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In any event, the report of any committee on a
measure which has been approved by the commit-
tee shall be filed within seven calendar days (ex-
clusive of days on which the House is not in ses-
sion) after the day on which there has been filed
with the clerk of the committee a written request,
signed by a majority of the members of the com-
mittee for the reporting of that measure. Upon
the filing of any such request, the clerk of the
committee shall transmit immediately to the
chairman of the committee notice of the filing of

the request
Finally, clause 2(1)(2)(A) and (B) provide that no measure
shall be reported from any committee unless a majority of
the committee actually was present and that a roll call
vote be taken on a motion to report any bill or resolution
with the total number of votes cast for and against includ-
ed in the committee report.

This rule is not dispositive of the meaning of “report out,” but it clearly indicates that the committee vote is but one step in the process of reporting a measure to the full House. Although the question is a close one, in the absence of any definitive interpretation of the phrase the Court must in the first instance rely on the plain meaning of "report out." In the context of committee action, this phrase contemplates the filing of a report with the parent body. A vote on a motion to report a bill or resolution constitutes a distinctly differently act and one not addressed by section 7(0 (3). The Court therefore concludes that a measure is “reported out" within the meaning of this section when it is filed with the clerk of the appropriate house.

Such an interpretation would satisfy the requirement of finality, which is clearly essential to the successful employmet of the legislative deferral provision. This conclusion is also supported by analogy to judicial proceedings, in which a judgment is not final until it is entered by the clerk in the civil docket. Fed. R. Civ P. 58. Therefore, because the report and bill for H.R. 3875 was not filed until after twenty days of continuous session had passed, implementation of the HUD regulations was not deferred by timely legislative action. Thus, the plaintiffs' claim that HUD is unlawfully implementing these regulations must fail. [Slip

Opinion at 7-8.] Status. — The case is still pending before the U.S. District Court for the District of Columbia. lowa Beef Processors, Inc. v. Smith (formerly Bagley)

No. 78-1855 (Eighth Cir.) On August 1, 1977, Iowa Beef Processors, Inc. (hereinafter “IBP') filed suit against a number of defendants in the United States District Court for the Northern District of Iowa (C.A. No. 77-4040, N.D. Iowa). Named as defendants were Lex Hawkins, John O. Cochrane, and Hughes A. Bagley, among others. The complaint alleged that Mr. Bagley, a former vice president of IBP, had taken a number of documents with him when he left the employ of IBP in 1975. These documents allegedly contained confidential business information which would damage IBP's business if disclosed. The complaint also alleged that Mr. Bagley had in fact disclosed certain confidential information and records to Mr. Hawkins, Mr. Cochrane, and others in violation of both contractual obligations and common law fiduciary duties. Mr. Hawkins and Mr. Cochrane are lawyers who have been involved in a number of consolidated private antitrust suits brought by members of a group known as the Meat Price Investigators Association (hereinafter “MPIA”) against IBP.

Chief Judge McManus, in an order issued February 13, 1978, deciding various pretrial motions, granted IBP's motion, which had been filed on October 28, 1977, for a protective order preventing disclosure of IBP's confidential business information and limiting its use to defense counsel and to Hawkins and Cochrane for purposes of the consolidated antitrust cases.

In October 1978, the Subcommittee on SBA and SBIC Authority and General Small Business Problems (hereinafter “Subcommittee”) of the Committee on Small Business of the United States House of Representatives (hereinafter “Committee"), served a subpoena duces tecum on Mr. Bagley requiring him to produce a number of documents covered by the protective order.

Mr. Bagley filed a motion on November 1, 1978, to lift the protective order or in the alternative for guidelines. On November 13, 1978, IBP filed a brief in opposition to the motion.

On November 24, 1978, Chief Judge McManus issued an order modifying the protective order to allow Mr. Bagley to comply with the subpoena. The order stated that the court could ascertain no great interference in proceeding with the suit by allowing the Committee to examine and copy the records as long as the original copies remained accessible to the parties in the suit. It was noted by Judge McManus that IBP was free to approach the Committee in regard to the scope of the use of the documents.

On November 27, 1978, a subcommittee investigator took physical possession of seven boxes of the documents.

IBP filed a notice of appeal from the District Court's order lifting the protective order. The appeal was docketed on December 4, 1978. A petition for writs preserving appellate jurisdiction and a stay of the District Court's order was filed by IBP on December 4, 1978. On the same day, the District Court's order was stayed to and including December 16, 1978. The motion for a stay was argued on December 12, 1978.

On December 14, 1978, the Court of Appeals, in a per curiam order, denied IBP's motion for a stay pending appeal and for extraordinary writs preserving appellate jurisdiction. The order concluded that a stay of the District Court order was both inappropriate and unnecessary at that time. The “very limited” scope of Judge McManus' order and the fact that the protective order remained otherwise in effect were noted. The Court of Appeals considered the fact that disclosure was to be made to a subcommittee of the House of Representatives and stated:

In regard to the disclosure to the Subcommittee, it has represented in its papers filed in this court and during oral argument that it has no intention of making public any of these documents, if ever, until after the House of Representatives begins its next session in January, 1979. In good faith, we must accept these representations made by members of a coordinate branch of government at face value. We are further assured that the Subcommittee and its Special Counsel will take all appropriate precautions to insure that these documents are disclosed only to the extent necessary to allow the Subcommittee staff to begin the job of collating and classifying the information contained therein. In present circumstances any disclosure beyond the immediate needs of the Subcommittee and its staff would appear to be both unnecessary and a matter of a grave import for all concerned.

Given the Subcommittee's representations to us and the limited nature of Judge McManus' order, we are of the opinion that granting a stay and compelling the return of the documents at this time is both unnecessary as a practical matter and inappropriate as a matter of comity. Such action would inevitably, albeit erroneously, be viewed as an expression of our lack of faith in the Subcommittee's representations to us. Such an expression would be particularly inappropriate in view of the Subcommittee's past cooperation with this court. [Iowa Beef Processors, Inc. v. Bagley, No. 78–1855 (8th Cir., Filed Dec. 4, 1978); Slip

Opinion at 4-5.) Stating that the case presented jurisdictional and substantive questions and implicated fundamental concepts of legislative and judicial authority, the Court of Appeals deemed it appropriate that the case be heard on an expedited basis and ordered it scheduled for argument on the merits on January 9, 1979.

On February 7, 1979, the Court of Appeals issued another opinion in which it held that the District Court's order of November 24, 1978 was not subject to review by appeal. However, the notice of appeal was treated as a petition for a writ of mandamus, which was granted. In granting the writ, the Court of Appeals vacated the District Court's order and remanded the case with directions to reinstate the protective order in full. The Court of Appeals declined to compel the Subcommittee to return the documents it had acquired as a result of the subpoena.

The District Court's order, the opinion stated, was not appealable under 28 U.S.C. $ 1291 nor under any statutory or judicially-created exception to the finality doctrine embodied in that statute. The Court of Appeals determined first that the order was not a final order appealable of right under 28 U.S.C. $ 1291 nor an order appealable under the statutory exceptions of the Interlocutory Appeals Act, 28 U.S.C. $ 1292.

The Court of Appeals then considered and rejected IBP's argument that the order was appealable as a "collateral order" within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). That case had held that 28 U.S.C. $$ 1291 and 1292 do not disallow appeals from decisions "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).

Noting that most courts, including the Eighth Circuit itself, have held that orders compelling the production of documents or testimony are not appealable as collateral orders or otherwise, the Court of Appeals stated that it viewed an order partially lifting a protective order as the functional equivalent of an order compelling production of documents or testimony and therefore held that it had no appellate jurisdiction.

The Court of Appeals accepted IBP's contention that this was an appropriate case for the invocation of the discretionary writ issuing authority of the court under the All Writs Act, 28 U.S.C. $ 1651(b) and turned to, the merits of the District Court's order. The opinion noted first that the District Court, by entering the original protective order, had implicitly conceded that any further disclosure would unduly harm IBP, and yet had allowed disclosure to the Subcommittee without any constraints on the Subcommittee's use of the documents and without any showing that intervening circumstances had in any way obviated the potential prejudice to IBP. In further criticism of the District Court, the opinion stated:

Even more important than this abrupt and unexplained turnabout is the fact that the documents ordered disclosed to the Subcommittee were an important part of the subject matter of the underlying lawsuit. That is, IBP alleged that Bagley had breached both contractual and fiduciary obligations to IBP by disclosing the contents of these documents and sought an injunction preventing further disclosure and compelling the return to IBP of all such documents. In these circumstances, the district court should have maintained the status quo by carefully limiting disclosure of these documents pending determination of the merits of IBP's claim. The court's order allowing disclosure to the Subcommittee, without any limitation on its use of the documents, could well render moot in part IBP's claims for relief in the underlying lawsuit.6

6 We, of course, express no opinion as to the merit, if any, of IBP's

claims for relief in the underlying lawsuit. [Slip Opinion at 10-11]

The Court of Appeals concluded that the District Court's order partially lifting the protective order was a clear abuse of discretion and therefore it granted the petition for a writ of mandamus, vacated the District Court's order of November 24, 1978, and remanded the case with instructions to reinstate in full the protective order of February 13, 1978.

The Court of Appeals next turned to a consideration of IBP's request that the Subcommittee be ordered to return the documents in question to the District Court and to refrain from revealing their contents. In this regard, the opinion noted first that the Subcommittee was not a party to the underlying litigation nor a party to the appeal. IBP had argued that the Subcommittee had acquired the documents in an unlawful manner, specifically in violation of Rule 62(a) of the Federal Rules of Civil Procedure. IBP had contended that Rule 62(a) operated automatically to stay for ten days the order partially lifting the protective order and that the Subcommittee had violated the protective order since it had taken the documents only 3 days after the order partially lifting the protective order. The Court of Appeals rejected this claim, by noting that Rule 62(a) applied only to judgments and that the term “judgment” was defined by Rule 54(a) as a decree or order from which an appeal lies. Since the Court of Appeals had already determined that the District Court's order partially lifting the protective order was not appealable, it concluded that the automatic 10-day stay provision of Rule 62(a) was inapplicable and that the Subcommittee had therefore not violated the protective order.

Summarizing its conclusions in regard to the Subcommittee and its actions, the Court of Appeals stated:

Because the Subcommittee has neither been made a party to this litigation nor acted in such a manner as to violate an existing court order, we find no basis on the record now before us to compel the Subcommittee to

return the papers it acquired as a result of its subpoena. [Slip Opinion at 13] Finally, the Court of Appeals commented generally on the overall dispute in the following fashion:

We are aware that this opinion is probably not the final word in this controversy. As we have noted, however, the scope of our inquiry at this stage is severely limited. Any further action in this matter should be pursued in a district court of competent jurisdiction 2 or before the Subcommittee itself.

We are also cognizant of the fact that this dispute has, at least in part, passed into the political arena. Indeed, from the very begining, it was apparent that non-jurisprudential considerations have played an important part in the parties' litigation strategy. We dare to suggest that those concerned would have been well-advised to have worked out an arrangement among themselves which would take into account the competing interests, rather than attempting to foist upon this court the responsibility for resolving questions which are either beyond the scope of appellate judicial authority or outside the meager

record, of this case. [Slip Opinion at 13-14]

2 At least one court has held that jurisdiction and venue in actions against congressional committees and their members are normally proper in the United States District Court for the District of Columbia. See

Liberation News Service v. Eastland, 426 F. 2d 1379 (2d Cir. 1970). On February 16, 1979, IBP filed a petition for writ of certiorari in the U.S. Supreme Court and a motion for a preliminary injunction requiring the return of the documents and preserving their confidentiality pending disposition of the petition for certiorari. In its petition, IBP listed the following questions as presented for review:

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