(0) thereto. Section 7(0)(3) (42 U.S.C. $ 3535(0)(3) provides that no HUD regulation shall be made effective until 20 days of continuous session of Congress have elapsed after publication of the regulation. This is to permit the Committees on Banking, Finance and Urban Affairs of the House or Senate to review the regulation and to decide whether it violates the intent of Congress. If within this time period either committee has “reported out” proposed legislation invalidating the regulation implementation of the regulation will be deferred for 90
61-795 0 - 81 - 9
Teing at C. Housing and Section 3.8.a' of insotar as they
approved and the -_-5 announced that i continuous ses
bül and commitCart of the House
TOE the regulations I. ak not become E view period.
er expressed - the defend
vacated the judgment of the lower court in Califano
In the District Court, plaintiffs filed a mot:
At a hearing on July 28, 1977, Judge Doo! temporarily restraining effectuation of the ing a hearing on the plaintiff's motion for a and ordered the defendants to continue to
ution the plainabortions in accordance with procedures the Hyde amendment.
On August 4, 1977, at a hearing before rary restraining order was vacated.
The case was called before Judge l»: and the hearing was resumed. At the that day, the hearing was continued t..
The case was again called before J 1977, and hearing resumed.
On October 3, 1977, the U.S. Sur for rehearing in Califano v. McRae.
On January 9, 1978, plaintiffs fil which defendants filed their answer
On February 9, 1978, the Catholic Rights moved to intervene as a par the motion, which was argued on was denied at the hearing, excet were allowed to appear as amicie
In the month of August 1978
Plaintiffs filed a notice of
On November 28, 1978,
On January 29, 1979, Jud
-ance and es filed an in terpretation
mes J. Wil.
Idrissey, Ties Watkins, Thomas Bass, Jr., Sall Green,
Jr and Ed Bethune Court Judge Oliver Lessen denied ary injunction. The court held that
within the meaning of section with the Clero of the appropriate
elective until after the frest merind of 29
as which occurs after the day on which Imal. If within such 220-day period, either sued from further consideration of a joint se which is intended to modify or invali
areof, the mateor regulation or portion setbegeeridoom calendar days from unless the tonssetto which such Commit
jesiti, in which case the rule or theesguaston off the 20 calendar days
aspbill these odtier House does not have Draadopeed and if the requirements of See gee di Pattom TOMS) (42 U.S.C.
and (B) provide that no measure y committee unless a majority of was present and that a roll call on to report any bill or resolution of votes cast for and against includport. rispositive of the meaning of “report ndicates that the committee vote is but -cess of reporting a measure to the full ne question is a close one, in the absence
interpretation of the phrase the Court t instance rely on the plain meaning of n the context of committee action, this lates the filing of a report with the parent on a motion to report a bill or resolution distinctly differently act and one not adction 70(3). The Court therefore concludes ure is “reported out” within the meaning of when it is filed with the clerk of the appropri
interpretation would satisfy the requirement of hich is clearly essential to the successful employe legislative deferral provision. This conclusion is 'orted by analogy to judicial proceedings, in which
nt is not final until it is entered by the clerk in I docket. Fed. R. Civ P. 58. Therefore, because the and bill for H.R. 3875 was not filed until after
days of continuous session had passed, implementa-f the HUD regulations was not deferred by timely
tive action. Thus, the plaintiffs' claim that HUD is ,fully implementing these regulations must fail. [Slip ion at 7-8.]
- The case is still pending before the U.S. District Court District of Columbia. ef Processors, Inc. v. Smith (formerly Bagley) 8-1855 (Eighth Cir.) august 1, 1977, Iowa Beef Processors, Inc. (hereinafter “IBP") uit against a number of defendants in the United States it Court for the Northern District of Iowa (C.A. No. 77-4040, Iowa). Named as defendants were Lex Hawkins, John O. ane, and Hughes A. Bagley, among others. The complaint days, thereby giving Congress an opportunity to review the committee's proposal."
The regulations on thermal requirements were published on April 16, 1979 with an announced effective date of May 16, 1979. On May 10, 1979 the House Banking Committee held a meeting at which a motion was made to report H.R. 3875, the Housing and Community Development Amendments of 1979. Section 318(a) of this bill invalidated the thermal requirements insofar as they apply to masonry construction. The motion was approved and the Chairman of the Committee, Representative Reuss, announced that the bill was “reported out”. The twentieth day of continuous session ended on May 12, 1979. Three days later, the bill and committee report for H.Ř. 3875 were filed with the Clerk of the House.
In support of their motion for a preliminary injunction the plaintiffs maintained that because of the committee vote the regulations did not become effective on May 16, 1979 and could not become effective until August 8, 1979, the end of the 90 day review period. The Secretary of HUD, however, announced by letter dated May 18, 1979 that the regulations had become effective and expressed her intent to implement them. In opposing the motion, the defendants argued that because the bill was not filed with the Clerk until the statutory 20 day period had expired, implementation was not deferred.
On July 13, 1979 eleven members of the Banking, Finance and Urban Affairs Committee of the House of Representatives filed an amicus curiae memorandum in support of plaintiffs' interpretation of the legislative deferral provision. Those members were J. William Stanton, Doug Barnard, Stewart B. McKinney, Wes Watkins, Richard Kelly, James B. Hanley, Thomas B. Evans, Jr., Bill Green, Don Ritter, Carroll A. Campbell, Jr., and Ed Bethune.
On July 24, 1979 U.S. District Court Judge Oliver Gasch denied plaintiffs' motion for a preliminary injunction. The court held that a “reporting out” does not occur within the meaning of section 7(0)(3) until the measure is filed with the Clerk of the appropriate house of Congress. Said the court,
Both defendants and amicus have directed the attention of the Court to House Rule XI, entitled “Committee Procedures for Reporting Bills and Regulations." Clause 2(1)(1)(A) of this rule provides that it shall be the duty of the chairman of each committee “to report or cause to be reported promptly to the House any measure approved by the committee ... Clause 2(1)(1)(B) states:
“No rule or regulation may become effective until after the first period of 20 calendar days of continuous session of Congress which occurs after the day on which such rule or regulation is published as final. If within such 20-day period, either Committee has reported out or been discharged from further consideration of a joint resolution of disapproval or other legislation which is intended to modify or invalidate the rule or regulation or any portion thereof, the rule or regulation or portion thereof so addressed shall not become effective for a period of 90 calendar days from the date of Committee action or discharge unless the House to which such Committee reports has rejected such resolution or legislation, in which case the rule or regulation may go into effect only after the expiration of the 20 calendar days described in the first sentence of this paragraph if the other House does not have such a resolution or legislation pending or adopted and if the requirements of section 553 of title 5, United States Code, are met." Section 7(0)(3) (42 U.S.C. § 3535(0)(3))