Appendix — Alaska Airlines, Inc. v. Brock

ae

\

2) Supreme Court, U.S,

85-9 20 FILED

NOV 27 1085

No. 85-

JOSEPH F. SPANIOL, JR.

1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

ALASKA AIRLINES, INC.., et ai..,

Petitioners,

V.

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

Respondents.

APPENDIX TO

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

TABLE OF CONTENTS

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

TE SN OE 30a

. Constitutional Provisions, Statutes and Regulations

TENE ce aR PE ne RN a Sn cuca ree 38a

. Petitioners’ Parent Companies, Subsidiaries (Ex-

cept Wholly Owned Subsidiaries) and Affiliates,

Pursuant to Supreme Court Rule 28.1 00... 63a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 84-5442, 84-5467, 84-5468 and 84-5470

ALASKA AIRLINES, INC., et al.,

Vv.

RAYMOND J. DONOVAN, individually and as

Secretary of Labor, et al.,

V.

BROTHERHOOD of RAILWAY and AIRLINE CLERKS, et al.,

Appellants.

ALASKA AIRLINES, INC., et al.,

Vv.

RAYMOND J. DONOVAN, individually and as

Secretary of Labor, et al.,

ASSOCIATION OF FLIGHT ATTENDANTS,

Appellant.

ALASKA AIRLINES, INC., et al.,

Vv.

RAYMOND J. DONOVAN, individually and as

Secretary of Labor, et al.,

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Appellant.

2a

ALASKA AIRLINES, INC., et al.

V.

RAYMOND J. DONOVAN, individually and as

Secretary of Labor, et al.,

Appellants,

AIR LINE PILOTS ASSOCIATION, et al.

Argued March 28, 1985

Decided July 16, 1985

Before TAMM, GINSBURG and STARR, Circuit

Judges.

Opinion for the Court filed by Circuit Judge STARR.

Statement concurring in the judgment filed by Circuit

Judge GINSBURG.

STARR, Circuit Judge.

This case raises a question left in the wake of /mmi-

gration & Naturalization Service v. Chadha, 462 U.S. 919,

103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), invalidating as

violative of separation of powers principles the device of

the legislative veto of administrative regulations. The

context is Congress’ pre-Chadha deregulation of the air-

line industry. The specific issue is whether an unconstitu-

tional legislative veto provision contained in section 43(f)

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

504, §$ 43(f), 92 Stat. 1705, 1750 (1978), is severable

from the remainder of the airline employee protection

provisions of that statute. We conclude that the veto pro-

vision should be severed; we therefore reverse the judg-

ment of the District Court, 594 F. Supp. 92, which held

the veto provision inseverable. Inasmuch as the District

3a

Court did not have occasion to address the other issues

raised by the airlines, we remand the case for further

consideration.

I

The Airline Deregulation Act of 1978 contains an em-

ployee protection program for the benefit of employees

displaced through the impact of deregulation on the shift-

ing fortunes of individual air carriers. See id. § 43 at 92

Stat. 1750, codified at 49 U.S.C. app. $ 1552 (1982). As

originally crafted, the program contained two prongs.

The first provided monetary support and assistance in re-

location to individuals who had lost their employment or

suffered a diminution in compensation as a result of a

qualifying industry dislocation. See 49 U.S.C. app.

§ 1552(a)-(c). While that provision is still on the books,

Congress has never funded its implementation; inasmuch

as that provision’s operation was expressly made subject

to Congress’ appropriation of funds for financial assist-

ance, see 49 U.S.C. app. § 1552(a), this portion of the

employee protection program is inoperative and, accord-

ingly, no implementing regulations have been promulgated

under it.

The employee protection program’s second prong trig-

gered the litigation now before us. That portion consists

of a “first hire” requirement. That is to say, a person

who had been employed for at least four years prior to

October 24, 1978 (the effective date of the Act) by an air

carrier holding a certificate under the pre-deregulation

regime and who was furloughed or terminated (other

than for cause) prior to the Act’s effective date had a

first right of hire by other pre-deregulation certificated

air carriers. See 49 U.S.C. app. § 1552(d), (h) (1). This

right of first hire was without regard to age but applied

only to airlines hiring within the individual’s occupational

specialty; moreover, airlines could lawfully recall their

own furloughed employees before hiring those displaced

from other carriers. See 49 U.S.C. app. § 1552(d).

4a

The Secretary of Labor was granted authority to issue,

amend and repeal rules and regulations necessary to ad-

minister the employee protection plan. See 49 U.S.C. app.

§ 1552(f) (1), (h) (3). However, that authority was lim-

ited by the following provisions:

The Secretary shall not issue any rule or regulation

as a final rule or regulation under this section until

30 legislative days after it has been submitted to the

Committee on Commerce, Science, and Transporta-

tion of the Senate and the Committee on Public

Works and Transportation of the House of Repre-

sentatives. Any rule or regulation issued by the Sec-

retary under this section as a final rule or regulation

shall be submitted to the Congress and shall become

effective 60 legislative days after the date of such

submission, unless during that 60-day period either

House adopts a resolution stating that that House

disapproves such rules or regulations, except that

such rules or regulations may become effective on the

date, during such 60-day period, that a resolution has

been adopted by both House stating that the Congress

approves of them.

49 U.S.C. app. § 1552(f) (3). Exceptionally, this section

combines the “report and wait” provision (found in the

first sentence of the quoted language) with a one-House

legislative veto’ (set forth in the second sentence).

1 Justice White’s dissent in Immigration & Naturalization Serv-

ice v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983),

summarizes the history of the implementation of the legislative

veto. See id. at 968-74, 103 S.Ct. at 2793-96 (White, J., dissenting).

He traces that history from its American genesis in the reorganiza-

tion provisions of Pub.L. No. 72-212, 47 Stat. 382, 413-15 (1932),

through its inclusion “in nearly 200 statutes .. . in every field of

governmental concern: reorganization, budgets, foreign affairs,

war powers, and regulation of trade, safety, energy, the environment

and the economy.” Jd. at 968, 103 S.Ct. at 2793. Earlier use of the

device, dating back to the Nineteenth Century, is found in English

5a

Pursuant to his statutory authority, the Secretary of

Labor published regulations for the administration of

both prongs of the protection plan in March 1979. See

44 Fed. Reg. 19,146 (1979). A revision of the proposed

regulations, covering only the first hire provisions, was

published in September 1982. See 47 Fed. Reg. 41,304

(1982). Final regulations were published on November

22, 1983, see 48 Fed. Reg. 52,854 (1983), were duly

transmitted to Congress, and were to become effective

after sixty legislative days.

In February 1984, however, before the regulations be-

came effective, Alaska Airlines, Inc. and various other

airlines filed a complaint in United States District Court

for the District of Columbia. They alleged that the first

hire provisions of the Act were invalid because of the in-

clusion of an unconstitutional legislative veto in section

43(f)(3). In addition, they challenged the regulations

themselves as violative of the Due Process Clause and,

on nonconstitutional grounds, as arbitrary and capricious,

an abuse of agency discretion and otherwise not in ac-

cordance with law. The Department of Labor conceded

below, see Alaska Airlines, Inc. v. Donovan, 594 F. Supp.

92, 94 (D.D.C. 1984), and does not contest here, that

the legislative veto provision is unconstitutional under

Chadha. The Government argued, however, that the in-

valid veto provision is severable from the remainder of

the Act and that the remainder of the employee protec-

tion plan, and the rules and regulations adopted there-

under, are lawful and valid.

Plaintiffs-appellees moved for summary judgment, and

the Department of Labor moved to dismiss or for an or-

der affirming the validity of the regulations. On May 17,

1984, the day the regulations were to become effective, the

administrative law. See Schwartz, The Legislative Veto and the

Constitution—A Reexamination, 46 GEO.WASH.L.REV. 351, 359

(1978).

6a

District Court granted the airlines’ motion, holding that

section 43 was invalid in its entirety due to the inclusion

of what the court deemed to be an inseverable legislative

veto provision. The court’s opinion issued the following

day. Neither the order nor the opinion addressed the

other issues raised in the airlines’ complaint.

II

Before reaching the principal issue presented on this

appeal, namely the severability of the legislative veto from

the remainder of section 43 of the Airline Deregulation

Act, several preliminary issues must be addressed.

A

The first question is whether we have juricdiction over

this appeal. The issue is raised only in a footnote in the

Alaska Airlines Brief, see Appellees’ Brief at 9 n.*, where

appellees question, in passing, whether jurisdiction in fact

lies in this court; because of the obvious importance of

that question, the subject merits our analysis at the out-

set. A basic jurisdictional provision of Title 28 is that

the Supreme Court, not the Courts of Appeals, is vested

with jurisdiction over appeals from District Court deci-

sions holding an Act of Congress unconstitutional in any

civil action in which the United States, or an agency,

official or employee thereof, is a party. 28 U.S.C. § 1252

(1982). In keeping with this provision, the several Courts

of Appeals enjoy jurisdiction over appeals from final de-

cisions of the district courts “except where a direct review

may be had in the Supreme Court.” 28 U.S.C. § 1291

(1982) (emphasis added). The airlines suggest that since

the District Court held the entire section unconstitutional,

exclusive review Of that judgment should lie in the Su-

preme Court.

Those two Title 28 provisions might be read to support

the airlines’ position. In fact, the appeal in this action

Ta

was originally filed in the Supreme Court, but due to a

recent Supreme Court decision was thereafter refiled in

this court. See Appellant Secretary of Labor’s Brief at

10 n. 5. To determine whether the shift in tribunals was

proper and jurisdiction actually lies here we examine that

recent Supreme Court disposition.

In Equal Employment Opportunity Commission v. All-

state Insurance Co., —— U.S. ——, 104 S.Ct. 3499, 82

L.id.2d 810 (1984), the Court, by order, held that it had

no jurisdiction in a legislative veto case. The obvious diffi-

culty in analyzing the Supreme Court’s decision in All-

state is that the dismissal for lack of jurisdiction was

without opinion. There was, however, a dissent by the

Chief Justice, joined by Justice O’Connor, which presents

at least two Justices’ view of the Court’s reasoning. The

district court in that case, 570 F. Supp. 1224 (S.D. Miss.

1983), had held the Reorganization Act of 1977, Pub. L.

No. 95-17, 91 Stat. 29 (1977), unconstitutional because

of the presence of a non-severable legislative veto provi-

sion. That statute contained the provision pursuant to

which the Equal Employment Opportunity Commission

had been authorized to enforce the Equal Pay Act, Pub.

L. No. 88-38, 77 Stat. 56 (1963). After ruling that the

Reorganization Act failed in its entirety, the court held

that the EEOC lacked authority to enforce the Equal Pay

Act and granted summary judgment in favor of Allstate.*

An appeal thereafter taken directly to the Supreme

Court was summarily dismissed for want of jurisdiction.

Appearing to find the Court’s approach overbroad, the

Chief Justice stated:

2 After the district court decision in EEOC v. Allstate, but before

the Supreme Court’s consideration, the Fifth Circuit held, in a

separate case, that the legislative veto in the Reorganization Act

was severable and that the EEOC did have authority to enforce

the Equal Pay Act. See Equal Employment Opportunity Commis-

sion v. Hernando Bank, Inc., 724 F.2d 1188 (5th Cir. 1984).

8a

Had the District Court simply determined, as a mat-

ter of statutory construction, that appellant cannot

exercise the authority to enforce the Equal Pa, Act

because Congress did not wish the Act to be operative

absent the veto provision, I would agree that dis-

missal would clearly be compelled under Heckler v.

Edwards |[—— U.S. ——, 104 S.Ct. 1532, 79 L.Ed.2d

878 (1984) ]. Under these circumstances, it would be

clear, as in Heckler, that appellant was not challeng-

ing the constitutional holding of the District Court

since it concedes the validity of the court’s holding on

the legislative veto provision. But this is not the

holding of the District Court. And the mere asser-

tion now by the Solicitor General, and implicitly by

the Court, that the holding was in reality one of stat-

utory construction cannot change the fact that the

District Court explicitly and unambiguously held the

entire Act unconstitutional.

Allstate, supra, 104 S.Ct. at 3502 (emphasis in original).

Using this explanation as guidance to the Court’s posi-

tion on the jurisdictional issue, it appears that the appeal

in the case at hand appropriately lies in this court. The

District Court here did not break any new ground with

respect to a constitutional issue. To the contrary, its de-

cision that the legislative veto provision was unconstitu-

tional was squarely rooted in Chadha, as evidenced by the

fact that neither side contests that portion of the District

Court’s decision. Thus, the constitutional decision is, in

truth, not a part of this appeal. What is at issue on

appeal, rather, is the severability vel non of the remainder

of the section in which the legislative veto appears. That

question, as we shall see, reduces to a matter of statutory

interpretation, see generally Stern, Separability and Sepa-

rability Clauses in the Supreme Court, 51 Harv. L. REV.

76, 115 (1937). As even the Allstate dissenters opined,

jurisdiction would not under those circumstances lie in

the Supreme Court but would instead be vested in this

9a

court. See also Heckler v. Edwards, supra, 104 S.Ct. at

1536 (“a party does not have a right to direct review in

the Supreme Court under 28 U.S.C. § 1252 unless the

holding of federal statutory unconstitutionality is in is-

sue”). Accordingly, we are persuaded that the present

appeal is properly before us.

B

The second preliminary issue is whether this dispute is

ripe for review, inasmuch as Congress has not attempted

to exercise the legislative-veto power purportedly con-

ferred by the Airline Deregulation Act. In a case suggest-

ing the possibility of a lack of ripeness, Clark v. Valeo,

559 F.2d 642 (D.C. Civ), aff'd sub nom. Clark v. Kim-

mitt, 431 U.S. 950,97 Ct. 2667, 53 L.Ed.2d 267 (1977),

this court in a pre-Chaha ruling stated that “[u]ntil Con-

gress exercises the one-house veto, it may be difficult to

present a case with sufficient concreteness as to standing

and ripeness to justify judicial resolution of the pervasive

constitutional issue which the one-house veto provision in-

volves.” Id. at 649. However, this court also stated, im-

portantly for our purposes, that “[a] contention that

there are no real considerations of ripeness here can only

rest on a view of the merits that a one-house veto is so

patently unconstitutional that nothing more is needed to

inform the judgment of the court.” /d. at 649 n. 8. This

court, at that time, was unwilling to deem the legisla-

tive veto device patently unconstitutional; however, in

Chadha’s wake, this sort of veto provision is manifestly

unconstitutional, and thus under Clark v. Valeo’s teach-

ing the issue before us may well be ripe for adjudication.

On the other hand, the proposition that the issue is not

ripe finds its strongest support in a decision from another

circuit, Muller Optical Co. v. Equal Employment Oppor-

tunity Commission, 743 F.2d 380 (6th Cir. 1984). In that

case, the legislative veto provision of the Reorganization

Act of 1977 was once again in issue. The Sixth Circuit

10a

concluded that “the existence of a one-House veto provi-

sion in a statute does not render the statute invalid but

only renders the act of Congress, if it attempts to exercise

its one-House veto[,] invalid... .” Jd. at 388. The Re-

organization Plan No. 1 of 1978, which transferred au-

thority to the EEOC to enforce the Age Discrimination

in Employment Act, see infra note 5, had long since been

reviewed by Congress, and Congress had chosen not to

exercise its legislative veto. The court stated:

To inquire at this point in time whether Congress

would have passed the Reorganizational [sic] Act

without the one-House veto provision and, thereby,

whether the substantive provisions of the Act are

effective absent the provision, makes no sense when

Congress has already declined to use the veto provi-

sion and thus has already approved the plan.

Id.

In Muller, the Reorganization Plan in question was

promulgated, and Congress elected not to veto it, prior to

Chadha. Congress thus tacitly approved the plan, thereby

strengthening the argument that the constitutionality vel

non of the unutilized veto provision should not have been

adjudicated. Here, however, the Department of Labor

promulgated its regulations after Chadha was handed

down. At that point, Congress did not, in truth, enjoy

the option of vetoing the rules; indeed, to have attempted

te do so, in light of Chadha, would have been an exercise

in futility. Hence, the Congressional approval found tac-

itly in Muller cannot, in reason, be read into the situation

at hand. In the post-Chadha era in which Congress knows

that it may not lawfully exercise the purported veto au-

thority, to hold that a court cannot reach the issue of the

constitutionality of such a device unless Congress has ex-

ercised the provision would be, in effect, to shield all

agency action from review as to whether Congress would

have provided the underlying authority without its veto

oversight. This we decline to do.

lla

C

The final preliminary question is whether Chadha

should be applied retroactively. The test for retroactivity

of a judicial decision is laid out in Northern Pipeline Con-

structon Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102

S.Ct. 2858, 73 L.Ed.2d 598 (1982), and Chevron Oil Co.

v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296

(1971). Northern Pipeline states that there are

three considerations . . . properly bearing upon the

issue of retroactivity. They are, first, whether the

holding in question “decid[{ed] an issue of first im-

pression whose resolution was not clearly fore-

shadowed” by earlier cases, . . . second, “whether

retrospective operation will further or retard [the]

operation” of the holding in question, . . . and third,

whether retroactive application “could produce sub-

stantial inequitable results” in individual cases... .

Northern Pipeline, supra, 458 U.S. at 88, 102 S.Ct. at

2880 (quoting Chevron, supra, 404 U.S. at 106-07, 92

S.Ct. at 355).

With regard to the first factor, the Association of

Flight Attendants argues before us that Chadha erected

a new principle of law that could not reasonably have

been anticipated. In response, the airlines point to fifty

years of political and scholarly debate and speculation as

to the constitutionality of such provisions; over the years

various commentators have questioned the constitutional-

ity of the legislative veto device,* while others have rushed

3 See, e.g., Ginnane, The Control of Federal Administration by

Congressional Resolutions and Committees, 66 HARV.L.REV. 569

(1953) ; Dixon, The Congressional Veto and Separation of Powers:

The Executives on a Leash, 56 N.C.L.REv. 423 (1978); Martin, The

Legislative Veto and the Responsible Exercise of Congressional

Power, 68 VA.L.REV. 253 (1982). For a more complete compilation,

see Chadha, supra, 462 U.S. at 976 n. 12, 103 S.Ct. at 2797 n. 12

(White, J., dissenting).

12a

to its defense.* Furthermore, this court in Consumer En-

ergy Council of America v. FERC, 673 F.2d 425 (D.C.

Cir. 1982), aff'd mem. sub nom. Process Gas Consumers

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

1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed.2d 1408,

77 L.Ed.2d 1413 (1983), held prior to Chadha that the

legislative veto provision of the Natural Gas Policy Act

of 1978, Pub. L. No. 95-621, 92 Stat. 3350 (1978), was

unconstitutional. In view of all this, at the very least,

some considerable doubt had been raised prior to Chadha

with respect to the constitutionality of legislative veto

provisions.

The second factor, the furtherance or retarding of the

decision’s operation, speaks more strongly in favor of

Chadha’s retroactive application. That decision, of course,

pertained to a bedrock issue of the structure of the Na-

tional Government, namely the separation of powers en-

shrined by the Framers in Philadelphia in the summer of

1787. The fundamental concern over fidelity to that prin-

ciple of governance of a free people would scarcely be fur-

thered by shielding from challenge a separation-of-powers

violation simply by virtue of the fact that the unconstitu-

tional provision was passed prior to Chadha. While it

may be argued that regulations promulgated and not

vetoed (or even promulgated but vetoed) prior to Chadha

should not be subjected to retroactive application, it seems

strained to argue that the provision itself should be pro-

tected from Chadha’s retroactive application. The veto

device works a potential violation of separation of powers

principles; that provision indisputably ripens into a very

real violation when regulations are purportedly vetoed.

* See, e.g., Newman & Keaton, Congress and the Faithful Execu-

tion of Laws—Should Legislators Supervise Administrators?, 41

CALIF.L.REV. 565 (1953); Cooper & Cooper, The Legislative Veto

and the Constitution, 30 GEO.WASH.L.REV. 467 (1962). For a more

complete compilation, see Chadha, supra, 462 U.S. at 976 n. 12, 103

S.Ct. at 2797 n. 12 (White, J., dissenting).

13a

An alternative problem arises in this post-Chadha day

and age in which Congress is plainly forbidden from ex-

ercising a veto. If we refuse to apply Chadha to the post-

Chadha adoption of regulations under a pre-Chadha stat-

ute that includes a legislative veto, the Executive branch

might thereby be permitted to exercise power that Con-

gress would not have delegated had it not retained some

power of review through the legislative veto device. In

short, while the second factor might shield from retro-

active application those regulations fully in place prior to

Chadha, that factor should not shield the legislative veto

provisions themselves from constitutional scrutiny.

The third factor, substantial inequitable results from

retroactive application, weighs heavily on neither side.

The Association of Flight Attendants argues that great

inequity would result from Chadha’s retroactive applica-

tion in that employees would no longer enjoy the protec-

tive mechanisms carefully crafted by a Congress which

recognized “an almost moral obligation” to protect airline

employees. See Association of Flight Attendants’ Brief at

41. However, whatever inequity the flight attendants may

discern arises not entirely from the retroactive applica-

tion of Chadha but, more precisely, from any judicial de-

cision not to sever the remainder of section 43. Their ar-

guments speaks to the Congressional intent important to

the severance decision; they do not speak to the retro-

activity vel non of Chadha.

There is, as yet, little case law on Chadha’s retroactive

application.® Three pre-Chadha cases in this circuit struck

5 The issue was raised in one case in the D.C. District Court, and

the court there held that under a case-by-case analysis Chadha

would apply retroactively to the Presidential Recordings and Ma-

terials Preservation Act, Pub.L. No. 93-526, 88 Stat. 1695 (1974).

See Allen v. Carmen, 578 F.Supp. 951, 966-68 (D.D.C. 1983). The

Temporary Emergency Court of Appeals has also considered the

question. In Exxon Corp. v. United States Department of Energy,

744 F.2d 98 (T.E.C.A.), cert. denied, US. , 105 S.Ct. 576,

83 L.Ed.2d 515 (1984), the court held that Chadha should not be

l4a

down legislative veto provisions as unconstitutional, see

Amercan Federation of Government Employees v. Pierce,

697 F.2d 303 (D.C. Cir. 1982) ; Consumers Union of the

United States, Inc. v. Federal Trade Commission, 691

F.2d 575 (D.C. Cir. 1982), aff'd mem. sub nom. Process

Gas Consumer Group v. Consumer Energy Council of

America, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402,

77 L.Ed.2d 1403, 77 L.Ed.2d 1413 (1983); Consumer

Energy Council of America v. FERC, supra, 673 F.2d

425. Inasmuch as all three decisions were pre-Chadha,

they are not of direct relevance to the issue of the retro-

activity of Chadha. Furthermore, while Pierce relies on

Consumer Energy Council and Consumers Union, the veto

clause found unconstitutional in Pierce was enacted after

this court’s decision in Consumer Energy Council, hence

the reliance on Consumer Energy Council was not a retro-

active application. On the other hand, the Supreme

Court’s summary affirmance of Consumers Union and

applied retroactively. But, the retroactive application under discus-

sion was as to obligations imposed by, and regulations adopted

pursuant to, the infirm statutes prior to Chadha. The court found

substantial inequitable results in voiding such obligations and regu-

lations. In our view, this analysis should not be extended to the

case at hand in which the regulations were adopted post-Chadha.

Other cases do not directly address the issue. For example, in

Equal Employment Opportunity Commission v. Hernando Bank,

Inc., 724 F.2d 1188 (5th Cir. 1984), the legislative veto provision

of the Reorganization Act of 1977, Pub.L. No. 95-17, 91 Stat. 29

(1977), was held unconstitutional, but the provision was ruled

severable; thus, the issue of retroactive application vel non lost

any importance. In Equal Employment Opportunity Commission v.

CBS, Inc., 743 F.2d 969 (2d Cir. 1984), the Second Circuit reached

the opposite conclusion on severability of this provision. The entire

Reorganization Act was held unconstitutional and the EEOC was

found to have no authority to enforce the Age Discrimination in

Employment Act (“ADEA”), Pub.L. No. 90-202, 81 Stat. 602

(1967). Having reached that conciusion, the court did discuss retro-

activity, but it was the retroactivity of its ruling regarding the

ADEA. The retroactivity of the Chadha decision must have been

assumed, however, inasmuch as the Second Circuit ultimately con-

cluded that the EEOC was lacking in authority.

15a

Consumer Energy Council was rendered after Chadha.

That summary disposition, while obviously enjoying less

precedential signficance than a case afforded plenary con-

sideration, see, e.g., Mandel v. Bradley, 432 U.S. 173, 176-

77 (1977); Fusari v. Steinberg, 419 U.S. 379, 391-92, 95

S.Ct. 533, 540-41, 42 L.Ed.2d 521 (1975) (Burger, C.J.,

concurring), might be viewed as assuming Chadha’s

retroactive application.

_ The airlines advance one additional argument in favor

of retroactive application. They note observations in both

Justice Powell’s concurrence in Chadha, supra, 462 U.S.

at 959, 103 S.Ct. at 2788 (‘The Court’s decision . . . ap-

parently will invalidate every use of the legislative veto.”’)

(Powell, J., concurring), and Justice White’s dissent, id.

at 967, 103 S.Ct. at 2792 (“Today the Court . . . sounds

the death knell for nearly 200 other statutory provisions

in which Congress has reserved a ‘legislative veto.’ ”’)

(White, J., dissenting), that the Court’s ruling would in-

validate all legislative veto provisions. The airlines em-

phasize that the opinion of the Court did not respond to

these observations, while it did respond to others offered

by the dissent; the airlines draw from this an indication

that the Court has indicated that Chadha should have ret-

roactive effect. This is a weak reed on which to rest.

Failure to respond to these comments is, at bottom, proba-

tive of nothing. Nonetheless, when all is said and done,

we agree, by virtue of the analysis previously set forth,

that Chadha should be given retroactive effect.

II

Having disposed of these preliminary inquiries, we turn

now to the question of the severability vel non of the re-

mainder of section 43 from the unconstitutional legislative

veto provision.® Since it is, of course, a veto provision

6 For an excellent, early treatment of the Supreme Court’s de-

velopment of severability analysis, see Robert Stern’s article of

almost a half century ago, Separability and Separability Clauses in

the Supreme Court, 51 HARV.L.REvV. 76 (1937).

l6a

whose severability is in question, the severability analysis

set forth in Chadha itself is particularly instructive for

us. In Chadha, the Court stated that “the invalid por-

tions of a statute are to be severed ‘ “[u]nless 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, supra, 462 U.S. at 931-

32, 103 S.Ct. at 2774 (quoting Buckley v. Valeo, 424

U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976)

(quoting Champlin Refining Co. v. Corporation Comm’n,

286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062

(1952)). “A provision is further presumed severable if

what remains after severance ‘is fully operable as a

law.’”’ Chadha, supra, 462 U.S. at 934, 103 S.Ct. at 2775

(quoting Champlin, supra, 286 U.S. at 234, 52 S.Ct. at

564). While the immigration statute at issue in Chadha

contained a severability clause, thus distinguishing it

from the Airline Deregulation Act before us,’ the analyti-

TIt is not clear what weight is to be given to the absence of a

severability clause.

The presence of a severability clause, which expressly sets

forth congressional intent that a statute stand in the event

one of its provisions is struck down, makes it extremely diffi-

cult for a party to demonstrate inseverability. When there is

no such clause, however, as in this case, the test is less certain.

Consumer Energy Council of America v. FERC, supra, 673 F.2d at

441 (footnote omitted).

Here, even less weight is merited than might ordinarily be

attributed to such an absence. Several of the appellants argue that

section 43 of the Airline Deregulation Act amended the Federal

Aviation Act, Pub.L. No. 85-726, 72 Stat. 731 (1958), a statute

already containing a severability clause, see 49 U.S.C. app. § 1301

note (1982). See Brief of Appellants Brotherhood of Railway and

Airline Clerks, Flight Engineers’ Internationa! Association, Inter-

national Association of Machinists and Aerospace Workers, and

Transport Workers Union of America at 12-13. Appellees retort

that while section 43 of the AD... is codified along with the Federal

Aviation Act, the “[s]ection was enacted as part of the Airline

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

17a

cal framework enunciated by Chadha applies to the sever-

ability issue which we are called upon to resolve.

Chadha presumes severability of the offensive provi-

sion if what remains after severance is fully operable as

law. To this end, the burden is placed squarely on the

party arguing against severability to demonstrate that

Congress would not have enacted the provision without

the severed portion.* This presumption articulated by

Chadha was echoed in a later Supreme Court severability

case: “Whether an unconstitutional provision is severa-

ble from the remainder of the statute in which it appears

Act of 1958 which comprises this chapter,” 49 U.S.C. app. § 1552

note (1982). They contend that the severability clause thus does

not encompass section 43. See Appellees’ Brief at 16 n.*.

The Airline Deregulation Act is, by its own terms, an act to

amend the Federal Aviation Act. See Pub.L. No. 95-504, 92 Stat.

1705, 1705 (1978). Many provisions of the ADA do, in fact,

specifically amend provisions of the Federal Aviation Act, while

section 43 does not. It is, instead, simply a provision added to the

U.S. Code. Whether the severability clause of the Federal Aviation

Act carries over to section 43 is thus unclear. We do not resolve

that question, but note only that the point may not have been ciear

to Congress that it was not so included; we will thus not read any

legislative intent into the absence of an additional severability clause

specifically encompassing section 43.

8 This court has held the presumpytion to be unimportant in a

pre-Chadha legislative veto severability case. See Consumer Energy

Council of America v. FERC, supra, 673 F.2d at 442 (“We think

the question where the presumption lies is mostly irrelevant, and

serves only to obscure the crucial inquiry whether Congress would

have enacted other portions of the statute in the absence of the

invalidated provision. ... We do not view the imposition of any

unspecified burden of persuasion on either side as beneficial to the

inquiry.”). Since the Consumer Energy court found the provision

severable, its holding is not at odds with later Supreme Court

opinions. Furthermore, the court was focusing on what presumption

should be derived from the absence of a severability clause. The

conclusion that no presumption was to be drawn from that par-

ticular fact may not have been applicable to the generai presumption

in favor of severability.

18a

is largely a question of legislative intent, but the pre-

sumption is in favor of severability.” Regan v. Time,

Inc., U.S. ——, 104 S.Ct. 3262, 3269, 82 L.Ed.2d

487 (1984). The Court has thus clearly laid down a pre-

sumption in favor of severability if what remains is op-

erative as law; in a word, severance lies unless it is

“evident” that what remains would not have been en-

acted.

Our charge is to save as much of the statute as we

ean, consistent of course with the underlying legislative

intent. Only if we conclude that Congress would not have

included a provision absent the constitutionally fiawed

portion is that provision to fall. The issue cannot be

whether Congress preferred the statute with the uncon-

stitutional provision over the same statute without that

provision. Manifestly, Congress’ preference is abundantly

clear from its inclusion of the unconstitutional provision.

Nor is the question whether Congress would have passed

some alternative version of the statute if it knew that it

could not lawfully have included the offending provision.

That is, “the question is not whether Congress would

have enacted th[is] exact statute[] had it known at the

time of enactment that the legislative veto provisions

were invalid, but rather, whether Congress would have

preferred th[is] statute[], after severance of the legis-

lative veto provision[], to no statute[] at all.” Gulf Oil

Corp. v. Dyke, 734 F.2d 797, 804 (T.E.C.A.) (emphasis

in original), cert. denied, —— U.S. ——, 105 S.Ct. 173,

83 L.Ed.2d 108 (1984).

Section 43 of the ADA is an extensive and elaborate

provision, yet only one part of one subsection, namely

section 43(f) (3), is unconstitutional under Chadha. That

*“The cardinal principle of statutory construction is to save and

not to destroy.’”’ Tilton v. Richardson, 403 U.S. 672, 684, 91 S.Ct.

2091, 2098, 29 L.Ed.2d 790 (1971) (plurality opinion) (quoting

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615,

81 L.Ed. 893 (1937) ).

19a

section, codified at 49 U.S.C. app. § 1552(f) (3), contains

two provisions, as we have seen. The first, the so-called

“report and wait” provision, is left unaffected in Chad-

ha’s wake; the second is, of course, the legislative veto

provision constitutionally eviscerated by Chadha. If the

veto provision were severed, the remainder of the section

(ineluding the first sentence of the subsection) would be

fully operable as law. The employee protection program

would still be spelled out in great detail, and the Secre-

tary of Labor would still retain authority to promulgate

the necessary rules and regulations. The sole difference

would be that the Secretary would be required only to

submit the rules and regulations to the appropriate Con-

gressional committees on a “report and wait” basis

rather than expose those regulations to the gauntlet of

possible invalidation by way of an exercise of the pur-

ported veto authority.

To overcome the presumption of severability with re-

spect to this provision, the airlines must show, as we

have seen, that it is evident that Congress would not

have passed the section had Congress known that the

veto provision would disappear on account of its uncon-

stitutionality. Or, as the Temporary Emergency Court

of Appeais would put it, the challengers must show that

it is evident that Congress would have preferred no air-

line employee protection provision at all to the existing

provision sans the veto provision. Not only is evidence

for that position lacking, what evidence there is indicates

that Congress had a strong, humanitarian desire to pro-

vide for airline employee protection; in contrast to this

clearly expressed intent to erect protective safeguards

for displaced workers, Congress expressed relatively little

concern about the veto provision. That is to say, the evi-

dence, in our view, positively indicates that Congress

would have preferred the employee protection plan with

the veto provision severed out to a deregulatory statute

stripped of any employee protection plan. It is to that

evidence that we now turn.

20a

The employee protection provisions contained in the

Airline Deregulation Act had their genesis in the Senate

bill. The Senate Report is thus particularly instructive

as to the importance Congress attributed to that pro-

gram. Noting the concern expressed by airline employ-

ees over the security of their jobs once deregulation was

effected, the Senate Report stated:

The Committee felt that this concern [of airline em-

ployees] should not be ignored and that careful con-

sideration of the question of employee protection

programs was warranted. The Committee concluded

that the kind of employee dislocations that might

occur as a result of the new regulatory structure

should be dealt with by a statutory employee protec-

tion program, as has been done in certain cases in

the past. ... The Committee believes that the Con-

gress . . . must insure that the benefits to the pub-

lic which result from its decision to alter substan-

tially the regulation of air transportation are not

paid for by a minority—the airline employees and

their families who have relied on the present sys-

tem.

S. Rep. No. 631, 95th Cong., 2d Sess. 113-14 (1978). To

that end, the Senate bill, S. 2493, included an employee

protection program very much like the regime that was

ultimately adopted. See Conference Report, H.R. Rep.

No. 1779, 95th Cong., 2d Sess. 105 (1978), U.S. Code

Cong. & Admin. News 1978, pp. 3737, 3813 (observing

that the Conference substitute was “basically the same

as the Senate bill” with certain stated exceptions, includ-

ing some reworking of the subsection containing the veto

provision).

The House bill, H.R. 12611, also contained an em-

ployee protection program. As explained by the House

Report:

The bill stipulate[d] that no authority granted by

thle] act shall be exercised by any carrier unless

2la

the Secretary of Labor has certified to the CAB that

interests of employees have been adequately pro-

tected by fair and equitable arrangements, with

benefits no less than those established pursuant to

section 5(2) (f) of the Interstate Commerce Act and

section 405 of the Rail Passenger Service Act.

H.R. Rep. No. 1211, 95th Cong., 2d Sess. 26 (1978),

U.S. Code Cong. & Admin. News 1978, pp. 3737, 3762.

That this provision was viewed both as an important

feature of the bill and as being stronger than the Senate

plan is evidenced in the various comments disparaging

the perceived reduction in protection resulting from the

Conference substitute.’®

The airlines argue, however, that “Congress was un-

certain about the need for additional labor protection

beyond that already available through the CAB.” Ap-

pellees’ Brief at 41. This is quite true. Indeed, state-

ments in the legislative history reasonably can be read

as evidencing a sense that employee protection was not

in fact vital to the crafting of a comprehensive deregu-

latory regime. Those statements stemmed not from leg-

islative oversight or, worse yet, callousness to the poten-

tial plight of displaced workers, but reflected, rather, the

10 See 124 Cong.Rec. 38,522 (1978) (statement of Rep. Anderson)

(“The House provisions on employee protection . . . were stronger

than those in the conference bill.) ; 124 Cong.Rec. 38,523 (1978)

(statement of Rep. Harsha) (“I am not totally satisfied with the

conference agreement on the provision for employee protection. . . .

[Blenefits are not to be paid . . . until there is at least 7!» percent

employee reduction in the airline. It makes no sense to me to defer

these benefits until this percentage trigger is reached. ... However,

in the spirit of compromise we managed to reduce by one-half the

percentage trigger contained in the Senate bill.”’); 124 Cong.Rec.

38,524-25 (1978) (statement of Rep. Mineta) (“I am... compelled

to rise to express my grave concern about the employee protection

program included in [the ADA].... By comparison with the House-

passed provision, the conference agreement—which was based on

the Senate language—is not much protection at all.’’).

22a

sincerely held belief in various legislative quarters that

loss of employment in a deregulated industry was un-

likely.’' While that sentiment is certainly present in the

debate, as the airlines correctly and understandably em-

phasize, the sentiment does not, upon analysis, truly

speak to the precise issue at hand. For, inherent in no-

tion of increased competition in the industry is the real-

ity that some carriers will likely lose business, while

other carriers will gain. Thus, in Congress’ view at the

time, while total employment within the industry, once

deregulated, might well remain stable or grow, individual

employees might nonetheless lose their jobs due to de-

regulation; and, on the other hand, jobs with other car-

riers would likely become available. The preferred hir-

ing status provisions fashioned by Congress would thus

move those employees who lost their jobs into the newly

opened or created positions.

In our view, legislative comments with respect to the

overall employment picture within the industry speak

more to the provision for payment of benefits from fed-

eral coffers than to the first hire provisions. Congress

deemed it unlikely that the former provision would, in

fact, come inte play; that sense of the National Legisla-

ture is eloquently evidenced by the fact that Congress to

11 See S.ReEP. No. 631, 95th Cong., 2d Sess. 119 (1978) (“it is

highly unlikely that such payments [by the Government to displace

employees} will ever be necessary’) ; 124 Cong.Rec. 37,417 (1978)

(statement of Sen. Pearson) (“Some say that the bill may have

a harmful effect on labor while others argue to the contrary. I

believe that this legislation will be good for labor, management, and

the investor.”) ; 124 Cong.Rec. 37,419 (1978) (statement of Sen.

Kennedy) (“the indicators are all positive, and employment will

continue to increase as the carriers respond to the changes and new

opportunities deregulation has brought”). But see S.REeP. No. 631,

95th Cong., 2d Sess. 221 (1978) (Minority view of Sen. Inouye)

(“That supporters of the legislation recognize the very real possi-

bility of these consequences [loss of jobs for airline personnel and

support workers] is ... evidenced by adoption in Committee of an

‘employee protection’ amendment.”’).

23a

this dav has not funded that program. These comments

thus do not speak, as the airlines would read them, to the

“first hire” provisions. Indeed, the “first hire’ provi-

sions could, in theory, play a constructive fiscal role in

keeping potentially costly federal relief provisions from

being triggered in the first instance. These comments,

then, do nothing to counter the evidence that Congress

placed great importance on the existence of the employee

protection plan as an integral part of a comprehensive

deregulatory regime.

In stark contrast to the numerous comments indicat-

ing the importance of the employee protection plan, the

only discussion cited by the parties with respect to the

ve‘) provision is a solitary comment by then-Representa-

tive Elliott Levitas of Georgia expressing approval of the

presence of a legislative veto in the provision.’* Not only

is this sole source a thin reed for eviscerating an entire

remedial system fashioned out of humane Congressional

concern for adversely affected airline employees but, what

is more, Rep. Levitas was a vigorous advocate generally

for the proposition, eviscerated by Chadha, that Con-

gress must retain control over administrative agencies

via the legislative veto device.'"* Now to be sure, Rep.

12 I am happy to say that this piece of legislation contains a

one-House veto over the regulations which may be issued by the

Secretary of Labor on the labor protection provisions, so that

the Congress and not an unelected bureaucrat will have the

final word on regulations that will have the effect of law.

124 Cong.Rec. 38,524 (1978) (statement of Rep. Levitas). By his

own description, Rep. Levitas was “making [an] observation,” id.,

not setting forth what he was maintaining to be an indispensable

legislative ingredient of an acceptable bill.

13 In a post-Chadha article, then-Representative Levitas and his

co-author, former counsel to the House of Representatives, Stanley

M. Brand, stated:

As Congress increasingly delegated authority, the bureau-

cratic agencies . . . swelled in number and in the size of their

24a

Levitas was, as the airlines rightly emphasize, a member

of the Conference Committee for the Airline Deregula-

tion Act and of the House Committee on Public Works

and Transportation, the committee to which the House

bill was referred. Thus, his statement was not one

merely of a zealous advocate championing his well-known

position in favor of lavishly sprinkling regulatory (or

deregulatory) legislation with legislative veto devices.

However, there is not a shred of evidence that Rep. Levi-

tas’ statement represented the view of Congress as a

whole (or even his full Committee), nor is there any

indication that Congressman Levitas himself attached

especial significance to this particular veto provision, as

opposed to his keen interest generally in seeing the in-

corporation of such devices in legislation enacted by the

Congress.

Failing to find any direct statement evidencing a Con-

gressional intent of inseverability, appellees advance

various items of circumstantial evidence of what they

personnel. These agencies were given the authority to write

rules and regulations that govern our society with the same

force and effect as the iaws written by the elected Congress.

In order to maintain its control over this authority, Congress

often—though not often enough in our opinion and in the

opinion of others—required that these rules and regulations be

subjected to congressional review, and if the Congress deemed

appropriate, a le islative veto.

* * * *

Under our system of government, which is based on democratic

principles, those who are accountable to the people must have

the final say over the rules and regulations that have the force

and effect of law. If Congress finds that a rule or regulation

is arbitrary, oppressive, or contrary to the intent of the law,

then the Congress ought to have the right to stop that rule

from going into effect. The legislative veto provided a means

for doing that.

Levitas & Brand, The Post Legislative Veto Response: A Call to

Congressional Arms, 12 HOFSTRA L.REV. 593, 611-12 (1984) (em-

phasis in original).

25a

perceive to be such an intent. Appellees first point to the

fact that only section 43 of the Act is subject to the veto

provision. That fact, however, is hardly surprising. The

Act was, of course, a deregulatory statute, as its very

name suggests, whereas section 43 was, for lack of a

better term, a regulatory provision. It is, as a matter of

common sense, the regulatory provision which would be

the most likely candidate for inclusion of a legislative

veto device. That fact, however, still does not speak to

whether Congress would have preferred no employee

protection plan at all, as opposed to a plan containing a

“report and wait” mechanism but lacking a veto provi-

sion.

The airlines also argue that the legislative veto provi-

sion in section 43 is “distinctive among the almost 200

legislative veto provisions which Congress has included

in federal statutes.” Appellees’ Brief at 22. Admittedly,

the provision reflects, as a whole, a unique combination

of features. For one thing, as we have seen, a “report

and wait” requirement exists alongside the veto, see 49

U.S.C. app. § 1552(f) (3); in addition, a requirement is

imposed upon the Secretary of Labor to promulgate rules

and regulations necessary to carry out the section within

six months after October 24, 1978, see 49 U.S.C. app.

§ 1552(f) (2). It is not clear to us that anything of de-

cisional import is to be drawn from the inclusion of these

features.

The “report and wait” requirement simply directs the

submission of ruics and regulations, prior to issuance as

final rules, to particular oversight committees of Con-

gress. This mechanism may reasonably be viewed as the

assertion of an interest by committees not normally

charged with the review of labor regulations but directly

concerned with the airline industry over labor regula-

tions affecting deregulation of that industry. This un-

derstandable interest does not indicate that the veto is

inseverable, particularly since the “report and wait”

clause remains inviolate notwithstanding Chadha.

26a

Neither is it clear what conclusion is to be drawn from

the six-month requirement imposed on the Secretary.

The airlines suggest that this subsection was designed to

insure that the regulations would be reviewed by essen-

tially the same members of Congress who had shaped the

Airline Deregulation Act. While an election would have

intervened between the passage of the Act and the re-

quired time of submission, the historical experience of

reelections of incumbents might presumably lend some

credence to this interpretation. Nonetheless, like election

predictions, this approach is all purely speculative. The

provision could just as readily be seen in an indication of

the high importance Congress attached to the employee

protection plan, which Congress therefore mandated be

implemented as quickly as possible. Furthermore, even

assuming arguendo appellees’ point, that view fails, at

bottom, to speak to the issue at hand. From it, we can-

not conclude that Congress, or even the committees in-

volved, would have preferred no employee protection plan

to the adopted plan divorced of its legislative veto provi-

sion.

Appellees also seek support in the treatment of the

veto provision, and the protection plan as a whole, in the

deliberations of the Conference Committee. They argue

that

the House accepted the Senate’s novel concept of an

[employee protection plan} that it had not thereto-

fore embraced, but only with a significantly strength-

ened legislative review provision. The terms of this

compromise constitute strong evidence of nonsevera-

bility because, as in [American Federation of Gov-

ernment Employees v. Pierce, supra], one house ac-

cepted the overall thrust of the other house’s con-

flicting legislation, but only with the veto-related re-

strictions incorporated.

Appellees’ Brief at 33 (footnote omitted). The airlines

thus argue that the decision here should be influenced by

our decision in Pierce, a case in which a veto provision

27a

was held inseverable. However, Pierce is readily distin-

guishable from the case at hand. Pierce concerned a

provision of an appropriations act for the Department of

Housing and Urban Development, Pub. L. No. 97-272, 96

Stat. 1160, 1164 (1982), which provided that funds could

not be used for any reorganization by HUD, prior to

January 1, 1983, without prior approval of the two

Appropriations Committees. The district court had as-

sumed the invalidity of the approval clause and severed

it from the remainder of the provision. This court re-

versed, finding intent of nonseverability. However, as we

shall now see, the Conference Committee compromise pro-

viding the evidence of inseverability in Pierce differed

totally from the compromise reached in conference with

respect to the Airline Deregulation Act.

In Pierce, the House had “never put forward a provi-

sion without a committee approval clause tied to it.”

Pierce, supra, 697 F.2d at 307. On the other hand, “the

Senate initially opposed any restraint on the Department

[and] the Senate Committee[] clearly expressed

reservation about the House version of the bill.” Jd. The

Conference Committee compromise gave control to the

Appropriations Committees, but only for a limited dura-

tion. Neither House, it was abundantly clear in Pierce,

would have accepted a complete ban on reorganizing

HUD—yet that is precisely the result severance would

have brought about.

The Conference Committee compromise reached here

bears no resemblance at all to the situation in Pierce.

As to the airline deregula ‘on bill, ‘xe Conference

adopted, for the most part, the Senate bill’s employee

protection plan. That plan containec’ a veto clause, to

which the Conference Committee added the “report and

wait” provision. Even if the “report and wait” provi-

sion may be viewed as designed to strengthen the legis-

lative veto provision, we have found no evidence that the

28a

Hceuse’s agreement to the Senate version of the protec-

tion plan was given in exchange for beefing up the veto

device. In fact, the House’s: protection plan was viewed,

at least by several Representatives, as being much

stronger than the Senate’s plan. See supra note 10. It

seems to us unlikely that a program offering less pro-

tection would have occasioned a call for even greater

legislative control over the bureaucracy. Nor have we

found any indication that the Senate’s agreement to the

minor modifications in its version of the plan was prem-

ised on a “strengthening” of the veto provision. In

short, we conclude that Pierce is wholly inapposite to

the case at hand.

Ill

We emerge from our trek through the legislative his-

tory of the Airline Deregulation Act far short of the

destination that must be reached for the airlines to

prevail. We fail to find satisfied here the exacting in-

severability standard that it be “evident” that Congress

would have preferred no employee protection program

over the program passed by Congress shorn of its veto

provision. Ample evidence persuades us that the em-

ployee protection program, whatever its merit, was

deemed by Congress to be an important aspect of the Act.

In contrast, there is not a shred of evidence that the

veto provision was deemed to be a vital feature of the

protection plan.

In sum, we hold the legislative veto provision here to

be severable from the remainder of the employee protec-

tion provisions; the remainder of section 43 therefore

remains viable. However, since the District Court did

not have occasion to rule on the other grounds advanced

by the airlines in their challenge. to the rules adopted by

the Secretary, the case is remanded to that court for con-

sideration and adjudication of those issues.

Reversed and remanded.

29a

GINSBURG, Circuit Judge, concurring in the judg-

ment.

The court’s intricate discussion of preliminary issues

seems to me distracting. As I view this case, only one

genuine issue appears: would Congress have preferred

excision of the veto provision to demolition of the airline

employee protective prescriptions. Before the district

court, the Department conceded the unconstitutionality

of the veto, and does not contest that matter here. There-

fore, we face no appeal from decision of a constitutional

question; instead, a ripe statutory interpretation contro-

versy——-a construction of legislation dispute secureiy

within our appellate jurisdiction—is before us. Fur-

thermore, as the court recognizes, at 1558-1559 & n. 5,

a ruling that the labor protective prescriptions are sev-

erable strips discourse on Chadha’s “retroactive applica-

tion” of “any importance.”

On the severability question, I am in full agreement

with the court’s judgment, which undertakes a moderate

salvage operation. Deletion of the veto preserves section

43 and thereby gives effect to the dominant intent of

Congress. A declaration of inseverability, tearing down

the section in its entirety, would be far more destructive

of the legislature’s will. Cf. Buckley v. Valeo, 424 US.

1, 108-09, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976)

(per curiam).

30a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

Civ. A. No. 84-0485

ALASKA AIRLINES, INC., et al.,

Plaintiffs,

V.

RAYMOND J. DONOVAN, et al.,

Defendants;

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL; ASSOCI-

ATION OF FLIGHT ATTENDANTS; and BROTHERHOOD OF

RAILWAY and AIRLINE CLERKS, ETC.,

Intervening Defendants.

May 18, 1984

MEMORANDUM

GESELL, strict Judge.

This case challenges the validity of § 43 of the Airline

Deregulation Act (ADA), Pub.L. No. 95-504, 92 Stat.

1705 (1978), as well as the validity of regulation imple-

menting $43. The federal government undertook exten-

sive contro! over commercial airline operations beginning

in the 1930’s. The Civil Aeronautics Act of 1938 and

its successor, the Federal Aviation Act of 1958, 49 U.S.C.

$ 1301 et seqg., granted to the Civil Aeronautics Board

(CAB) broad powers to regulate nearly every aspect of

3la

the industry. This structure was dramatically altered in

1978, however, with the passage of the Airline Deregu-

lation Act. In the sweeping provisions of this Act the

CAB was directed to take steps to gradually lessen and

finally abolish nearly all economic regulation of the air-

line industry; indeed, the Act provided for the CAB

itself to go out of existence by 1985.’

In anticipation of the upheaval and possible economic

hardship which might result from deregulation, Congress

enacted as § 43 of the Act an “Employee Protection Pro-

gram” (EPP). This provision had two closely linked

components: an “assistance payments” program by which

the Secretary of Labor, “subject to such amounts as are

provided in appropriations Acts,’ would make monthly

assistance payments to certain “protected” airline em-

ployees laid off as a result of deregulation, and a “first

hire” program by which carriers certificated by the CAB

as of a particular date would be required to his “pro-

tected” employees laid off by other carriers before hiring

other individuals not previously furloughed by the hiring

airline itself. Many aspects of these programs were left

unresolved by the terms of § 43.

The Secretary of Labor was directed by § 43(f) to

issue the regulations necessary to carry out the Employee

Protection Program within six months, subject to legisla-

tive veto before they became effective. Despite the six-

month deadline, fina] regulations were not proposed for

the “first hire” program until 1983. Airline Employee

Protection Program, 48 Fed.Reg. 52,854 (Nov. 22, 1983).

These regulations are now scheduled to become effective

immediately. The Secretary has yet to issue regulations

covering the assistance payments program, which Con-

gress has never funded.

1 ADA § 40. Certain of the CAB’s functions are to be transferred

to other agencies. Safety regulation, which is controlled by the

Federal Aviation Administration, remains unaffected by the ADA.

32a

Plaintiffs, fifteen airlines subject to these new regula-

tions, challenge the validity of both the regulations and

of § 43 itself. Several airline employee unions have inter-

vened as defendants or filed briefs amici curiae. After

full briefing and oral argument, cross-motions to dismiss

or for summary judgment are now before the Court.

Because the Court concludes that § 43 is unconstitutional

in its entirety due to its special provision for a legisla-

tive veto, summary judgment must be granted for pla'n-

tiffs.’

Section 43(f) states:

(f) Rules and Regulations—(1) The Secretary

may issue, amend, and repeal such rules and regula-

tions as may be necessary for the administration of

this section.

(2) The rule containing the guidelines which is

required to be promulgated pursuant to subsection

(b) of this section and any other rules or regula-

tions which the Secretary deems necessary to carry

out this section shall be promulgated within six

months after the date of enactment of this section.

(3) The Secretary shall not issue any rule or

regulation as a final rule or regulation under this

section until 30 legislative days after it has been

submitted to the Committee on Commerce, Science,

and Transportation of the Senate and the Commit-

tee on Public Works and Transportation of the

House of Representatives. Any rule or regulation

issued by the Secretary under this section as a final

rule or regulation shall be submitted to the Congress

and shall become effective 60 legislative days after

the date of such submission; unless during that 60-

day period either House adopts a resolution stating

that that House disapproves such rules or regula-

? Plaintiffs’ other legal contentions need not be reached.

33a

tions, except that such rules or regulations may be-

come effective on the date, during such 60-day period,

that a resolution has been adopted by both Houses

stating that the Congress approves of them.

(4) For purposes of this subsection, the term

“legislative day’ means a calendar day on which

both Houses of Congress are in session.

As the government concedes, the legislative veto pro-

vision found in § 43(f) (3) is unconstitutional under the

Supreme Court’s holding in INS ». Chadha, 462 US.

919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). The issue

therefore is whether this defective portion of § 43 ean

be “severed” from the rest of that section and the re-

mainder enforced as valid law, or whether the legislative

veto provision is so fundamentally a part of that provi-

sion that it unconstitutionally infects the entire section.

The proper analysis to be followed in determining the

issue of severability is well established. “Unless it is

evident that the Legislature would not have enacted those

provisions which are within its power, independent of

that which is not, the invalid part may be dropped if

what is left is fully operative law.” Buckley v. Valeo,

424 US. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659

(1976) (per curiam), quoting Champlin Refining Co. v.

Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559,

564, 76 L.Ed. 1062 (1932). See also Chadha, 103 S.Ct.

at 2774. “|The crucial inquiry [is] whether Congress

would have enacted other portions of the statute in the

absence of the invalidated provision.” American Federa-

tion of Government Employees v. Pierce, 697 F.2d 303, 307

(D.C.Cir.1982), quoting Consumer Energy Council of

America v. FERC, 673 F.2d 425. 442 (D.C.Cir.1982),

affd mem., —— U.S. —~—, 103 S.Ct. 3556, 77 L.Ed.

1402 (1983) .*

%The question is not, of course, whether Congress would have

enacted some type of employee protection plan in the absence of a

34a

Several aspects of § 43 lead the Court te conclude that

Congress considered the legislative veto provision to be

integral to the EPP and that Congress would not have

enacted § 43 in its present form without such a provi-

sion. First, and most significant, § 43 is the only section

in the entire Airline Deregulation Act where a legisla-

tive veto provision appears. Unlike with many other

statutes, the Court is faced here not with a legislative

veto provision which applies to an entire statute, but

with a veto provision applicable to one, and only one,

particular section of a long and comprehensive piece of

legislation. It is apparent from the face of the statute,

therefore, that Congress enacted § 43 with the under-

standing firmly in mind that regulations issued by the

Secretary would be subject to legislative veto.

The importance to Congress of the legislative provi-

sion of § 43 is reinforced by the language of that sec-

tion. Subsections 43(f) (3) and (4) provide very explicit

procedures under which proposed regulations are sub-

ject to congressional review before they can become effec-

tive. Final regulations must be submitted for review

to specific congressional committees 30 days before they

are issued, and once issued do not become effective until

both Houses of Congress have adopted resolutions ap-

proving the regulations or 60 “legisiative’ days have

passed without either House adopting a resolution of

disapproval. These elaborate procedures are, in fact,

apparently unique among the nearly 200 statutory legis-

lative veto provisions enacted by Congress in the extent

legislative veto provision; rather, the issue is whether Congress

would have enacted the same statute. If not, the Court cannot en-

force the remainder of the statute merely because it might be an

approximation of what Congress would have enacted. The task of

determining the most preferable alternative to an unconstitutional

statute belongs not to the courts, but to Congress itself.

35a

to which they ensure congressional control over the

regulatory process.‘

The language of § 43’s substantive provisions and the

circumstances in which the ADA was enacted also sup-

port the view that Congress intended the veto provision

to be integral to § 43. Both the assistance payment and

first hire provisions provide the Secretary with only gen-

eral guidance in determining how those programs should

be structured and operated. Moreover, as the congres-

sional debates make clear the effects of airline deregu-

lation were highly uncertain. Congress obviously thus

could not foresee the precise nature or cost of the EPP

or the problems which might arise under it. Such cir-

cumstances are consistent with and reinforce indications

in the language of the veto provision itself that Con-

gress’ grant of such broad authority to the Secretary

was intended to be contingent on being subject to a

legislative veto.

The government points out that there is relatively

little discussion of the veto provision in the legislative

history of the Act, at least with respect to the first hire

program. The mere lack of extensive discussion of the

veto provision, however, does not support the conclusion

that Congress considered that provision insignificant, and

what legislative history there is in fact supports the

view that Congress considered the veto provision to be

an important part of § 43. While the reasons for doing

so are apparently not fully recorded, the Conference

Committee report indicates that the legislative veto pro-

vision, taken from the Senate bill, was significantly

*A summary of legislative veto provisions can be found in The

Supreme Court Decision in JNS v. Chadha and Its Implications for

Congressional Oversight and Agency Rulemaking: Hearings Be-

fore the Subcomm. on Administrative Law and Governmental Re-

lations of the House Comm. on the Judiciary, 98th Cong., 1st Sess.

24-72 (appended to statement of Edward C. Schmults, Deputy

Attorney General).

36a

strengthened before passage by the addition of the re-

quirement that final regulations be submitted to Con-

gress thirty days before they are issued. House Conf.R.

No. 95-1779, 95th Cong., 2d Sess. 105-06 (1978), U.S.

Code Cong. & Admin.News 1978, p. 3737. This refutes

the notion that the veto provision was mere boilerplate

with which Congress was little concerned. The legisla-

tive history thus casts “grave doubt” that Congress

would have enacted the Employee Protection Program in

its present form without the accompanying legislative

veto provision. See Pierce, 697 F.2d at 307.

“Congress did not declare the |veto] clause . . . to be

severable,” Pierce, 697 F.2d at 307 n. 5, and a court

cannot simply assume that it is severable. In the words

of Justice Frankfurter, construing legislation “is nothing

like a mechanical endeavor ... . [I]|nevitably there

enters into the construction of statutes the play of judi-

cial judgment within the limits of the relevant legislative

materials. Most relevant, of course, is the very language

in which Congress has expressed its policy and from

which the Court must extract the meaning most appro-

priate.” Local 1976, United Brotherhood of Carpenters

and Joiners of America v. NLRB, 357 U.S. 93, 100, 78

S.Ct. 1011, 1016, 2 L.Ed.2d 1186 (1958). Here the stat-

utory language directly links the admittedly unconstitu-

tional provision with the specific grant of rulemaking

authority under attack. Absent a responsible basis for

concluding that Congress did not consider the veto provi-

sion a central if not essential component of that grant

of authority, and would thus have enacted the remainder

of § 43 in its present form without it, the veto provision

cannot be severed and § 43 must be declared unconstitu-

tional in its entirety. In the Court’s judgment the other

“relevant legislative materials” do not supply such a

basis; if anything, they reinforce the view that the legis-

lative veto provision was intended to be an integral part

of the entire section.

37a

Taking into account the content and structure of the

Airline Deregulation Act, the circumstances surrounding

its enactment, and its legislative history, the Court thus

finds lacking “sufficient evidence that Congress would

have enacted the [Employee Protection Plan] provision

without regard to the clause [providing for a legislative

veto].” Pierce, 697 F.2d at 307 n. 5. The Court there-

fore concludes that the unconstitutional legislative veto

provision of § 43 is inextricably bound to the remainder

of that section and that Congress would not have enacted

the remainder of § 43 in its absence.® Accordingly, an

Order declaring § 43 unconstitutional in its entirety has

been filed herein.

5 Defendants suggest that the Court cannot strike down § 43 in

its entirety without also striking down the entire Airline Deregula-

tion Act. The Court has little difficulty in rejecting this argument,

and extended discussion is not necessary. The Court notes, however,

that Congress clearly considered the Employee Protection Program

to be an ancillary, preventative measure it did not even expect

would be used; it was enacted to deal with the mere “theoretical

possibility that a major reduction might occur in the labor force of

one or more airlines” as a result of deregulation, S.Rep. No. 631,

95th Cong., 2d Sess. 113 (1978). Nothing in the statute or legis-

lative history even remotely suggests that Congress would not have

passed the Act without the EPP or that in the absence of an EPP

it would have taken a different approach to deregulation.

® The parties’ cross motions were argued to the Court on May 4,

1984. Based on representations made in a motion filed by plaintiffs

on May 16, 1984, that the Department of Labor had announced

that the disputed regulations would become effective the next day,

the Court on May 17, 1984, issued its Order disposing of the case.

That Order stated that this Memorandum giving the Court’s reasons

would be filed at a later date.

38a

APPENDIX C

CONSTITUTION OF THE UNITED STATES

Article I, See. 1

All legislative Powers herein granted shall be

vested in a Congress of the United States, which

shall consist of a Senate and a House of Representa-

tives. Art. I, § 1.

Article I, See. 7, el. 2

Every Bill which shall have passed the House of

Representatives and the Senate, shall, before it be-

comes a Law, be presented to the President of the

United States. ...

Article I, See. 7, cl. 3

Every Order, Resolution, or Vote to which the

Concurrence of the Senate and House of Representa-

tives may be necessary (except on a question of

Adjournment) shall be presented to the President

of the United States; and before the Same shall

take Effect, shall be approved by him, or being dis-

approved by him, shall be repassed by two thirds

of the Senate and House of Representatives, accord-

ing to the Rules and Limitations prescribed in the

Case of a Bill.

STATUTES

49 U.S.C. app. § 1552 (1982). Employee protection pro-

gram.

(a) General rule

(1) The Secretary of Labor shall, subject to such

amounts as are provided in appropriation Acts, make

monthly assistance payments, or reimbursement pay-

ments, in amounts computed according to the provisions

of this section, to each individual who the Secretary finds,

39a

upon application, to be an eligible protected employee.

An eligible protected employee shall be a protected em-

ployee who on account of a qualifying dislocation (A)

has been deprived of employment, or (B) has been ad-

versely affected with respect to his compensation.

(2) No employee who is terminated for cause shall

receive any assistance under this section.

(b) Monthly assistance computation

(1) An eligible protected employee shall, subject to

such amounts as are provided in appropriation Acts, re-

ceive a monthly assistance payment, for each month in

which he is an eligible protected employee, in an amount

computed by the Secretary. The Secretary, after con-

sultation with the Secretary of Transportation, shall, by

rule, promulgate guidelines to be used by him in deter-

mining the amount of each monthly assistance payment

to be made to a member of each craft and class of pro-

tected employees, and what percentage of salary such

payment shall constitute for each applicable class or

craft of employees. In computing such amounts for any

individual protected employee, the Secretary shall deduct

from such amounts the fuli amount of any unemployment

compensation received by the protected employee.

(2) If an eligible protected employee is offered reason-

ably comparable employment and such employee does not

accept such employment, then such employee’s monthly

assistance payment under this section shall be reduced to

an amount which such employee would have been en-

titled to receive if such employee had accepted such em-

ployment. If the acceptance of such comparable employ-

ment would require relocation, such employee may elect

not to relocate and, in lieu of all other benefits provided

herein, to receive the monthly assistance payments to

which he would be entitled if this paragraph were not in

effect, except that the total number of such payments

shall be the lesser of three or the number remaining

40a

pursuant to the maximum provided in subsection (e) of

this section.

(ec) Assistance for relocation

If an eligible protected employee relocates in order to

obtain other employment, such employee shall, subject

to such amounts as are provided in appropriation Acts,

receive reasonable moving expenses (as determined by

the Secretary) for himself and his immediate family.

In addition, such employee shall, subject to such amounts

as are provided in appropriation Acts, receive reimburse-

ment payments for any loss resulting from selling his

principal place of residence at a price below its fair

market value (as determined by the Secretary) or any

loss incurred in cancelling such employee’s lease agree-

ment or contract of purchase relating to his principal

place of residence.

(d) Duty to hire protected employees

(1) Each person who is a protected employee of an

air carrier which is subject to regulation by the Civil

Aeronautics Board who is furloughed or otherwise ter-

minated by such an air carrier (other than for cause)

prior to the last day of the 10-year period beginning on

October 24, 1978, shall have first right of hire, regard-

less of age, in his occupational specialty, by any other

air carrier hiring additional employees which held a cer-

tificate issued under section 1371 of this Appendix prior

to October 24, 1978. Each such air carrier hiring addi-

tional employees shall have a duty to hire such a person

before they hire any other person, except that such air

carrier may recall any of its own furloughed employees

before hiring such a person. Any employee who is fur-

loughed or otherwise terminated (other than for cause),

and who is hired by another air carrier under the pro-

visions of this subsection, shall retain his rights of senior-

ity and right of recall with the air carrier that fur-

loughed or terminated him.

4la

(2) The Secretary shall establish, maintain, and peri-

odically publish a comprehensive list of jobs available

with air carriers certificated under section 1371 of this

Appendix. Such list shal! include that information and

detail, such as job descriptions and required skills, the

Secretary deems relevant and necessary. In addition to

publishing the list, the Secretary shall make every effort

to assist an eligible protected employee in finding other

employment. Any individual receiving monthly assist-

ance payments, moving expenses, or reimbursement pay-

ments under this section shall, as a condition to receiving

such expenses or payments, cooperate fully with the

Secretary in seeking other employment. In order to

carry out his responsibilities under this subsection, the

Secretary may require each such air carrier to file with

the Secretary the reports, data, and other information

necessary to fulfill his duties under this subsection.

(3) In addition to making monthly assistance or re-

imbursement payments under this section, the Secretary

shall encourage negotiations between air carriers and

representatives of eligible protected employees with re-

spect to rehiring practices and seniority.

(e) Period of monthly assistance payments

(1) Monthly assistance payments computed under sub-

section (b) of this section for a protected employee who

has been deprived of employment shall be made each

month until the recipient obtains other employment, or

until the end of the 72 months occurring immediately

after the month such payments were first made to such

recipient, whichever first occurs.

(2) Monthly assistance payments computed under sub-

section (b) of this section for a protected employee who

has been adversely affected relating to his compensation

shall be paid for no longer than 72 months, so long as

the total number of monthly assistance payments made

under this section for any reason do not exceed 72.

42a

(f) Rules and regulations

(1) The Secretary may issue, amend, and repeal such

rules and regulations as may be necessary for the ad-

ministration of this section.

(2) The rule containing tne guidelines which is re-

quired to be promulgated pursuant to subsection (b)

of this section and any other rules or regulations which

the Secretary deems necessary to carry out this section

shall be promulgated within six months after October 24,

1978.

(3) The Secretary shall not issue any rule or regula-

tion as a final rule or regulation under this section until

30 legislative days after it has been submitted to the

Committee on Commerce, Science, and Transportation of

the Senate and the Committee on Public Works and

Transportation of the House of Representatives. Any

rule or regulation issued by the Secretary under this

section as a final rule or regulation shall be submitted to

the Congress and shall become effective 60 legislative

days after the date of such submission, unless during

that 60-day period either House adopts a resolution stat-

ing that that House disapproves such rules or regula-

tions, except that such rules or regulations may become

effective on the date, during such 60-day period, that a

resolution has been adopted by both Houses stating that

the Congress approves of them.

(4) For purposes of this subsection, the term “legisla-

tive day” means a calendar day on which both Houses of

Congress are in session.

(g) Airline employees protective account

All payments under this section shall be made by the

Secretary from a separate account maintained in the

Treasury of the United States to be known as the Air-

line Employees Protective Account. There are authorized

to be appropriated to such account annually, beginning

with the fiscal year ending September 30, 1979, such

43a

sums as are necessary to carry out the purposes of this

section, including amounts necessary for the administra-

tive expenses of the Secretary related to carrying out

the provisions of this section.

(h) Definitions

For the purposes of this section—

(1) The term “protected employee” means a per-

son who, on October 24, 1978, has been employed for

at least 4 years by an air carrier holding a certifi-

cate issued under section 1371 of this Appendix.

Such term shall not include any members of the

board of directors or officers of a corporation.

(2) The term “qualifying dislocation” means a

bankruptcy or major contraction of an air carrier

holding a certificate under section 1371 of this Ap-

pendix, occurring during the first 10 complete cal-

endar years occurring after October 24, 1978, the

major cause of which is the change in regulatory

structure provided by the Airline Deregulation Act

of 1978, as determined by the Civil Aeronautics

Board.

(3) The term “Secretary” means the Secretary of

Labor.

(4) The term “major contraction” means a reduc-

tion by at least 71% percent of the total number of

full-time employees of an air carrier within a 12-

month period. Any particular reduction of less than

7% percent may be found by the Board to be part

of a major contraction of an air carrier if the

Board determines that other reductions are likely to

occur such that within a 12-month period in which

such particular reduction occurs the total reduction

will exceed 74% percent. In computing a 7!4-perceni

reduction under this paragraph, the Board shall not

include employees who are deprived of employment

because of a strike or who are terminated for cause.

44a

(i) Transfer of authority of Board

The authority of the Board under this section is trans-

ferred to the Department of Transportation on January

1, 1985.

(j) Termination

The provisions of this section shall terminate on the

last day the Secretary is required to make a payment

under this section.

(Pub. L. 95-504, § 43, Oct. 24, 1978, 92 Stat. 1750.)

REFERENCES IN TEXT

The Airline Deregulation Act of 1978, referred to in

subsee. (h) (2), is Pub. L. 95-504, Oct. 24, 1978, 92

Stat. 1705, as amended. For complete classification of

this Act to the Code, see Short Title of 1978 Amendment

note set out under section 1301 of this Appendix and

Tables.

CODIFICATION

Section was enacted as part of the Airline Deregula-

tion Act of 1978, and not as part of the Federal Avia-

tion Act of 1958 which comprises this chapter.

TRANSFER OF FUNCTIONS

All functions, powers, and duties of the Civil Aero-

nautics Board were terminated or transferred. by sec-

tion 1551 of this Appendix, effective in part on Dec. 31,

1981, in part on Jan. 1, 1983, and in part on Jan. 1,

1985.

For transfer of certain enforcement functions of the

Secretary or other official of the Department of Trans-

portation relating to compliance with this chapter and

the authorizations and regulations issued thereunder to

the Federal Inspector, Office of Federal Inspector of the

Alaska Natural Gas Transportation System, see Trans-

fer of Functions note set out under section 1301 of this

Appendix.

Sec.

220.01

220.02

220.03

220.04

220.10

220.11

220.20

220.21

220.22

220.23

220.24

220.25

220.26

220.27

220.28

220.29

45a

REGULATIONS

Part 220—AIRLINE EMPLOYEE

PROTECTION PROGRAM

Subpart A—Purpose and Scope of the

Airline Employee Protection Program

Definitions.

Purposes.

Seope.

Responsibilities of the Secretary of Labor.

Subpart B—Designated Employees’

Eligibility and Rights

Eligibility requirements.

Designated employees’ rights.

Subpart C—Carriers’ Responsibilities

Duty to hire.

Criteria for employment.

Listing a vacancy.

Content of vacancy listing.

Filling a vacancy.

List of protected employees.

Appeals to the Secretary.

Notice of rights.

Air Carrier actions to be reported to the Secre-

tary.

Equal employment opportunity.

Subpart D—Designated Employees’ Responsibilities

220.30

Designated employees’ responsibilities.

Subpart E—Department of Labor’s Responsibilities

220.40 Comprehensive job list.

220.41

List of protected employees.

46a

Subpart F—Administration

220.50 Effective period of the program.

220.51 Disclosure of information.

Appendix I—U.S. Carriers certificated as of October 23,

1978 under Section 401 of the Federal Aviation Act of

1958, as amended.

Authority: Section 43(f) of the Airline Deregulation

Act of 1978, Pub. L. No. 95-504, 92 Stat. 1750-1753 (49

U.S.C. 1552).

(Secretary’s Order No, 1-79, 44 FR 13093)

Subpart A—Purpose and Scope of the

Airline Employee Protection Program

§ 220.01 Definitions.

As used in this Part, unless the content otherwise indi-

cates:

(a) “Act” means the Airline Deregulation Act of 1978,

Public Law 95-504, 92 Stat. 1705.

(b) “Air Carrier’ means an air carrier certificated

under Section 401 of the Federal Aviation Act of 1958

(49 U.S.C. 1371).

(c) “Center” means the entity or location which from

time to time may be designated by the Secretary to re-

ceive, maintain and distribute the job listing information

required by this Part.

(d) “Corporate officer” means an individual who holds

any officer’s position established pursuant to the Articles

of Incorporation or bylaws of any air carrier, or who is

otherwise identified as an officer by any air carrier, in

filings with the Federal Aviation Administration, Civil

Aeronautics Board or Securities and Exchange Commis-

sion or in any reports to stockholders or any public com-

munications of an air carrier.

47a

(e) “Covered air carrier” means an air carrier which

was certificated prior to October 24, 1978 (A listing of

such carriers appears as an appendix to these regula-

tions).

(f) “Designated employee’ means a protected em-

ployee who meets the eligibility requirements set forth in

Section 220.10.

(g) “Effective period” means the period commencing

on the effective date of these regulations and ending on

the later of: (1) October 23, 1928, or (2) the last day

of the final month in which the Secretary is required to

make a payment under Section 43 of the Act; except

that nothing in these regulations shall preclude the exer-

cise of statutory rights and duties between October 24,

1978, and the effective date of these regulations.

—{h) “Eligibility period” means the ten-year period be-

ginning on October 24, 1978.

(i) “Employment relationship” means an attachment

to a covered air carrier which includes, but is not limited

to, compensated service, furlough, leave, or strike.

(j) “Equal employment opportunity requirement”

means a specific equal employment requirement, pursu-

ant to a federal court or administrative order, consent

decree, or conciliation agreement, requiring that named

individuals or specific members of a class are entitled to

relief by virtue of the carrier’s unlawful employment

discrimination.

(k) “Occupational specialty” means the class, craft,

or field of endeavor in which an individual was em-

ployed at the time of separation from a covered air car-

rier or in which the employee was employed during the

12 months immediately preceding the date of separation.

(1) “Protected employee” means a person other than a

member of the Board of Directors or corporate officer of

a covered air carrier:

48a

(1) Who had an employment relationship with a cov-

ered air carrier on October 24, 1978, and

(2) Who on October 24, 1978, had four years of em-

ployment or four years accrued seniority with a single

covered air carrier, The term employee shall include any

full or part-time employee other than an employee in sea-

sonal or temporary employment as defined herein. As

used herein four years of employment shall mean not

less than 48 months (whether or not conse utive) in

which the employee actually completed the minimum

number of hours of regular employment required for

such employee’s craft, class or position under the then

applicable requirements of the employing carrier.

(m) “Seasonal employment” means employment dur-

ing limited periods of the year due to peak market con-

ditions or other factors which are periodic in nature, and

in positions which do not confer seniority or recall rights.

(n) “Secretary” means the Secretary of Labor of the

United States.

(o) “Temporary employment” means employment of

limited duration which does not confer seniority or re-

call rights.

(p) “Terminated,” means, unless expressly provided to

the contrary, termination of employment, other than for

cause.

(q) “Terminated for cause” means the separation of

an individual from employment initiated by an air car-

rier for violation of such carrier’s rules, policies, proce-

dures, or practices pertaining to employee standards of

conduct, job performance, or dependability.

(r) “Vacancy” means an employment opportunity

other than seasonal or temporary employment, which an

air carrier seeks to fill from outside its existing or fur-

loughed work force.

49a

§$ 220.02 Purpose.

Section 43(d) of the Act provides a first-right-of-hire

for designated employees of covered air carriers. The

regulations in this Part are issued to effectuate section

43(d)(1) and (2) of the Act (hereinafter referred to as

the Rehire Program).

$ 220.03 Scope.

(a) The Rehire Program is applicable only to desig-

nated employees, as more fully set forth herein, and only

those employees who are expressly granted a hiring pref-

erence under the Act and these regulations have any

rights under the Rehire Program. The Secretary of

Labor will also publish a comprehensive list of jobs avail-

able with air carriers.

§$ 220.04 Responsibilities of the Secretary of Labor.

The Secretary of Labor is responsible for administer-

ing the Rehire Program, and the Assistant Secretary for

Labor-Maragement Relations, Labor-Management Serv-

ices Administration (LMSA), has been delegated respon-

sibility for the following:

(a) The development and promulgation of policies, reg-

ulations and procedures covering the first-right-of-hire

provisions of Section 43(d) (1) of the Act;

(b) The development and promulgation of policies,

regulations, and procedures covering the comprehensive

job list required wnder Section 43(d) (2) of the Act; and

(c) The establishment and implementation of report-

ing requirements for air carriers to obtain pertinent in-

formation necessary for fulfilling the Secretary’: respon-

sibilities under Section 43(d) (2) of the Act.

50a

Subpart B—Designated Employees’

Eligibility and Rights

§ 220.10 Eligibility requirements.

(a) To qualify as a designated employee eligible for

rights under this Part 220, an applicant must be a pro-

tected employee who is involuntarily placed on furlough

or is terminated by a covered air carrier during the

eligibility period.

(b) A protected employee shall not be deemed to be

furloughed or terminated if such employee:

(1) Retired voluntarily;

(2) Was required to retire by virtue of reaching the

mandatory retirement age, if any, established by a cov-

ered air carrier or as prescribed by any government

agency with regulatory authority over a covered air car-

rier;

(3) Retired due to a disability;

(4) Is on strike or is withholding services in support

of other employees who have struck the covered air car-

rier;

(5) Is terminated for cause as defined in § 220.01;

(6) Resigned or vo untarily quit for any reason.

(c) A designated employee who is recalled by his for-

mer carrier is no longer eligible under this section to

exercise the first-right-of-hire. Such a person may be-

come a designated employee in the future due to a sub-

sequent termination or furlough which occurs on or prior

to the expiration of the eligibility period.

$ 220.11 Designated employees’ rights.

(a) A designated employee shall have a first-right-of-

hire in such employee’s occupational specialty, regardless

of age, with any covered air carrier hiring additional

5la

employees; Provided, however, That each designated em-

ployee must satisfy all qualifications or other reauire-

ments established by the hiring carrier (subject io the

limitations contained in Section 220.21) and must make

a timely application in accordance with normal carrier

procedures for any particular job vacancy.

(b) A designated employee hired by any covered air

carrier pursuant to the provisions of ‘he Act shall not be

required, as a condition of employment, or in any other

manner, to relinquish, waive, or forfeit any seniority or

recall rights which such person may possess with any

other air carrier; Provided, however, That the provisions

of this part shall not be deemed to create or prolong any

such seniority or recal! rights.

Subpart C—Carriers’ Responsibilities

§ 220.20 Duty to hire.

(a) Subject to § 220.24, a covered air carrier shall

have the duty to hire a designated employee, regardless

of age, who otherwise meets the qualification require-

ments established by such carrier before it hires any

other applicant when such carrier is seeking to fill a

vacancy in the designated employee’s occupational spe-

cialty from outside its work force. As used herein “work

force” shall include all present employees and any fur-

loughed or terminated employees who, at the time of fur-

lough or termination, possessed recall or seniority rights.

(b) Subject to the provisions of § 220.24, a covered air

carrier shall not fill a vacancy, which would otherwise

be available to a designated employee, by promoting or

reassigning a seasonal or temporary employee, unless

such seasonal or temporary employee is a designated em-

ployee.

(ec) When considering applications from more than one

designated employee for a particular vacancy, a covered

52a

air carrier shall be entitled to offer employment to any

such designated employee in its absolute discretion.

§ 220.21 Criteria for Employment.

(a) A covered air carrier shall be entitled to apply

any prerequisites or qualifications determined by it for

any vacancy, except that, solely with respect to the duty

to hire created by the Act, a covered air carrier shall not

be entitled to limit employment opportunities for desig-

nated employees on the basis of:

(1) Initial hiring age (provided that such prohibition

shall not be applicable to retirement ages applicable to all

of any class or craft of such air carrier’s employees) ; or

(2) The existence of any seniority, recall rights or

previous experience with any other air carrier; Provided,

however, That covered air carriers shall be entitled to

require prospective employees to disclose the existence of

any such seniority or recall rights in making application

for employment and to take the existence or nonexistence

of such rights into account in selecting from among those

qualified designated employees who have applied for a

particular job vacancy.

(b) In filling job vacancies during the effective period,

covered air carriers shall be entitled to require appli-

cants to. furnish evidence that they are designated em-

ployees.

3 220.22 Listing a vacancy.

(a) During the effective period all air carriers shall

be required to list each vacancy with the Center at the

earliest practicable time, and to include with such list-

ing a statement as to whether the carrier is subject to an

equal employment opportunity requirement, as defined in

these regulations, in filling the vacancy. In addition, any

air carrier shall be entitled to list anticipated vacancies

with the Center at any time.

53a

§ 220.23 Content of vacancy listing.

Air carriers shall provide the Center with a descrip-

tion for each job listing, which shall include, but ned not

be limited to, the following—

(a) Job title;

(b) Type of position (full or part-time) ;

(ec) Salary;

(d) Basie qualifications and/or training requirements;

(e) Brief description of duties;

(f) Location of vacancy (if known) ;

(g) Special requirements such as type rating, licens-

ing, skill requirements, etc. ;

(h) Whether the vacancy is subject to the duty to

hire;

(i) Information on how to apply, such as contact per-

son, mailing address, and any special application proce-

dures; and

(j) Whether the carrier is subject to an equal employ-

ment opportunity requirement, as defined in these regu-

lations, in filling the vacancy.

§ 220.24 Filling a vacancy.

(a) A covered air carrier may fill a vacancy with a

designated employee at any time after a vacancy has

been listed with the Center.

(b) A covered air carrier may fill a vacancy with

someone who is not a designated employee after the va-

ecancy has been listed with the Center for at least 30

calendar days; if

(1) No designated employee with the requisite occupa-

tional specialty has applied for the vacancy in accordance

with § 220.30 within that time;

54a

(2) No designated employee who did apply within that

time period meets the carriers’ criteria for employment

as set forth in § 220.21; or

(3) The vacancy is subject to an equal employment

opportunity requirement and the carrier cannot satisfy

such equal employment opportunity requirement by hir-

ing a designated employee.

(c) A covered air carrier may fill a vacancy on a tem-

porary basis with someone who is not a designated em-

ployee while the carrier is considering applications for

the vacancy which were received from designated em-

ployees during the listing period.

(d) The date of the listing shall be the date on which

the listing is received by the Center.

$ 220.25 List of protected employees.

(a) Within 60 calendar days of the effective date of

these regulations, each covered air carrier shall provide

the Secretary with a list of all protected employees who

were employed by it on October 24, i978.

(b) The list shall contain the following information:

(1) Protected employee’s name;

(2) Social Security number (if available) ; and

(3) Current occupational specialty for present em-

ployees or occupational specialty at the time of separa-

tion from employment for former employees.

(c) Not later than 90 calendar days after the effec-

tive date of these regulations, each covered air carrier

shall provide a onetime notice to each employee with an

employment relationship with the carrier on October 24,

1978, stating whether or not the carrier has determined

that employee to be a protected employee within the

meaning of these regulations, and if so that the carrier

has reported his or her name to the Secretary. Employ-

55a

ees who are determined to be not protected shall be ad-

vised of their rights to appeal.

(2) Employees who dispute the carrier’s determina-

tion of protected status may submit evidence of their

status to the covered air carrier within 60 calendar days

of receiving the notice required by paragraph (c) (1).

(3) The covered air carrier shall consider the evidence

submitted by the employee and shall inform the em-

ployee of its final determination within 15 calendar

days of the submission of evidence. In the event the car-

rier determines that the employee qualifies as a protected

employee, it shall forward the information required by

paragraph (b) of this section to the Secretary.

$ 220.26 Appeals to the Secretary.

(a) If the employee disagrees with the carrier’s final

determination under § 220.25 that he or she is not a

protected employee within the meaning of this part, the

employee (or his or her designated representative with

express authorization) may appeal such determination to

the Secretary within 60 calendar days of the carrier’s

final decision under § 220.25(c)(3) or the date when

such decision was required.

(b) An appeal must be written, dated, and signed by

the employee. It must set forth:

(1) The full name, address, and telephone number of

the employee;

(2) The full name and address of the carrier making

the determination; the full name of the individual(s)

who made the determination for the carrier and the date

of that determination;

(3) A summary of the pertinent events and circum-

stances concerning the employee’s status and the basis of

the disagreement, including the original date of hire,

56a

date of all periods of furlough, leave or termination, and

copies of relevant documents; and

(4) Such other information as may be required by the

Labor-Management Services Administration (LMSA).

(c) Any appeal hereunder may be filed w ‘h any office

of the LMSA (LMSA Area offices are listed as an ap-

pendix to these regulations). Upon receipt, an appeal

will be forwarded to an LMSA Regional Office where the

Regional Administrator will make a preliminary review

of the appeal, and if warranted, request information

from the parties or conduct such other investigation as

may be required. If the matter cannot be resolved in-

formally, the Regional Administrator will forward the

file to the Secretary for review.

(d) If upon review of an appeal hereunder the Secre-

tary determines that further action is not appropriate, he

will so advise the parties. If upon review of the entire

record the Secretary determines that the employee quali-

fies for protected status, the Secretary will take appro-

priate steps to add the employee’s name to the list of pro-

tected employees and will so notify the parties.

§ 220.27 Notice of Rights.

(a) Not later than the date of separation from employ-

ment, a covered air carrier which furloughs or terminates

a protected employee during the eligibility period, unless

such furlough is limited to a specific period of less than

90 calendar days, shall furnish such protected employee

with a notice of rights in the form of a letter or other

written documentation that such employee is a designated

employee and thereby is entitled to exercise a_first-

right-of-hire. Such notice of rights shall include, but not

be limited to the following information:

(1) Name;

(2) Social Security number (if available) ;

57a

(3) Occupational specialty ;

(4) Date of furlough or termination;

(5) An official of the covered air carrier who can

verify the individual’s status as a designated employee;

and

(6) Signature, name, and location of the certifying

official.

(b) As soon as practicable, but not later than 60 calen-

dar days following the effective date of these regulations,

each covered air carrier shall make a reasonable effort to

provide the notice of rights required in paragraph (a) of

this section to any designated employee who was fur-

loughed or terminated by such carrier on or after Octo-

ber 24, 1978, and prior to the effective date of these reg-

ulations and who has not been recalled to employment by

such covered air carrier.

(c) A covered air carrier shall provide a verified true

copy of the notice of rights to a designated employee who

has lost his or her original copy.

§ 220.28 Air carrier actions to be reported to the Secre-

tary.

(a) A covered air carrier shall report to the Secretary:

(1) The names and Social Security numbers (if avail-

able) of all designated employees hired by it, and

(2) The filling of any vacancy with other than a des-

ignated employee. With respect to any occurrences re-

ported under paragraph (a) (2) of this section, the report

of the covered air carrier shall contain the job order num-

ber assigned to that vacancy by the Center, the date of

hire, and a certification by a corporate officer that the

carrier complied with the provisions of this part and that

no qualified designated employee with the requisite occu-

pational specialty applied in a timely manner.

58a

(b) Two copies of the reports required by this section

shall be filed with the Secretary covering the six-month

periods ending June 30 and December 31 of each calen-

dar year in which these regulations are in effect and shall

be submitted within 60 calendar days of the end of the

reporting period.

§ 220.29 Equal Employment Opportunity.

(a) Where a covered air carrier is under an equal

employment opportunity requirement, the covered air car-

rier shall, to the extent possible, satisfy this equa! em-

ployment obligation by hiring qualified designated em-

ployees.

(b) Where a covered air carrier is under an equal

employment opportunity requirement and cannot satisfy

such requirement by hiring from the pool of qualified

designated employees, the carrier may meet its equal em-

ployment requirement by hiring non-designated employees.

Provided, however, That this provision shall not change

or reduce the responsibilities of carriers in regard to the

hiring procedures required by §§ 220.21, 220.22, 220.23,

and 220.24.

Subpart D—Designated Employees’ Responsibilities

§ 220.30 Designated employees’ responsibilities.

It is the responsibility of each designated employee to:

(a) Make application to any covered air carrier for

whom the designated employee desires to work in the time

and manner required by such carrier.

(b) To insure that an application previously submitted

to a covered air carrier which currently lists a vacancy is

in an active status so as to be considered for such va-

cancy;

(c) To provide a copy, if requested, of the notice of

rights to a potential employing air carrier, and

59a

(d) To retain the original notice of rights for future

use.

Subpart E—Department of Labor’s Responsibilities

§ 220.40 Comprehensive job list.

(a) The Secretary shall establish a Center to maintain

a comprehensive listing of all vacancies listed by air car-

riers in accordance with §§ 220.22 and 220.23.

(b) The Center will be accessible by telephone through-

out the United States to facilitate the listing or modifying

of vacancy information by air carriers.

(c) The Center shall provide an air carrier with an

identifying number for each vacancy listed on the com-

prehensive listing.

(d) The comprehensive listing shall be compiled, pub-

lished and distributed to each local office of the State Em-

ployment Security Agencies on a periodic basis as deter-

mined necessary by the Secretary, and it shall be distrib-

uted to such other individuals or organizations as may de-

sire to receive copies thereof in accordance with criteria

established by the Secretary from time to time.

§ 220.41 List of protected employees.

The Secretary shall establish and publish a list of pro-

tected employees as reported by covered air carriers un-

der § 220.25. A copy of this list shall be sent to all cov-

ered air carriers as soon as available. >

Subpart F—Administration

§ 220.50 Effective period of the program.

(a) Beginning date. (1) The requirements set forth in

this part shall be effective 60 legislative days from publi-

cation of these regulations (A legislative day is defined

by the Act as a calendar day when both Houses of Con-

gress are in session).

60a

(2) The Department shall publish a notice in the Fed-

eral Register announcing the actual effective date.

(b) Ending date. This program and these regulations

terminate on the last day of the effective period.

(ec) Nothing in this Part shall affect the rights and

duties of protected employees and covered air carriers

under the Act prior to the effective date of this Part.

§ 220.51 Disclosure of information.

The Department of Labor shall make available to cov-

ered air carriers and to designated employees or their

authorized representatives, all reports, certifications, or

lists collected under this Part, to the extent permitted by

the Privacy Act (5 U.S.C. 552a) and the Department’s

regulations issued pursuant to that Act (29 CFR Part

70a).

Appendix I—U.S. Carriers Certificated as of October 23,

1978;>-Under Section 401 of the Federal Aviation Act of

1958, as Amended

(Annotations Reflect Operating Status as of October

25, 1983).

1. Airlift International, Inc.

Air Micronesia, Inc.

Air Midwest

Air New England, Ine. (1)

Air Wisconsin, Ince.

Alaska Airlines, Inc.

Allegheny Airlines, Inc. (2)

Aloha Airlines, Inc.

Pres PSP FF FP

American Airlines, Inc.

6la

Aspen Airways, Inc.

. Braniff Airways, Inc. (1)

Capitol International Airways, Inc. (7)

Chicago Helicopter Airways, Inc.*

Colonial Airlines, Inc. (7)

Continental Air Lines, Inc.

Delta Air Lines, Inc.

Eastern Airlines, Inc.

Evergreen International Airlines, Inc.

The Flying Tiger Line, Inc.

. Frontier Airlines, Inc.

. Hawaiian Airlines, Inc.

Hughes Air Corp.* (4)

. Kodiak Western Alaska Airlines, Inc.

. Mackey International Airlines, Inc.*

. McCulloch International Airlines, Inc.

Midway Airlines, Inc.

. Midway (Southwest) Airways Co.

. Modern Airways, Inc. (1)

. Munz Northern Airlines, Inc.

. National Airlines, Inc.* (5)

. New York Airways, Inc.*

North Central Airlines, Inc.* (4)

Northwest Airlines, Inc.

. Overseas National Airways, Inc. (6)

. Ozark Air Lines, Inc.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

62a

Pan American World Airways, Inc.

Piedmont Aviation, Ine.

Reeve Aleutian Airways, Inc.

Rich International Airlines, Inc.

Seaboard World Airways, Inc.* (7)

Southern Air Transport, Inc.

Southern Airways, Inc.* (4)

Texas International Airlines, Inc.

Trans International Airlines, Inc. (8)

Trans World Airlines, Inc.

United Airlines, Inc.

Western Air Lines, Inc.

Wien Air Alaska, Inc.

World Airways, Inc.

Wright Air Lines, Ine.

Zantop International Airlines, Inc.

* No longer holds certificate.

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

Holds certificate, but not operating.

Renamed U.S. Air, Ine.

Renamed Capitol Air, Inc.

Merged in to Republic Airlines, Inc.

Merged into Pan American World Airways, Inc.

Ceased operations in September 1978.

Merged into Flying Tiger Line, Inc.

Renamed Transamerica Airlines, Inc.

Note.—This appendix will appear in the Code of Fed-

eral Regulations.

63a

APPENDIX D

The following is a list of parent companies, subsidiaries

{except wholly owned) and affiliates of petitioners, pur-

suant to Supreme Court Rule 28.1:

Alaska Air Group, Inc.

AMR Corporation

Capitol Air Sales, Inc.

Air Reservations, Inc.

Tiger International, Inc.

Skyvoyager Air, Inc.

Tiger Trading Co.

Flying Tiger Air Services, Inc.

SWAP, Inc.

Montana Enterprises, Inc.

Tomisato Shoji Kabuskiki Kaisha

Affiliated Enterprises, Inc.

Norfolk Southern Corporation

Air Services, Inc.

Aviation Supply Corporation

NWA, Ince.

Northwest Aircraft, Inc.

Gatwick Handling, Ltd.

Compas 315, Ltd.

Ozark Holdings, Inc.

UAL, Ince.

Hertz Corp.

64a

Mauna Kea Properties, Inc.

Westin Hotel Company

GAB Business Services, Inc.

UAL Capital Corporation

146 Haynes Corporation

Olohana Corporation

Mileage Plus, Inc.

E & T Trading Corporation

United Airlines Capital Corporation

United Airlines Credit Corporation

United Airlines Aircrew Training, Inc.

United Airlines B.V.

United Airlines 8.A. de C.V.

United Vacations, Inc.

UAL Leasing, Inc.

Contingency Corp.

Dempster Properties

J & N Trading Corporation

The Linneman Corporation

United Airlines Space Technologies

USAir Group, Inc.

Henson Aviation, Inc.

JJF Investments, Inc.

WAL Communication, Inc.