necessarily present a "case or controversy" which belongs in Federal Court.5

Accordingly, the Court finds that this action is moot, and, therefore, there is no "case or controversy" pursuant to Article III of the United States Constitution. The defendant's motion to dismiss is therefore granted. An Order in accordance with the foregoing shall be issued of even date herewith.

CHARLES R. RICHEY United States District Judge

Dated: February 9, 1982.

5 As this Court noted in Merit Systems Protection Board v. Eastwood, No. 81-2970 (D.D.C. June 30, 1981), "even if the situation does present an actual controversy, the Court has discretion whether to entertain an action for declaratory judgment, and the Supreme Court has indicated a marked reluctance to have important questions of public law resolved by declaratory judgments." Slip op. at 6.

Wilkey would have granted the rehearing, although a majority of the court was opposed.

On August 18, 1981, the CIA filed a motion for a 30-day stay of the court's order to disclose and its mandate pending an application to the Supreme Court for a writ of certiorari. Arguing that the information ordered disclosed was "classified in the interest of national security and to protect intelligence sources and methods," the CIA contended that the "damage to national security that is likely to result from release of all these documents far outweighs any harm to the Church in not obtaining immediate access to the documents during the relatively brief period in which the Solicitor General will determine whether to seek certiorari." [Cross-Appellant's Motion for a Stay . . ., August 18, 1981, at 1-2]

On August 20, 1981, the Church filed a response to the motion for a stay in which it stated that it did not oppose the motion on the condition that a petition for a writ of certiorari was filed on or before September 17, 1981.

On September 8, 1981, the appeals court granted the CIA's motion for a stay until September 18. A subsequent request by the CIA-filed on September 11-to have the court extend its stay through October 18 was denied in an order filed on October 13. The court's mandate issued three days later.

The CIA next turned to the Supreme Court, and, on October 21, 1981, the Solicitor General, on the agency's behalf, filed an application for a stay of the judgments of the district court and the court of appeals pending the timely filing of a petition for a writ of certiorari. The Solicitor General argued that if the stay was not granted "the government will be compelled either to release sensitive classified information concerning intelligence sources and methods, thereby mooting this controversy and (in the government's view) harming the nation's foreign policy and security, or to resist disclosure and risk contempt" in order to preserve the opportunity for further review by the Supreme Court. [Application For a Stay Pending Petition For a Writ..., October 21, 1981, at 3] According to the Solicitor General, the stay should be granted because: (1) it was probable that the Court would consider the issue sufficiently meritorious to grant review and there was a strong likelihood that it would reverse the judgement of the lower court; and (2) the irreparable injury that would occur in the absence of a stay outweighed the probability of harm to others if a stay was issued. On October 23, 1981, Chief Justice Warren Burger signed an emergency order granting the stay pending receipt of a response from the Church.

On October 27, 1981, the Church filed its response to the application for a stay, stating that it did not oppose the grant as long as a petition for certiorari was filed by November 12. The response noted, however, that the Church did not agree with the CIA's assessment of the probabilities that the petition would be granted and the court of appeals decision reversed.

On November 2, 1981, Chief Justice Burger granted a request to extend the time for filing a petition for certiorari until December 11.

On November 17, 1981, the Chief Justice issued another order granting the stay-essentially extending the October 23rd order

hearings in May 1980. The Subcommittee was then operating pursuant to a Committee operations resolution that expired February 28, 1981. S. Res. 361, 96th Cong., 2d Sess. (1980). The succeeding Committee operations resolution, although authorizing operations from March 1, 1981, was in fact adopted by the Senate on March 3, 1981. S. Res. 57, 97th Cong., 1st Sess. (1981).2 The three-day interval from February 28, 1981, to March 3, 1981, Cammisano contends, necessitates his discharge.

We disagree and find no warrant for requiring the Subcommittee to begin anew its quest for Cammisano's testimony. Given the undisputed facts of this case, it is plain that the three-day delay in renewal of Committee and Subcommittee operating authority subjected Cammisano to no unfair treatment or disadvantage. None of the terminating events specified in the district court's December 29, 1980, order has occurred. Cammisano concedes that the Committee and Subcommittee continued to exist during the three-day interval,3 and that he did not ask to testify then or, indeed, at any prior or subsequent time. Had Cammisano sought to purge himself of contempt on March 1, 2, or 3, 1981, his desire to do so might have been accommodated in a number of ways. For example, had Cammisano so requested, the Subcommittee could have arranged for the taking of his testimony and then ratified that action upon passage of the resolution renewing its operating authority. Cammisano, however, made no effort during the "gap" period or at any other time to purge himself of contempt. He complains of no lack of notice, no abatement of the Subcommittee's interest in his testimony, no denial of constitutional or statutory right. Nor could he tenably raise such complaints. Accordingly, the district court properly denied Cammisano's motion for discharge and properly granted the Subcommittee's cross-motion to implement the civil contempt order.

2 Section 3(d) of this Resolution specifically provides:

All subpenas, contempt proceedings, and related legal processes of the committee and its subcommittee authorized under S. Res. 361 of the Ninety-sixth Congress, second session, including the subpena enforcement and contempt proceeding against William Cammisano, are authorized to continue.

App. 44 (emphasis added).

3 Cammisano compares his situation to that of a person held in civil contempt for refusing to testify before a grand jury. But a grand jury's life does not extend beyond the expiration of its term. See Shillitani v. United States, 384 U.S. 364 (1966). By contrast, the Senate Permanent Subcommittee on Investigations, as well as the parent Committee on Governmental Affairs, remained viable entities throughout the period in question as units of a larger continuing body, the United States Senate. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 512 (1975).

* Cammisano asserts that "[t]he expiration date of the Subcommittee's authority is like a statute of limitations." Brief of Appellant at 14-15. Assuming the analogy is appropriate, it does not advance Cammisano's argument. A legislature, if it is so minded and does not trench on any vested property or well-founded reliance interest, may extend a limitation period even after the period initially specified has expired. See International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 241-44 (1976); Davis v. Valley Distributing Co., 522 F.2d 827, 830 n. 7 (9th Cir. 1975), cert. denied, 429 U.S. 1090 (1977).

673 F.2d 425 (1982)

CONSUMER ENERGY COUNCIL of America, CONSUMER FEDERATION OF AMERICA AND PUBLIC CITIZEN, PETITIONERS,

V.

FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT,

Process Gas Consumers Group, et al., United Distribution Companies, Interstate Natural Gas Association of America, American Gas Association, Petrochemical Energy Group, Intervenors

CONSUMER ENERGY COUNCIL OF AMERICA, CONSUMER FEDERATION OF AMERICA, AND PUBLIC CITIZEN, PETITIONERS,

V.

United Distribution Companies, Interstate Natural Gas Association of America, Process Gas Consumers Group, et al., American Gas Association, Petrochemical Energy Group, Intervenors

Nos. 80-2184, 80-2312

United States Court of Appeals, District of Columbia Circuit Argued 10 Sept. 1981

Decided 29 Jan. 1982

Petitioners challenged constitutionality of one-house legislative veto provision of Natural Gas Policy Act of 1978. The Court of Appeals, Wilkey, Circuit Judge, held that: (1) provision of Act providing for "incremental pricing" program ruling of Federal Energy Regulatory Commission to take effect only if neither House of Congress adopted within 30 days a resolution disapproving such rule was unconstitutional, [426] and (2) concurrence of Senate and presentation to President would be necessary prerequisites to effectiveness of House disapproval resolution.

Order accordingly.

1. Federal Courts 1132

Challenges to agency's refusal to adopt rules or conduct rule. making may be brought other than in federal district court.

2. Federal Courts 1132

Whether review of agency's refusal to adopt rules or conduct rule making belongs in federal district court or Court of Appeals is determined by reference to jurisdictional provisions in agency's governing statute.

There was no reason in law or policy for case involving challenge to constitutionality of one-house veto provision in Natural Gas Policy Act of 1978 and revocation of Federal Energy Regulatory Commission rule to be brought in federal district court rather than

in Court of Appeals. Natural Gas Policy Act of 1978, §§ 202(c), 506, 15 U.S.C.A. §§ 3342(c), 3416.

Presence of severability clause which expressly sets forth congressional intent that statute stand in event one of its provisions is struck down makes it extremely difficult for party to demonstrate inseverability.

Crucial inquiry on question of severability of statutory provision is whether Congress would have enacted other provisions of statute in absence of invalidated provision; imposition of unspecified burden of persuasion on either side is not beneficial to such inquiry.

6. Statutes ~ 64(2)

Single-house veto provision of Natural Gas Policy Act of 1978 was severable. Natural Gas Policy Act of 1978, § 202(c), 15 U.S.C.A. § 3342(c).

Congress did not intend provision of Natural Gas Policy Act of 1978 governing setting aside or modification of order of Federal Energy Regulatory Commission under certain circumstances to permit Commission to use occasion of petition for rehearing to make any substantive change whatsoever in rule without providing some notice and comment. Natural Gas Policy Act of 1978, § 506(a), 15 U.S.C.A. § 3416(a).

8. Administrative Law and Procedure m 421

Administrative Procedure Act expressly contemplates that notice and opportunity to comment will be provided prior to agency decisions to repeal rule. 5 U.S.C.A. §§ 551(5), 553(b, c).

9. Gas 14.3(3)

Fact that House of Representatives voted its disapproval of "incremental pricing" program rule issued by Federal Energy Regulatory Commission pursuant to Natural Gas Policy Act of 1978 did not make such rule any less final for purposes of application of Administrative Procedure Act notice and comment requirements to Commission's subsequent action in revoking such rule. 5 U.S.C.A. §§ 551(5), 553(b, c), Natural Gas Policy Act of 1978, § 2 et seq., 15 U.S.C.A. § 3301 et seq.

10. Administrative Law and Procedure 420, 421

Notice and comment requirements of Administrative Procedure Act apply to modification or repeal of defectively promulgated regulations. 5 U.S.C.A. §§ 551(5), 553(b, c).

11. Administrative Law and Procedure 400

Fact that Federal Energy Regulatory Commission considered regulations defective did not imply that emergency existed so as to justify ignoring Administrative Procedure Act provision governing