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July 30, 1973

Caspar WEINBERGER, Secretary of Health, Education & Welfare, et al., Defendants

John H. Pratt, District Judge.

The opinion of the court was delivered by: PRATT

JOHN H. PRATT, District Judge.

 The above case having come on for a hearing before the Court upon plaintiff's application for a preliminary injunction, on July 27, 1973, and the parties having appeared and having been afforded the opportunity to present evidence, and after hearing oral argument by counsel and due deliberation having been had thereon, I make the following Findings of Fact and Conclusions of Law:


 1. The plaintiff, Seafarers International Union of North America, AFL-CIO (hereinafter SIU) is and has been at all times herein relevant a "labor organization", to wit, an unincorporated association, consisting of thirty-two affiliated bodies whose members include, inter-alia, thousands of seamen employed by United States flag deep-sea, Great Lakes, inland waters and fishing vessels, whose principal office is at 675 Fourth Avenue, Brooklyn, New York, and it maintains an office at 2000 L Street, N.W., Washington, D.C. within the territorial jurisdiction of this Court.

 2. Defendant Caspar Weinberger is and at all times relevant herein has been the Secretary of Health, Education and Welfare of the United States (hereinafter Secretary).

 3. Defendant Charles C. Edwards is and has been at all relevant times herein the Assistant Secretary for Health.

 4. Defendant Robert E. Streicher is and has been the Director of the Federal Health Program Service, Health Services and Mental Health Administration, Department of Health, Education and Welfare, which is responsible for the administration of the United States Public Health Service (hereinafter PHS), which provides hospital and medical care for beneficiaries entitled or authorized to receive such care under the Public Health Service Act of 1944, 58 Stat. 682, 42 U.S.C. § 201 et seq., (as amended) P.L. 92-585, 86 Stat. 1292.

 5. The seamen members of SIU and its affiliated organizations are seamen as defined in 42 U.S.C. § 201(h) and by reason thereof are entitled to medical, surgical and dental treatment and hospitalization without charge at PHS hospitals and stations pursuant to 42 U.S.C. § 249.

 6. At all times relevant herein, the PHS has been and is operating general hospitals at the following locations: Baltimore, Maryland; Boston, Massachusetts; Norfolk, Virginia; Staten Island, New York; Galveston, Texas; New Orleans, Louisiana; Seattle, Washington and San Francisco, California.

 7. That seamen, including seamen members of plaintiff, have historically received and have been entitled to receive medical care and hospitalization without charge, provided by the United States government, for more than one hundred seventy years, and such seamen have come to depend on these essential health services.

 8. That the Congress has protected the benefits to seamen and other PHS beneficiaries, and has required the Department of Health, Education and Welfare to maintain the PHS hospitals and clinics (Public Health Service Act of 1944, supra, §§ 321, 322); that Congress has since the enactment of the 1944 Act reiterated upon several occasions its intent that the PHS hospitals be kept open and that PHS beneficiaries continue to receive the medical care and treatment to which they have become accustomed. See House Report 89-610, 89th Congress -- 1st Session, p. 18; Senate Concurrent Resolution 6 (Cong. Record -- Senate S1302, February 11, 1971).

 9. The legislative intent to maintain the PHS hospital system is further borne out by two opinions of the Comptroller-General of the United States (Decision B-156510, February 23, 1971; letter of the Comptroller-General of June 7, 1965 to the Chairman, House Committee on Merchant Marine and Fisheries). The more recent of these two opinions states:

"It is therefore our opinion that under the 1944 Public Health Service Act, the Congress intended that the hospital system characteristic of the Service since its inception in 1802 with the Marine Hospital is to be operated and maintained by the Service in order to carry out the functions and duties imposed by the 1944 Act. In light of the foregoing, the Secretary may not, in our view, use his discretionary powers under the 1944 Public Health Service Act or the Federal Property and Administrative Services Act of 1949 to effect the closing of all PHS hospital facilities by means of the transfer of these institutions to non-federal ownership." (Opinion B-156510, supra, p. 7)

 10. In 1972, Congress enacted the Emergency Health Personnel Act Amendments of 1972, P.L. 92-585, 86 Stat. 1292 (hereinafter P.L. 92-585). Grave concerns were expressed by various groups, including community health care institutions, that the Department of Health, Education and Welfare planning reflected a desire to dispose of the PHS hospitals in the most expeditious way, rather than a genuine concern to provide continued quality health care to PHS beneficiaries and other members of the communities in which the PHS facilities are located. (See Senate Report No. 92-1062, p. 11, quoted infra, U.S.Code Cong. & Admin.News 1972, p. 4832). Congress in Section 3 of P.L. 92-585 specifically provided that the Secretary could not close or transfer control of any PHS facilities unless he transmitted to each House of Congress a detailed explanation for the proposed closing or transfer, which explanation contained assurances of continued equivalent care and treatment for affected PHS beneficiaries, an estimate of the cost of providing such care and treatment after the proposed closing or transfer, and the comments made by each state or local area-wide health planning agency with respect to the proposal, after each such agency had been provided with a reasonable opportunity to review and comment on the proposed closing or transfer. Additionally, the Secretary was required to wait a period of ninety calendar days of continuous session of Congress from the date of transmission of the explanation to Congress, before taking any steps to effectuate the proposed plan, during which period Congress could review and study the proposal and take action with respect thereto.

 11. The legislation (Section 3, P.L. 92-585) does not constitute in any way a retreat from the established Congressional policy requiring maintenance of the PHS hospital system. It manifests the intent of Congress that before action can be taken to close any PHS hospital the Secretary must carefully study his action and take all steps necessary to assure that each PHS beneficiary affected by the proposed action continue to receive equivalent care and treatment. It further manifests the intent of Congress that it have the opportunity to study the plan and take appropriate reaction with ...

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