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New York State Association for Retarded Children Inc. v. Carey

decided: July 28, 1980.

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., ET AL. AND PATRICIA PARISI, ET AL., PLAINTIFFS-APPELLEES,
v.
HUGH L. CAREY, INDIVIDUALLY AND AS GOVERNOR OF THE STATE OF NEW YORK AND EDWARD V. REGAN, INDIVIDUALLY AND AS COMPTROLLER OF THE STATE OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS



Before Lumbard, Van Graafeiland and Kearse, Circuit Judges.

Author: Per Curiam

Order ON PETITION FOR REHEARING

In a petition for rehearing with a suggestion of rehearing en banc, the New York State Association for Retarded Children, et al., raised substantially the same arguments that we considered initially on this appeal. However, in a letter dated June 23, 1980, supplementing the petition, petitioners state for the first time that the United States Department of Justice has advised them that Governor Carey may draw, at his discretion, from a fund of $6 million in federal money to provide the $342,000 needed to fund the Willowbrook Review Panel and that, accordingly, because the expenditure of this federal money does not require the New York Legislature's prior approval, no state-law impediment prevents Governor Carey from using this money to comply with the funding requirements set forth in Section 7(c) of the Consent Judgment. Counsel for Governor Carey and Comptroller Regan, in a reply letter dated June 24, 1980, states that he is unaware of any such federal funds.

We have not heretofore been advised that federal money might be available to fund the Review Panel, nor was the district court, to our knowledge, advised of the availability of such funds. We therefore deny the petition for rehearing without prejudice to petitioners' presentation to the district court of evidence showing that Governor Carey has such money at his disposal.

19800728

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