Petition for Writ of Certiorari — Alaska Airlines, Inc. v. Brock

| Supreme Court, U.

FILED

NOV 27 1865

85-920)

Suprene Court of the United States

IN THE

OCTOBER TERM, 1985

ALASKA AIRLINES, INC., et al.,

Petitioners,

We

WILLIAM E. BROCK, SECRETARY OF LABOR, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

WILLIAM T. COLEMAN, JR.

Counsel of Record

DONALD T. BLISS

JOHN H. BEISNER

JAMES P. NEHF

O’MELVENY & MYERS

1800 M Street, N.W.

Washington, D.C. 20036

(202) 457-5325

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

The United States Court of Appeals for the District of

Columbia Circuit has created a completely new standard

for determining whether the unconstitutional provisions

in a statutory section may be severed from the remaining

provisions. Under this standard, the traditional approach

of determining congressional intent is no longer the lode-

star. It has been replaced by a requirement that the

challenging party show that Congress would have pre-

ferred no legislation in the subject area at all rather

than the remaining provisions of the statutory section.

The questions thus presented are:

1. Did the D.C. Circuit err by establishing a new sev-

erability standard that would allow the remaining statu-

tory provisions to survive even though they function con-

trary to congressional intent and there is evidence that

' Congress would have enacted a different type of statute

if it had known that certain provisions were invalid?

2. Did the court of appeals err in holding that a legis-

lative veto provision in the employee protection program

in Section 43 of the Airline Deregulation Act of 1978, 49

U.S.C. app. § 1552 (1982), is severable from the remain-

der of that section simply because the court concluded

that Congress would have preferred the severed statute

to no employee protection at all?

(i)

ii

PARTIES TO THE PROCEEDINGS

Petitioners are Alaska Airlines, Inc.; American Airlines,

Inc.,; Capitol Air, Inc.; Delta Air Lines, Inc.; The Flying

Tiger Line, Inc.; Midway Airlines, Inc.; Northwest Air-

lines, Inc.; Ozark Air Lines, Inc.; Piedmont Aviation,

Inc.; Trans World Airlines, Inc.; United Air Lines, Inc.;

USAir, Inc.; Western Air Lines, Inc.; and Wien Air

Alaska, Inc.*

Respondents are William E. Brock, individually and as

Secretary of Labor (as successor in office to Raymond J.

Donovan); United States Department of Labor; the

United States of America; and the following intervenors:

Air Line Pilots Association, International; Association of

Flight Attendants; Brotherhood of Railway and Airline

Clerks; Flight Engineers’ International Association; In-

ternational Association of Machinists and Aerospace

Workers; and Transport Workers Union of America.

Amici are Air Florida; Air One, Inc.; Arrow Air, Inc.;

Empire Airlines; People Express Airlines, Inc.; and

Southwest Airlines Co.

*In accordance with Supreme Court Rule 28.1, the parent com-

panies, subsidiaries (except wholly owned subsidiaries) and affili-

ates of petitioners are set forth in App. D hereto.

TABLE OF CONTENTS OF PETITION

QUESTIONS PRESENTED ...........2....22-2.220.-221c-ecc-eesee00=

PARTIES TO THE PROCEEDINGS ..........-..-......

TABLE OF CONTENTS OF PETITION .........00.0........

TABLE OF CONTENTS OF APPENDIX ..................

TABLE OF AUTHORITIES ................00.22..200.2----20-00---

OPINIONS BELOW ........................... sarciietielitenmnnncsiiiddaigiiin

TORI oxnccccccntinsccsciceeceninnesesesits reesnoesicinncnsesniacisielilinn

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED .........0.000-0----2.---- eee.

I - acdscicenittensesiticistnsainiaitiniinritcasibcamsaiieaieisicilcaiilaianiipda

A. Statutory Background ~.........22222..222...eeceeceeec eens

B. Proceedings Below .............-.-..-..-....---------+-----00--0--+-

REASONS FOR GRANTING THE WRIT ...................

I. THE TEST FOR SEVERABILITY ADOPTED

BY THE COURT OF APPEALS IS CON-

TRARY TO SUPREME COURT PRECEDENT..

II. THE DECISION BELOW CREATES A CON-

FLICT IN THE SEVERABILITY ANALYSIS

AMONG THE CIRCUIT COURTS .......................

III. UNDER TRADITIONAL SEVERABILITY

DOCTRINE, THE LEGISLATIVE VETO PRO-

VISION IS INSEVERABLE FROM THE RE-

MAINDER OF SECTION 48 ...................--..--------

CTI cencencsccccsescsncennsnnitiinpiinsinnsmnanaesennpeittaniiiiiin

11

16

20

iv

TABLE OF CONTENTS OF APPENDIX

Page

. Opinion and Judgment of the United States Court of

Appeals for the District of Columbia Circuit ............. la

. Opinion of the United States District Court for the

I a a alt aan eects 30a

. Constitutional Provisions, Statutes and Regulations

EE aa DE SR es ee ac 38a

. Petitioners’ Parent Companies, Subsidiaries (Ex-

cept Wholly Owned Subsidiaries) and Affiliates,

Pursuant to Supreme Court Rule 28.1 ....................... 63a

v

TABLE OF AUTHORITIES

CASES Page

Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550

A 1, 7, 8, 12, 20, 21

Alaska Airlines, Inc. v. Donovan, 594 F. Supp. 92

(D.D.C. 1984), rev’d, 766 F.2d 1550 (D.C. Cir.

RETEST A eee eee NR DON Cea 1, 3, 6,7

Aptheker v. Secretary of State, 378 U.S. 500

EE er a ee nee 12, 13

Bellotti v. Baird, 443 U.S. 622 (1979) 2.000000. 18

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).. 11

Califano v. Westcott, 443 U.S. 76 (1979) .....00000... 13

Carter v. Carter Coal Co., 298 U.S. 238 (1936) ........ 12, 15

Champlin Refining Co. v. Corporation Commission,

ERS are ee 11,13

Davis v. Wallace, 257 U.S. 478 (1922) 0.000000... 19

Donovan v. Richland County Association for Re-

tarded Citizens, 454 U.S. 389 (1982) 2.000000... 7-8, 8

EEOC v. Allstate Insurance Co., 104 S. Ct. 3499

I ial ia alice 8,11

EEOC v. Allstate Insurance Co., 570 F. Supp. 1224

(S.D. Miss. 1983), appeal dismissed, 104 S. Ct.

I i 19

EEOC v. CBS, Inc., 743 F.2d 969 (2d Cir. 1984)... 17

EEOC v. Hernando Bank, Inc., 724 F.2d 1188 (5th

Re a Le ee 18

EEOC v. Pan American World Airways, 576 F.

Supp. 1530 (S.D.N.Y. 1984) _...00000020 eee 11

El Paso & Northeastern Railway v. Gutierrez, 215

SRN er Se eS ee 15

Gavett v. Alexander, 477 F. Supp. 1035 (D.D.C.

I citeliariihi achat deh lacsad eshiatisnlaehcata die abi ailhlaebeaianingun 19

Gulf Oil Corp. v. Dyke, 734 F.2d 797 (Temp. Emer.

Ct. App. 1984), cert. denied, 105 S. Ct. 173

EER ATEERER Ee eee ee ae Oe Oe oe 16

Heckler v. Edwards, 104 §. Ct. 1532 (1984) ............ 8

Heckler v. Mathews, 104 S. Ct. 1887 (1984) _........ 12, 19

Hooper v. Bernalillo County Assessor, 105 S. Ct.

ERR Ee ene a 14

Immigration and Naturalization Service v. Chadha,

462 U.S. 919 (1983) ............0.......... 4, 8, 10, 11, 12, 14, 15

vi

TABLE OF AUTHORITIES—Continued

Page

Larson v. Domestic & Foreign Commerce Corp.,

ke EF 7

McCorkle v. United States, 559 F.2d 1258 (4th Cir.

1977), cert. denied, 484 U.S. 1011 (1978) ............ 18-19

Muller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir.

eA ne ae Oe 19

New York v. Ferber, 458 U.S. 747 (1982) ............... 12

Process Gas Consumers Group v. Consumer Energy

Council of America, 463 U.S. 1216 (1983) -......... 11, 15

Railroad Retirement Board v. Alton Railroad, 295

Sr i eidamnieneth 12

Regan v. Time, Inc., 104 S. Ct. 3262 (1984) ....12, 13, 14, 17

Rhode Island Federation of Teachers v. Norberg,

630 F.2d 855 (ist Cir. 1980) .........---22-. eee 19

Scheinberg v. Smith, 659 F.2d 476 (5th Cir. 1981) .. 18

Sloan v. Lemon, 413 U.S. 825 (19738) ....................----- 12

Southwestern Oil Co. v. Texas, 217 U.S. 114

al alt 15

Spraigue v. Thompson, 118 U.S. 90 (1886) -.............. 15,17

United States v. Jackson, 390 U.S. 570 (1968) ........ 15

United States v. Nixon, 418 U.S. 683 (1974) .......... 7

Utah Power & Light Co. v. Pfost, 286 U.S. 165

ene 18, 19

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926)...... 13

CONSTITUTIONAL AND STATUTORY

PROVISIONS ,

ee Tee NEN en 2

oF eR Xe § & eee 2

Airline Deregulation Act of 1978, Pub. L. No. 95-

504, 92 Stat. 1705 (codified in scattered sections

CE GD UTIL. GUD. COIR ) cncesvccencencccsceccocscstecsoccccces passim

49 U.S.C. app. § 1301 note (1982) 2.00002. 14

49 U.S.C. app. § 1552 (1982)... passim

49 U.S.C. app. § 1662 (a) .............222.......eecceeeeeeeeee 3

49 U.S.C. app. § 1552 (pb)... eee 3

49 U.S.C. app. § 1552(c) 2... noone eee cccceeeeeeeee 3

49 U.S.C. app. § 1662 (d) .....................2..............- 3

———_——_— —

vii

TABLE OF AUTHORITIES—Continued

Page

49 U.S.C. app. § 1552 (f) (2) .......0000 4

49 U.S.C. app. § 1552(f) (3) -....02202..e ee. 4

49 U.S.C. app. § 1552 (f) (4) -........- en... 4

49 U.S.C. app. § 1552 (h) (1) «2.000... 3

Federal Aviation Act, 49 U.S.C. app. § 1301 note

ECR SERRE Rvs rarer nO nT oe ce eet 14

Federal Salary Act, 2 U.S.C. § 359(1) (B) (1976).. 18

Reorganization Act of 1977, 5 U.S.C. §§ 901, et

I a i 17

Reorganization Act Amendments of 1984, Pub. L.

No. 98-614, 98 Stat. 3192 (1984) 2000. 17

ee a. eenpidsasensinidinnnnion 6,7

28 U.S.C. § 1254(1) (1982) ................00000.. ee. 1,7

Be Oe I ID oii etcecceesencemsncmnentnvvtocnattococce 8

. LEGISLATIVE AND EXECUTIVE MATERIALS

S. Rep. No. 631, 95th Cong., 2d Sess. (1978) —......... 3, 20

H.R. Rep. No. 1779, 95th Cong., 2d Sess. (1978) .... 21-22,

22

48 Fed. Reg. 52,854 (1983) ....... See de SRO IP 2, 4,5

4

f

.

.

!

cx

*

i

~ .

-

IN THE

Suyperas Court of the United States

OCTOBER TERM, 1985

No. 85-

ALASKA AIRLINES, INC., et al.,

. Petitioners,

WILLIAM E. BROCK, SECRETARY OF LABOR, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Alaska Airlines, Inc., et al., hereby petitions for a writ

of certiorari to the United States Court of Appeals for

the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, reversing the dis-

trict court, is reported at 766 F.2d 1550 (D.C. Cir.

1985), and appears at App. A. The opinion of the dis-

trict court is reported at 594 F. Supp. 92 (D.D.C. 1984),

and appears at App. B.

JURISDICTION

The opinion and judgment of the court of appeals was

entered on July 16, 1985. The court of appeals denied

petitioners’ petition for rehearing and suggestion for re-

hearing en bane on September 11, 1985. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1) (1982).

2

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED

United States Constitution, Article I, Section 1.

United States Constitution, Article I, Section 7, Clauses

2 and 3.

Section 43 of the Airline Deregulation Act of 1978, 49

U.S.C. app. § 1552 (1982).

Department of Labor regulations under Section 43 of

the Airline Deregulation Act of 1978, 48 Fed. Reg.

52,854-65 (1983).

The constitutional provisions, statutes and regulations

involved are reprinted in App. C.

STATEMENT

The D.C. Circuit has adopted and applied in this case

a completely new standard for determining whether Con-

gress intended a statutory section to survive even though

integral provisions therein have been held unconstitu-

tional. Under the court’s test, a preferential hiring

scheme authorized in Section 43 of the Airline Deregula-

tion Act of 1978 (hereinafter “Deregulation Act” or

“ADA”) would survive even though it functions contrary

to the intent of Congress unless the challenging party

can demonstrate to the court that Congress would have

preferred no employee protection program at all. The

traditional test—-whether Congress would have intended

the surviving provisions of the section to function inde-

pendently of the invalidated provisions—has been dis-

carded. Thus, the court rejected as irrelevant evidence

that Congress would have preferred a different form of

employee protection if it had known that certain provi-

sions in the program it enacted were invalid.

A. Statutory Background

In 1978, Congress passed the Deregulation Act, which

mandated the phasing out of economic regulation of do-

mestic aviation. See Pub. L. No. 95-504, 92 Stat. 1705

3

(1978) (codified in scattered sections of 49 U.S.C. app.

(1982)). Congress correctly predicted that deregulation

would increase airline industry employment overall, S.

Rep. No. 631, 95th Cong., 2d Sess. 113, 115 (1978) (here-

inafter “Senate Report”), but it recognized the “theoreti-

cal possibility” that some employees might lose their jobs

as a direct result of the ADA. Jd. at 113. As “insurance”

against this unlikely contingency, it enacted Section 43,

which authorized certain benefits for “protected employ-

ees,” i.e., employees who as of October 24, 1978, had at

least four years of employment with an airline then

certificated by tne Civil Aeronautics Board (“CAR”).

Section 43(h) (1), 49 U.S.C. app. § 1552(h)(1) (1982).

Subsection (f) of Section 43 authorized the Department

of Labor (“DOL”) to issue regulations, subject to a leg-

islative veto, to implement the two “closely linked com-

ponents” of the employee protection program (“EPP”).

Alaska Airlines, Inc. v. Donovan, 594 F. Supp. 92, 93

(D.D.C. 1984), rev’d, 766 F.2d 1550 (D.C. Cir. 1985).

First, if an air carrier experienced severe work force

contractions or bankruptcy as a result of the Deregulation

Act, its furloughed or terminated “protected employees”

were entitled to monthly assistance payments and other

monetary benefits from the federal government. See Sec-

tion 43(a), (b), (ec), 49 U.S.C. app. § 1552(a), (b), (ec).

DOL was to publish guidelines establishing the amount of

assistance payments for various employment categories.

As the second part of the program, selected airlines (7.e.,

CAB-certificated carriers as of October 24, 1978) were to

have a duty to hire “protected employees” who were ter-

minated by competing airlines. See Section 43(d), 49

U.S.C. app. § 1552(d). DOL proposed extensive regula-

tions to implement this part.

Since Congress was uncertain about the need for, and

dimensions of, such a new regulatory program in an act

whose purpose was deregulation, it established unusually

elaborate procedures to ensure continuing congressional

4

involvement in the program’s development. Congress di-

rected DOL to promulgate regulations implementing the

EPP “within six months” of October 24, 1978. Section

43(f) (2), 49 U.S.C. app. § 1552(f) (2). It further estab-

lished a two-stage congressional review process. First,

proposed rules were to be submitted to congressional com-

mittees responsible for aviation oversight for thirty “‘leg-

islative days” (i.e., days “on which both Houses of Con-

gress are in session”). Section 43(f) (3), (4), 49 U.S.C.

app. § 1552(f) (3), (4). Thereafter, DOL’s final rules

were to be submitted to the entire Congress for an addi-

tional sixty “legislative day” review period. /d. During

this period the rules were subject to veto by either house

of Congress. This is the only legislative veto provision in

the entire Deregulation Act. It expressly limited and ex-

clusively applied to Congress’ Section 43(f) grant of new

regulatory authority to DOL, a Department not other-

wise involved in airline deregulation. The Deregulation

Act does not contain a severability clause.

Despite the six-month deadline, DOL did not publish

the final regulations at issue here until November 22,

1983, five years after the statutory deadline. See 48 Fed.

Reg. 52,854 (1983). Tre regulations ignored the Govern-

ment’s compensation obligations under Section 43 and at-

tempted to implement c ily the duty to hire aspects of the

EPP. On June 23, 1983, this Court had declared legisla-

tive veto provisions unconstitutional, Jmmigration and

Naturalization Service v. Chadha, 462 U.S. 919 (1983),

but DOL nonetheless delayed the regulations’ effective

date for sixty legislative days (7.e., until on or about

May 17, 1984).*

The regulations establish a preferred class of “desig-

nated employees,” which includes employees terminated or

furloughed for reasons totally unrelated to deregulation.

See 48 Fed. Reg. 52,854, at 52,861-62 (1983). The regu-

1 The final regulations are reprinted in App. C.

5

lations impose novel and extraordinary obligations on

some, but not all, commercial air carriers. See id. at

52,862-64. These include a mandatory obligation to hire

“designated employees” laid off by competitors for any

job vacancies (¢.g., pilots, flight attendants, accountants,

secretaries, marketing specialists) before considering any

other job applicants, regardless of the applicants’ com-

parative qualifications. This obligation overrides safety-

related airline hiring policies and most affirmative action,

veterans preference, and other legal hiring duties imposed

on the airlines by federal statute. See id. § 220.10., .11,

.20, .21, .28(j), .24, .29. The hiring duty even extends

to persons who are gainfully employed in their occupa-

tional specialty by a competing airline at the time they

apply. The consistency of DOL’s expansive duty-to-hire

program with the statutory purpose could not be tested

as Congress had intended because the legislative veto had

been declared invalid prior to promulgation of the regula-

tions.

B. Proceedings Below

In February 1984, petitioners brought this action

against DOL in the district court, and on March 9, 1984,

they filed a motion for summary judgment challenging

the statute and regulations on several grounds. DOL and

several labor union intervenors’ then filed cross-motions

for summary disposition.

On May 18, 1984, the district court (Judge Gesell)

granted petitioners’ motion for summary judgment, de-

claring Section 43 unconstitutional. The court held that

the invalid legislative veto provision therein “is inex-

2Intervenors are Air Line Pilots Association, International;

Association of Flight Attendants; Brotherhood of Railway and

Airline Clerks; Flight Engineers’ International Association; Inter-

national Association of Machinists and Aerospace Workers; and

Transport Workers Union of America (the latter four hereinafter

collectively referred to as “BRAC’”’).

6

tricably bound to the remainder of that section and that

Congress would not have enacted the remainder of § 43

in its absence.” 594 F. Supp. at 96 (footnote omitted).

Judge Gesell described the applicable standard as follows:

The question is not, of course, whether Congress

would have enacted some type of employee protec-

tion plan in the absence of a legislative veto provi-

sion; rather, the issue is whether Congress would

have enacted the same statute. If not, the Court

cannot enforce the remainder of the statute merely

because it might be an approximation of what Con-

gress would have enacted. The task of determining

the most preferable alternative to an unconstitu-

tional statute belongs not to the courts, but to Con-

gress itself.

Id. at 94 n.8 (emphasis original). The district court

found Section 43 severable from the balance of the De-

regulation Act. Jd. at 96 n.5.*

On July 16, 1985, the court of appeals reversed, setting

forth an entirely different standard for determining sev-

erability. The court held that the test was not whether

Congress would have enacted the rest of Section 43 in the

form and language it chose if it knew the one-house veto

was unconstitutional. Instead, it held that the remaining

parts of the statute must remain as law unless petitioners

could show that Congress would have enacted no law on

the subject at all if at the time of enactment it had

known that parts thereof would be declared unconstitu-

tional:

[T}he challengers must show that it is evident that

Congress would have preferred no airline employee

% Pursuant to 28 U.S.C. § 1252, BRAC filed a direct appeal and

application for a stay of judgment pending appeal in the Supreme

Court of the United States. On May 28, 1984, Chief Justice Burger,

acting as Circuit Justice, denied BRAC’s stay application, and

BRAC later withdrew the appeal before the Supreme Court deter-

mined whether it had exclusive jurisdiction.

7

protection provision at all to the existing provision

sans the veto provision.

766 F.2d at 1561. See also id. at 1560, 1563 and 1564.*

REASONS FOR GRANTING THE WRIT

This case presents a question of wide-reaching, funda-

mental importance: In what circumstances should the re-

maining parts of a section of a statute survive as valid

law if one part of the same section is declared unconstitu-

tional? In reversing the district court, the court of ap-

peals set forth a novel standard of severability that is

contrary to decisions of this Court and is in direct con-

flict with the severability analysis employed in decisions

of other circuits. If allowed to stand, the test will result,

as in this case, in statutes being permitted to operate in

a way Congress never intended.’

*On September 11, 1985, the court denied petitioners’ petition

for rehearing and suggestion for rehearing en banc. On Septem-

ber 28, 1985, the court also denied petitioners’ motion for stay of

the mandate. Because it invalidated Section 43 in its entirety on the

legislative veto issue, the district court did not reach petitioners’

other narrower challenges to the regulations. The remaining issues

are now before the district court following the court of appeals’

reversal and remand. Supreme Court review of the severability

issue, which concerns the constitutionality of Section 43 in its

entirety, however, is now timely under 28 U.S.C. § 1254(1). See

United States v. Nizon, 418 U.S. 683 (1974); Larson v. Domestic

& Foreign Commerce Corp., 337 U.S. 682 (1949).

5 The court of appeals also improperly rejected petitioners’ con-

tention that the appeal should have been brought directly in the

Supreme Court, not the court of appeals. See 766 F.2d at 1555-56.

Title 28 U.S.C. § 1252 gives the Supreme Court jurisdiction over

appeals from district court decisions holding federal statutes un-

constitutional in civil actions to which the government is a party.

Since Judge Gesell held Section 43 unconstitutional! in its entirety,

see 594 F. Supp. at 96, and the other conditions of Section 1252 are

met here, exclusive jurisdiction over this appeal properly lies in the

Supreme Court. See Donovan v. Richland County Association for

8

Under the standard now adopted by the D.C. Circuit

the remaining parts of a statute must remain in force

unless the challenger can meet the heavy burden of show-

ing that Congress would have enacted no law on the sub-

ject at all if at the time of enactment it had known that

parts of the statute it did enact would be declared un-

constitutional. Alaska Airlines, Inc. v. Donovan, 766

F.2d at 1560, 1561, 1563 and 1564. In order to satisfy

this test, petitioners were required to prove that Con-

gress would not have enacted any kind of protection for

Retarded Citizens, 454 U.S. 389 (1982). For that reason alone, the

court of appeals’ decision must be vacated. Jd. at 390.

The Supreme Court did refuse to accept jurisdiction in another

legislative veto case, EEOC v. Allstate Insurance Co., 104 8. Ct.

3499 (1984), but it gave no reasons, and the issue presented there,

which involved a challenge to the remedy ordered by the district

court, rather than a challenge to the court’s holding that the statute

in question was unconstitutional, see id. at 3499 (Burger, C.J., dis-

senting), is distinguishable from the issue presented here. Appellants

below did not merely appeal the remedy ordered by Judge Gesell,

but instead directly challenged his conclusion that the legislative veto

provision was not severable from the remainder of Section 43, thus

rendering the entire section unconstitutional. See Brief for Appel-

lant Secretary of Labor at 1-2. This Court has recognized that if an

entire statute is invalidated because it contains an unconstitutional

part, the constitutionality of the entire statute is at issue. See,

e.g., Chadha, 462 U.S. at 931 (issue is whether Ҥ 244 in its entirety

is violative of the Constitution”). This case, therefore, is squarely

within the scope of Section 1252:

If the District Court’s dismissal is to be overturned, the

appellate court must overturn the holding that the Act in its

entirety is unconstitutional. In the words of Heckler v. Edwards

[104 S. Ct. 1532, 1538 (1984) ], “the issue on appeal is the hold-

ing of statutory constitutionality.”

EEOC v. Allstate, 104 S. Ct. at 3501 (Burger, C.J., dissenting). Since

appellants had a right to pursue a direct appeal in the Supreme

Court, the court of appeals was deprived of jurisdiction. Donovan v.

Richland County, 454 U.S. at 389-90; 28 U.S.C. $1291 (1982)

(“courts of appeals . . . shall have jurisdiction of appeals from all

final decisions of the district courts of the United States .. . except

where a direct review may be had in the Supreme Court”).

9

displaced airline employees if it had known that it

could not exercise a veto power over DOL’s regulations

purporting to implement the program it authorized. This

standard ignores the very real possibility that, although

Congress wanted some type of employee protection plan,

it could well have preferred a different statute—e.g., one

with less discretion left to DOL—had it known that it

was without power to veto the program created by the

agency regardless of how far the program strayed from

Congress’ intent. In this case the issue is not theoretical

for, as shown in Part III below, the congressional con-

ference committee had a clear choice of another, more

traditional form of employee protection in the House bill,

which did not contain a legislative veto. Instead, the

conference committee opted for the novel approach au-

thorized by the Senate which was subject to the veto

‘check.

The well-established precedent of this Court, as well

as other circuits, discussed in Parts II and III infra,

unequivocally demonstrates that the question is not

whether Congress would have preferred some legislation

on the issue to nothing at ail, but whether Congress

would have enacted the surviving provisions in the form

and language it actually chose had it known that other

parts of the same section would be declared invalid. To

hold otherwise would allow a statute to remain on the

books simply because it addresses an issue of concern to

Congress, even though it creates rights and duties differ-

ent from those Congress would have created if the court

had left to it the task of enacting constitutionally valid

legislation.

The court of appeals’ new standard for ascertaining

congressional intent whenever part of a statute is invali-

dated extends far beyond the confines of this case. This

new test may have some superficial appeal since invali-

dation of the entire statute under the traditional stand-

ard often results in a legislative vacuum in the subject

area—at least until Congress acts again. The D.C. Cir-

10

cuit’s approach, however, would require the courts to

rewrite acts of Congress by excising certain provisions.

The result would be affirmative legislation which does

not operate as Congress intended.

Since it is almost impossible for a challenging party

to show that Congress would have preferred no legisla-

tion at all in a subject area where it has chosen to legis-

late, the D.C. Circuit test virtually guarantees sever-

ance. Thus, the practical difference between this new

test and the traditional standard applied by Judge Gesell

is that statutes will now survive even though it is evi-

dent that Congress would have enacted a different type

of statute without the invalid provisions. The courts will

be creating laws that Congress would not have created

because the courts will presume that Congress would

rather have something than nothing. This approach

overlooks the fact that Congress is perfectly capable of

filling the vacuum of no legislation with a statute of its

own design rather than the court’s design. Any burden

this places on Congress is no greater than the burden

placed by the Constitution, and it avoids judicial inter-

vention into the legislative process. That intervention is

analogous to the legislative intervention into the execu-

tive function that this Court declared invalid in Chadha,

or the executive intervention into the legislative process

epitomized by the item veto. In each case, what remains

after the intrusion is a program which functions incon-

sistently with the desires of the constitutionally respon-

sible branch of government. Given the importance of the

standard of legislative intent applied by the D.C. Circuit,

its test, both new and novel, should be reviewed by this

Court.

Such review is desirable for additional, practical rea-

sons as well in the wake of this Court’s invalidation

of legislative veto provisions in Chadha. Since Congress

has reserved a legislative veto power in nearly 200 stat-

utes, see Chadha, 462 U.S. at 967 (White, J., dissenting),

the severability of those provisions will continue to be

11

addressed in the lower courts until Congress has amended

each law, or until each statute has been judicially re-

viewed. Without further guidance from this Court, the

lower courts will continue to struggle with the severabil-

ity issue and formulate an array of different approaches

that will inevitably yield inconsistent results. See, e.g.,

EEOC v. Pan American World Airways, 576 F. Supp.

1530, 1535 (S.D.N.Y. 1984) (“there is no clear signal

from the Supreme Court to assist the inferior courts in

dealing with a host of foreseeable post-Chadha prob-

lems.”). See also EEOC v. Allstate Insurance Co., 104

S. Ct. 3499 (1984) (Burger, C.J., and O’Connor, J., dis-

senting from dismissal of appeal for want of jurisdic-

tion) (acknowledging that “lingering questions” remain

in the wake of Chadha) ; Process Gas Consumers Group

v. Consumer Energy Council of America, 463 U.S. 1216,

°1218 n.* (1983) (White, J., dissenting) (case presents

the “important question of whether the legislative veto

is severable’).

I. THE TEST FOR SEVERABILITY ADOPTED BY

THE COURT OF APPEALS IS CONTRARY TO

SUPREME COURT PRECEDENT

For more than half a century this Court has held con-

sistently that if one part of a statutory section is declared

unconstitutional the entire section must fall if “ ‘it is evi-

dent that the Legislature would not have enacted those

provisions which are within its power, independently of

that which is not.’” Chadha, 462 U.S. at 931-32 (em-

phasis added) (quoting Champlin Refining Co. v. Cor-

poration Commission, 286 U.S. 210, 234 (1932)). See

also Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per

curiam). Under that standard, inseverability does not

require a judicial conclusion that Congress would have

preferred no legislation on the subject rather than a

statute with the invalid part severed. Challenged legis-

lation must fall if Congress would have enacted either

no statute at all or a statute in different form and lan-

12

guage. See, e.g., Sloan v. Lemon, 413 U.S. 825, 834

(1973) (severability improper if the remaining provi-

sions would “create a program quite different from the

one the legislature actually adopted.’’)

The question of severability is a simple one: “What

was the intent of the lawmakers?” Carter v. Carter

Coal Co., 298 U.S. 238, 312 (1936).° Again, the relevant

legislative intent is not whether Congress would have pre-

ferred the remaining parts of the statute to nothing at

all because that would permit a court, through selective

severance of provisions, to rewrite the statute in a way

Congress did not intend. The Court has cautioned time

and again that a reviewing court is not

license[d] . . . to usurp the policy-making and leg-

islative functions of duly-elected representatives

.... “[AJlthough this court will often strain to

construe legislation so as to save it against consti-

tutional attack, it must not and will not carry this

to the point of perverting the purpose of a statute

... or judicially writing it.”

Heckler v. Mathews, 104 S. Ct. 1887, 1896 (1984) (quot-

ing Aptheker v. Secretary of State, 378 U.S. 500, 515

(1964). These principles of judicial restraint apply with

equal force in the context of severability analysis:

6 Even though the Deregulation Act does not contain a severabi!-

ity clause, the court of appeals relied on a strong presumption in

favor of severability to shortcut its analysis, citing Chadha and

Regan v. Time, Inc., 104 S. Ct. 3262, 3269 (1984), for the proposi-

tion that a statute is presumed severable if what remains is “fully

operative as law.” 766 F.2d at 1559-60. The statute at issue in

Chadha, however, contained a severability clause, and the “pre-

sumption” in Regan was not embraced by the majority of the Court.

In the final analysis, “severability is exclusively a question of legis-

lative intent.” Regan, 104 S. Ct. at 3275 n.2 (Brennan, J., con-

curring in part and dissenting in part) (citing New York v.

Ferber, 458 U.S. 747, 769 n.24 (1982)). See also Carter v. Carter

Coal Co., 298 U.S. at 313; Railroad Retirement Board v. Alton Rail-

road, 295 U.S. 330 (1935). As shown in Part III infra, the

court’s heavy reliance on the presumption distorted its analysis of

congressional intent.

13

{[C]ourts addressing questions of severability should

be guided by Chief Justice Taft’s admonition “that

amendment may not be substituted for construction,

and that a court may not exercise legislative func-

tions to save fa] law from conflict with constitu-

tional limitation.”

Regan v. Time, Inc., 104 S. Ct. 3262, 3275 (1984) (Bren-

nan, J., concurring in part and dissenting in part)

(quoting Yu Cong Eng v. Trinidad, 271 U.S. 500, 518

(1926)). See also Califano v. Westcott, 443 U.S. 76,

94-95 (1979) (Powell, J., concurring in part and dissent-

ing in part) (“[The court] should not use its remedial

powers to circumvent the intent of the legislature.

Rather than thus rewriting [the statute|, we should leave

this task to Congress.” )

This Court has never held that a severed statute can

remain as law simply because a reviewing court con-

cludes that Congress would have preferred the modified

version of what it enacted to nothing at all. See Ap-

theker v. Secretary of State, 378 U.S. 500,.515 (1964)

(“{T]his court will not consider the abstract question of

whether Congress might have enacted a valid statute but

instead must ask whether the statute that Congress did

enact will permissibly bear a construction rendering it

free from constitutional defects’). The relevant issue

of legislative intent is whether “the legislature would

have been satisfied with what remained.” Champlin

Refining, 286 U.S. at 235 (emphasis added); see also

Utah Power & Light Co. v. Pfost, 286 U.S. 165, 184-85

(1932) (if the court concludes “that the legislature would

not have been satisfied with the statute unless it had

included the invalid part,” it must hold the law to be

nonseverable) .

The Court has recently reaffirmed the standard applied

by the district court but rejected by the court of appeals

in this case, stating that the severability issue is “whether

the .. . Legislature would have enacted the statute with-

14

out the invalid portion.” Hooper v. Bernalillo County

Assessor, 105 S. Ct. 2862, 2869 (1985) (emphasis added).

The Court’s decision in Regan v. Time is another recent

example of this well-established approach. A plurality

there held that statutory prohibitions on the use of photo-

graphic reproductions of currency violated the First

Amendment insofar as they prohibited use for certain

purposes, but found that valid provisions of the same

statute regulating the size and color of such reproduc-

tions could be enforced. In concluding that the size and

color restrictions were severable from the purpose re-

quirement, the plurality asked whether the valid restric-

tions as enacted fulfilled the congressional purpose. See

Regan, 104 S. Ct. at 3270. They did not ask whether

Congress would have preferred not to regulate the repro-

duction of currency at all if it had known at the time of

enactment that it could not restrict the purposes of such

reproductions.

Besides Regan, the only other recent decision of this

Court discussing the severability doctrine at any length

is Chadha, but that case presented a much easier ques-

tion because the statute at issue contained a severability

clause, thus creating a presumption of severability and

making it unnecessary to “embark on [the] elusive in-

quiry” of legislative intent. 462 U.S. at 932.7 Despite the

Section 43 is not subject to the general severability provision

enacted in 1958 as part of the Federal Aviation Act (“FAAct’’), 49

U.S.C. app. § 1301 note (1982). Examination of the entire ADA

reveals numerous provisions that do expressly amend the FAAct,

see §§ 2-40, 92 Stat. at 1705-47, as well as provisions that amend

other federal statutes. See, e.g., § 41, id. at 1748 (repealed 1982)

(amending the Airport and Airway Development Act of 1970).

But unlike these other provisions, the text of Section 43 of the

Deregulation Act does not purport to amend the FAAct or any pre-

existing federal statute. See “codification” note to 49 U.S.C. app.

§ 1552 (1982) (Section 43 was “enacted as part of the Airline

Deregulation Act of 1978, and not as pari of the Federal Aviation

Act of 1958... .”). Thus, Section 43 is not part of the FAAct, and

15

severability clause, the Court still examined the legislative

history in detail to ascertain whether Congress would

have enacted the remaining provisions without the

legislative veto. Jd. at 932-34. Justice Rehnquist’s sev-

erability analysis in dissent is particularly instructive.

Joined by Justice White, he observed that the Court has

held several times that provisions limiting the operation

of a statute, such as veto provisions, are not generally

severable because

“by rejecting the exceptions intended by the legis-

lature ... the statute is made to enact what con-

fessedly the legislature never meant. It confers

upon the statute a positive operation beyond the leg-

islative intent, and beyond what anyone can say it

would have enacted in view of the illegality of the

exceptions.”

Id. at 1014 (Rehnquist, J., dissenting) (quoting Spraigue

v. Thompson, 118 U.S. 90, 95 (1886) ).*

The legislative history of Section 43 demonstrates that

Congress would not have granied DOL unfettered rule-

making authority without retaining a one-house veto.

See infra at Part III. Under traditional severability

analysis, that fact would mandate a finding of nonsever-

ability, but under the court of appeals’ test, it is not

enough. Petitioners also had to prove that Congress

the general severability clause enacted twenty years earlier in

the FAAct is not applicable to Section 43.

The absence of a severability clause “itself suggests the insever-

ability of the provision.” Process Gas Consumers Group v. Con-

sumer Energy Council of America, 463 U.S. at 1218 n.* (White,

J., dissenting). See also Carter Coal, 298 U.S. at 312. Cf.

United States v. Jackson, 390 U.S. 570, 585 n.27 (1968) (“the ulti-

mate determination of severability will rarely turn on the presence

or absence of such a clause”).

8 See also Southwestern Oil Co. v. Texas, 217 U.S. 114 (1910);

El Paso & Northeastern Railway v. Gutierrez, 215 U.S. 87, 97

(1909).

16

would have preferred no employee protection plan if it

could not have used the veto device as a check on DOL’s

program. Such a standard ignores the only relevant

inquiry—whether, absent the invalid provision, Congress

would have been satisfied with what remained. It would

be a rare case in which a responsible court could conclude

confidently that Congress would have preferred no legis-

lation at all on a given issue rather than a modified

version of what it enacted. If the court of appeals’ deci-

sion is not reviewed, it necessarily wil! allow statutes to

operate, as in this case, in a way Congress did not

interd, simply hecause the court believes that the revised

statute is “better than nothing.” :

II. THE DECISION BELOW CREATES A CONFLICT

IN THE SEVERABILITY ANALYSIS AMONG THE

CIRCUIT COURTS

Courts in other circuits almost uniformly have agreed

that the reviewing court must look at the statute as actu-

ally enacted and determine whether Congress would have

been satisfied with the statute in the absence of the in-

valid provision, not whether the legislature would prefer

no statute at all rather than a modified version of it.’

® The only court that has adopted an approach similar to that of

the D.C. Circuit is the Temporary Emergency Court of Appeals in

Gulf Oil Corp. v. Dyke, 734 F.2d 797 (Temp. Emer. Ct. App. 1984),

cert. denied, 105 S. Ct. 173 (1984), on which the court in this case

relied. But unlike the D.C. Circuit, the court in Gulf Oil did not hold

the statute severable exclusively on the theory that Congress would

have preferred the modified version to nothing at all—based on its

examination of the legislative history, the court first held that the

statutes under review (two ene#ty policy acts) would have been en-

acted without the veto provisions. See 734 F.2d at 804. In contrast,

by limiting its inquiry to whether Congress would have preferred no

employee protection for airline employees if it could not have

retained a veto power, the court in this case failed even to consider

whether Congress would have enacted this particular statute—

with its broad delegation to DOL to establish a program—had it

known that the legislative veto device was not available to oversee

the program DOL adopted.

17

The Second Circuit, in invalidating the entire Reorgani-

zation Act of 1977, 5 U.S.C. §§ 901, et seg. (1982), be-

cause it contained an unconstitutional, inseverable legisla-

tive veto provision, applied the same severability standard

employed by the district court in this case: “[W]hether

Congress would have delegated to the President the

broad reorganizing authority granted him by the Act

without reserving for itself the one-house veto power

contained in 5 U.S.C. § 906(a).” EEOC v. CBS, Ince.,

743 F.2d 969, 971 (2d Cir. 1984). The court initially

observed that “to hold the veto provision to be severable

would confer upon the statute a positive operation beyond

the legislative intent ... .” Id. (citing Spraigue v.

Thompson, 118 U.S. 90, 95 (1886)). If the veto provi-

sion were severable, “the President alone then would have

been permitted to reorganize the executive branch with-

- out any congressional control over the process, short of

formal legislation, and this would have been contrary to

Congress’s intent as expressed in the Act, in the debates

on the Act, and in the committee reports that preceded

its enactment.” 743 F.2d at 971-72. The court concluded

that “without such a provision, Congress would have been

unwilling to delegate to the President such extensive

authority to reorganize the executive branch.” Jd. at

973.4

The Fifth Circuit, reviewing the severability of the

same veto provision, came to the opposite conclusion but

10 The court framed the issue alternatively as “whether Congress

was willing to turn the reorganization process over to the President

unrestricted and unsupervised.” 743 F.2d at 974.

11 Shortly after the Second Circuit invalidated the Reorganization

Act, Congress reenacted the statute without the veto provision.

See Reorganization Act Amendments of 1984, Pub. L. No. 98-614, 98

Stat. 3192 (1984). Thus, instead of judicial modification of the stat-

ute, as the D.C. Circuit would counsel, Congress passed revised legis-

lation as the Constitution intended. Cf. Regan v. Time, Inc., 104

S. Ct. at 3290 (Powell, J., concurring in part and dissenting in part)

(“[O]ne may assume that Congress—if necessary—would move

promptly to enact a more carefully drawn statute.’’).

18

employed the same standard for determining severability:

“whether Congress would have enacted the remainder

of the statute in the absence of the invalid provision.”

EEOC v. Hernando Bank, Inc., 724 F.2d 1188, 1190 (5th

Cir. 1984). Neither the Fifth nor the Second Circuit

asked whether Congress would have preferred no statute

governing the reorganization of the executive branch.

Both courts correctly sought to ascertain whether Con-

gress would have given the President such extensive au-

thority in the absence of the legislative veto provision.

The conflict between the standards applied in the

Fifth and D.C. Circuits was graphically demonstrated in

Scheinberg v. Smith, 659 F.2d 476 (5th Cir. 1981). A

Florida abortion statute required a woman under age 18

to obtain parental consent or a court order authorizing

the abortion. The Fifth Circuit held the court approval

provision unconstitutional in part because it authorized

the court to act in the “best interests” of the minor,

without regard to the minor’s maturity as is required

by Bellotti v. Baird, 443 U.S. 622 (1979). See 659 F.2d

at 480-81. The issue was whether the “best interests”

clause could be severed, leaving intact the parental con-

sent provision and the modified court approval option.

Despite its conclusion that “[t]he Florida Legislature

clearly wished to regulate an unmarried minor’s access

to abortion . . .,” see id. at 481, the court held that sev-

erance was improper and “refuse[d] the invitation to

enter the state legislative arena.” Jd. at 482.

The severability standard adopted in the Fourth Cir-

cuit is also diametrically opposed to the D.C. Circuit’s

approach. In holding a legislative veto provision in the

Federal Salary Act, 2 U.S.C. § 359(1)(B) (1976), in-

severable from the remainder of the Act, the court looked

to the specific provisions enacted and asked whether

“Congress would . . . have granted the President the

power to set congressional, executive, and judicial salaries

without this restriction.” McCorkle v. United States, 559

19

F.2d 1258, 1262 (4th Cir. 1977), cert. denied, 434 U.S.

1011 (1978). In concluding that Congress would not have

delegated such broad authority without the veto provision,

the court stated:

When the questioned clause restricts a power

granted by the legislature, the case against sever-

ance is strong. Otherwise, the scope of the power

would be enlarged beyond the legislature’s intent.

Id. at 1261-62 (citing Davis v. Wallace, 257 U.S. 478,

484 (1922)). The First and Sixth Circuits also employ

severability doctrines in conflict with the approach of the

D.C. Cireuit. See Rhode Island Federation of Teachers

v. Norberg, 630 F.2d 855, 863 (1st Cir. 1980) (issue is

“whether the legislature would have enacted [the valid

portion] independently of the [unconstitutional por-

tions]”); Muller Optical Co. v. EEOC, 743 F.2d 380,

387-88 (6th Cir. 1984) (issue is “whether Congress would

have passed the statute absent the offending provision

.... Whether Congress would have passed the Reorgani-

zational [sic] Act without the one-House veto provision

cee pen

In each of these cases the court tried to determine

whether the remaining provisions would operate as the

legislature intended and refused to speculate on whether

the legislature might have preferred the remaining pro-

visions to no legislation at all. The cases thus demon-

strate an approach to severability that upholds the intent

of the legislature without “usurp[ing] the policy-making

and legislative functions of duty-elected representatives.”

Heckler v. Mathews, 104 8S. Ct. at 1396. By requiring

petitioners to prove that Congress would have preferred

no protection for employees at all, the court of appeals

impermissibly substituted its own judgment for that of

12 See also Gavett v. Alexander, 477 F. Supp. 1035, 1050 (D.D.C.

1979) (quoting Utah Power & Light Co. v. Pfost, 286 U.S. 165,

184-85 (1932) ); EEOC v. Allstate Insurance Co., 570 F. Supp. 1224,

1230, 1232 (S.D. Miss. 1983), appeal dismissed, 104 S. Ct. 3499

(1984).

20

Congress. The proper inquiry is whether Section 43

would have been enacted in its current form if Congress

had known it could not retain power to veto DOL regu-

lations implementing the program. If it would not have

been so enacted, allowing Section 43 to stand creates a

law that the legislature did not intend to enact.

III. UNDER TRADITIONAL SEVERABILITY DOC-

TRINE, THE LEGISLATIVE VETO PROVISION IS

INSEVERABLE FROM THE REMAINDER OF SEC-

TION 43

By adhering to its standard of severability, the court

of appeals did not give proper weight to several critical

facts demonstrating that the surviving provisions of

Section 43 would not operate as Congress intended. The

court actually acknowledged the validity of many of

petitioners’ assertions, but rejected them all because

they could not satisfy the court’s “exacting” severability

standard. 766 F.2d at 1565. See id. at 1561, 1563, 1564.

The court accepted petitioners’ assertion that the un-

usual legislative review provision in Section 43 “reflects,

as a whole, a unique combination of features.” Jd. at

1563. But the court dismissed the elaborate nature of the

review process as irrelevant because it did not “speak to

the issue at hand,” i.e., whether “Congress, or even the

committees involved, would have preferred no employee

protection plan to the adopted plan divorced of its leg-

islative veto provision.” Jd. at 1564. Petitioners did not

contend that by devising this unique review procedure

Congress demonstrated a preference for no employee pro-

tection at all over a program absent a legislative veto.”

13 There is substantial support in the legislative history, however,

for the proposition that Congress did not believe that the program

would be necessary, and that the provision was included as a

“contingency” to address a “theoretical possibility.” S. Rep. No.

631, 95th Cong., 2d Sess. 113-15 (1978). Thus, the veto provision

gave Congress, inter alia, a second chance to determine whether

there was even a need for the program as well as the precise

design of it.

21

Petitioners did contend, however, that in delegating

to DOL the power to establish a new type of regulatory

program that could impose a severe financial burden on

the government, that would intrude seriously into airline

hiring and the rights of other individuals desiring em-

ployment in the airline industry, and that was funda-

mentally inconsistent with deregulation, Congress intended

to ensure its ultimate control over the program’s design.

The court’s decision gives the Secretary the broad regu-

latory authority to design the EPP but takes away the

control Congress deemed critical as a condition of such

an open-ended grant.

The court also recognized that the Deregulation Act

grants or addresses at least twenty-five distinct delega-

tions of authority, but Section 43 is the only provision in

the entire Act to which a legislative veto applies, and it

is an integral part of the same subsection (f) which

grants the regulatory authority. See 766 F.2d at 1563.

Adhering to its novel severability test, the court dismissed

this point as irrelevant because it “still does not speak to

whether Congress would have preferred no employee pro-

tection plan at all... .” Td.

The court’s erroneous severability standard also colored

its view of the Conference Committee compromise on

Section 43. Whereas the House had proposed a tradi-

tional employee protection plan that was long established

in other regulated transportation industries (7.e., respon-

sibility for employee protection is vested in government

or in parties responsible for the dislocations), the Senate

version constituted a new, controversial and more broadly

reaching intrusion into the private labor market.

Conference Committee adopted the Senate version, which

included the veto, but made two important modifications.

The revised Section 43 provided less guidance to DOL on

eligibility for the rehire program, but simultaneously in-

creased congressional scrutiny.* H.R. Rep. No. 1779,

14The Conference Committee eliminated a “qualifying disloca-

tion” requirement as a prerequisite for protected employees seeking

22

95th Cong., 2d Sess. 195-06 (1978). The significance of

the compromise is not that it shows that Congress would

have declined to enact any protection program had the

agreement not been reached, but rather that Congress

would not have adopted the novel, unfamiliar Senate ver-

sion in the form it did, granting almost unlimited au-

thority to DOL to create the EPP, had its members not

retained ultimate control over the parameters of the pro-

gram. If the court’s decision is not reviewed, the em-

ployee protection program will be permitted to function

in a way neither House intended.

CONCLUSION

For all of the foregoing reasons, a writ of certiorari

should issue, and the judgment and opinion of the

United States Court of Appeals for the District of Colum-

bia Circuit should be reviewed by this Court.

Respectfully submitted,

WILLIAM T. COLEMAN, JR.

Counsel of Record

DONALD T. BLIss

JOHN H. BEISNER

JAMES P. NEHF

O’MELVENY & MYERS

1800 M Street, N.W.

Washington, D.C. 20036

(202) 457-5325

DATED: November 27, 1985.

the right of first hire, leaving unclear Congress’ intent as to the

circumstances under which employees adversely affected by the

Deregulation Act would be eligible for the mandatory hiring prefer-

ence. H.R. Rep. No. 1779, 95th Cong., 2d Sess. 105 (1978). The

Senate bill had provided simply for a sixty-day legislative review

period before both houses of Congress. Jd. But the Conference

expanded this review process by adding the committee submission

requirement and the six-month deadline which combined with the

one-house veto to guarantee that the members of Congress who had

charted the path of airline deregulation could actively guide devel-

opment of the EPP.