Opposition Brief — Alaska Airlines, Inc. v. Brock

Supreme Court, U.S.

FILED

iy é

No. 85-920 9 FEB 10 1908

JOSEPH F. SPANIOL, JR.

Ste RK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

ALASKA AIRLINES, INC., ET AL., PETITIONERS

V.

WILLIAM E. Brock, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE SECRETARY OF LABOR

IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DOUGLAS N. LETTER

Attorney

Department of Justice

Washington, D. C. 20530

(202) 633-2217

pve

QUESTION PRESENTED

Whether the legislative veto provision in subsection (f)3)

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

U.S.C. App. 1552(f)\(3), is severable from the remainder of

Section 43, which establishes reemployment protection for

certain employees of: air carriers.

(I)

TABLE OF CONTENTS

Page

CEE Cerra eee esccececcceccesecccece l

EE EE l

EE EES ES EE EE l

Argument ....... OS PESOS TTT CPTTTTE ETE TTT 5

EES SEES SIS SP POOP EEE 12

TABLE OF AUTHORITIES

Cases:

Buckley v. Valeo, 424 U.S. 1 ............. 6, 9, 11

Champlin Refining Co. v. Corporation

Commission, 286 U.S. 210 ...... eon on

EEOC v. Allstate Insurance Co.,

No. 83-1021 (June 11, 1984) ................. 5

EEOC v. CBS, Inc., 743 F.2d 969 ............ 10

EEOC v. Hernando Bank, Inc.,

De es cc cescccecs 10

Enerey Reserve Group, Inc. v. Department of

Energy, cert. denied, No. 84-188

ss cose ceccccccccce 11

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

cert. denied, No. 84-20 (Oct. 1, 1984) ..... 10, 11

Heckler v. Edwards, 465 U.S. 870 ............. 5

INS v. Chadha, 462 U.S.919 ...... 3, 4, 5, 6, 7,9

McCorkle v. United States, 559 F.2d 1258,

cert. denied, 434 U.S. 101] ................. 10

Muller Optical Co. v. EEOC,

EEE 10

IV

Page

Cases—Continued:

Regan v. Time, Inc., No. 82-729

SE By GD - Kb vubiedeehsescvevesetenesads 9

Rhode Island Federation of Teachers v.

HTB aE, GIO FM GSS cc cccvvcvcccccccccces 10

Scheinberg v. Smith, 659 F.2d 476 ............ 10

United States v. Jackson, 390 U.S. 570 ......... 9

Statutes:

Airline Deregulation Act of 1978, Pub. L.

No. 95-504, 92 Stat. 1705 et seg. ............4.. I

$ 43, 49 U.S.C. App. 1552 ........ 1, 3,6, 7,9

$ 43(a), 49 U.S.C. App. 1552(a) .......... 7,8

$ 43(b), 49 U.S.C. App. 1552(b) ....... 2, 7,8

§$ 43(c), 49 U.S.C. App. 1552(c) .......... 7,8

$ 43(d), 49 U.S.C. App. 1552(d) ....... 2, 6, 7

§$ 43(e), 49 U.S.C. App. 1552(e) ............ 2

§$ 43(f), 49 U.S.C. App. 1552(f) ........ 2, 6, 7

$ 43(f)(1), 49 U.S.C. App.

ET 6 be bbbN600b040is.6Kocenewns 2, 6

$ 43(f)(3), 49 U.S.C. App.

SED Cbd 6 Od6db6Seeroeeccnees 2, 3, 5,8

$ 43(h\(1), 49 U.S.C. App.

PED caccecesecoensanbbecescvavns 2

Federal Aviation Act, 49 U.S.C. App.

1301 et seq. :

49 U.S.C. App. 1301 ..... oeeeonns 9

Page

Statutes—Continued:

SE CUD -cecdeceeseesestdnenas 2

PP Hi senttandeckeasseeresanesieunes 5

PU EE Sh bes ceeedcdkdcecescnnuaceaeve 5

Miscellaneous:

SE, SUED oe cceccsasdenceesedes 3

GB FeG. Ram, FASO CIGGS) oc ccccccccccccccccces 4

H.R. Rep. 95-211, 95th Cong., 2d Sess.

ree rT ere rT ere 8

S. Rep. 95-63! 95th Cong., 2d Sess.

DEE Ga becucedatuseusert cs eussaveauslnene &

a

af.

io 4

eet.

-_

Set

—_ — a

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1985

ALASKA AIRLINES, INC., ET AL., PETITIONERS

Vv.

WILLIAM E. Brock, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE SECRETARY OF LABOR

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is

reported at 766 F.2d 1550, and the opinion of the district

court (Pet. App. 30a-37a) is reported at 594 F. Supp. 92.

JURISDICTION

The judgment of the court of appeals was entered on July

16, 1985, and the petition for rehearing was denied on

September 11, 1985. The petition for a writ of certiorari was

filed on November 27, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1978, Congress passed the Airline Deregulation

Act, Pub. L. No. 95-504, 92 Stat. 1705 et seq., in order to

free significant aspects of the airline industry from federal

regulation. Because of concern that this legislation might

have a major impact on airline employees, Congress

included in Section 43 of the Deregulation Act (49 U.S.C.

App. 1552) several employee protection provisions. Section

(1)

2

43(d) (49 U.S.C. App. 1552(d)) provides that a protected

employee of a federally regulated air carrier who is fur-

loughed or otherwise terminated by the carrier (other than

for cause) during the 10-year period following the date of

enactment of the Deregulation Act (October 24, 1978) shall

have a first right of hire with any other carrier that held a

certificate under 49 U.S.C. App. 1371 on October 24, 1978.'

Each such air carrier has a corresponding duty to hire a

terminated protected employee, except that the carrier may

recall any of its own employees who had been furloughed

before hiring a protected employee who had been laid off by

another carrier. In addition, subsections (b) and (e) provide—

Subject to the amount of funds actually made available under

appropriation acts—for the payment of monthly benefits to

protected employees who have been deprived of employ-

ment. 49 U.S.C. App. 1552(b) and (e). However, Congress

has not appropriated any funds to implement the latter

provision.

Subsection (f){ 1) of Section 43 (49 U.S.C. App. 1552(f)(1))

provides that the Secretary “may issue, amend, and repeal!

such rules and regulations as may be necessary for the

administration of [Section 43].” Paragraph (3) of subsec-

tion (f) provides that the Secretary shall not issue any rule or

regulation in final form until 30 legislative days after it was

submitted to the responsible committees of the House and

Senate, and a final regulation in turn shall become effective

60 legislative days after it was submitted to Congress unless

one House of Congress has passed a resolution of disappro-

val during that period. The Secretary promulgated final

reguiations concerning the “first right of hire” provision in

'The term “protected employee” is defined by Section 43(h\1), 49

U.S.C. App. 1552(h)(1) to mean a person who, on October 24, 1978. had

been employed for at least four years by a certified carrier.

3

Section 43(d) in November 1983 (Pet. App. 45a-60a).? The

regulations were scheduled to become effective 60 legisla-

tive days after they were promulgated (id. at 59a).

2. Shortly after the regulations were promulgated in

final form, petitioners filed this action against the respon-

dent Secretary of Labor in the United States District Court

for the District of Columbia. Petitioners challenged the

Statute and the implementing regulations on a variety of

grounds, including that the statutory subsection establish-

ing a first right of hire was invalid because of the inclusion

of a legislative veto clause in the subsection authorizing the

promulgation of regulations. Several airline employee

unions intervened to support the statute and implementing

regulations. The Secretary conceded that the legislative

veto provision in subsection (f)(3) is invalid under this

Court’s decision in JNS_ v. Chadha, 462 U.S. 919 ('983),

but the Secretary took the position that the veto provision is

severable from the remainder of Section 43, thereby leaving

the first right of hire provision intact (Pet. App. 5a).

On May 17, 1984, the date on which the regulations were

to become effective, the district court held that the legisla-

tive veto provision was inseverable from the remainder of

Section 43. The court therefore invalidated the airline

employee protection program in its entirety and enjoined

implementation of the regulations. Pet. App. 30a-37a.

3. The court of appeals reversed (Pet. App. la-29a).

After reviewing the severability principles applied by this

Court, particularly in Chadha itself, the court concluded

that the invalid legislative veto provision must be severed

“ ‘u]niess it is evident that the Legislature would not have

?Proposed regulations had been promulgated in 1979. 44 Fed. Reg.

19146

4

enacted those provisions which are within its power, inde-

pendently of that which is not’ ” (Pet. App. 16a, quoting

Chadha, 462 U.S. at 931-932). The court further concluded

that petitioners must overcome a presumption of severabil-

ity because the first right of hire provision “is fully operable

as a law” without the legislative veto provision (Pet. App.

16a, quoting Chadha, 462 U.S. at 934). Applying these

principles, the court found the veto provision to be severa-

ble. It found no indication that Congress would have

declined to enact an employee protection program without

the provision for a one-House veto of implementing regula-

tions, observing that “Congress had a strong, humanitarian

desire to provide for airline employee protections” and, by

contrast, “expressed relatively little concern about the veto

provision” (id. at 19a). See generally id. at 19a-20a.* The

court of appeals accordingly remanded the case to the dis-

trict court to consider petitioners’ other challenges to the

regulations, which had not been addressed by the district

court (id. at 28a).

4. On remand, in an opinion dated January 22, 1986, the

district court, with one exception, sustained the Secretary’s

regulations against petitioners’ contentions that they were

inconsistent with the statute. Alaska Airlines, Inc. v.

Brock, Civ. No. 84-0485 (D.D.C.).* The exception concerns

Section 220.21(a\1) of the regulations (Pet. App. 52a; 48

Fed. Reg. 52863 (1983)), which relates to the initial hiring

age of flight officers and pilots. The district court remanded

the question of the validity of this provision to the Secretary

for further consideration in light of petitioners’ contention

3Judge Ginsberg, concurring in the judgment, likewise concluded

that “{d]eletion of the veto preserves section 43 and thereby gives effect

to the dominant intent of Congress,” while a declaration of inseverabil-

ity “would be far more destructive of the legislature’s will” (id. at 29a).

“We have lodged a copy of the district court’s January 22 opinion

with the Clerk of this Court. ;

5

that the initial hiring age may affect the amount and ade-

quacy of an employee’s training and experience, and ther-

eby implicate safety concerns. Slip op. 12-14. After the

district court and court of appeals declined to stay the

effective date of the regulations, the Chief Justice, by order

dated January 27, 1986, denied petitioners’ application for a

stay of the regulations pending the Court’s disposition of

the instant certiorari petition. No. A-571.

ARGUMENT

The court of appeals, applying the severability principles

of this Court’s decision in Chadha, correctly held that the

legislative veto provision in Section 43(f)(3) of the Airline

Deregulation Act of 1978 (49 U.S.C. 1552(f)(3)) is severable

from the remainder of Section 43. This holding does not

conflict with any decision of this Court or another court of

appeals, and it presents no issue of general importance

warranting review by this Court.°

1. a. In Chadha, the Court held that an unconstitutional

legislative veto provision is to be severed from the

remainder of the statute “ ujnless it is evident that the

Legislature would not have enacted those provisions which

are within its power, independently of that which is not.’ ”

‘Petitioners’ suggestion (Pet. 7-8 n.5) that the court of appeals did not

have jurisdiction of respondents’ appeals under 28 U.S.C. 1291 is

refuted by this Court’s jurisdictional ruling in EEOC v. Allstate Insur-

ance Co., No. 83-1021 (June 11, 1984). There, the EEOC took a protec-

tive direct appeal to this Court pursuant to 28 U.S.C. 1252 from the

district court’s holding that the legislative veto provision in the Reor-

ganization Act of 1977 was inseverable from the remainder of the Act.

However, the EEOC argued that an appeal from such a holding of

nonseverability, which presents a question of legislative intent rather

than constitutional law, must be taken to a court of appeals pursuant to

28 U.S.C. 1291. See Heckler v. Edwards, 465 U.S. 870 (1984). The

Court thereafter dismissed the appeal in Allstate, thereby making clear

that an appeal in a case such as this must be taken to the court of appeals

under 28 U.S.C. 1291, not to this Court under 28 U.S.C. 1252.

6

462 U.S. at 931-932, quoting Buckley v. Valeo, 424 U.S. 1,

108 (1976), and Champlin Refining Co. vy. Corporation

Commission, 286 U.S. 210, 234 (1932). The Court further

reiterated the established principle that an unconstitutional

statutory provision is “presumed severable if what remains

after severance ‘is fully operable as a law.’ "462 U.S. at 934,

quoting Champlin, 286 U.S. at 234. The court of appeals

adhered to those principles in this case. See Pet. App.

1S5a-19a.

The court of appeals correctly held (Pet. App. 19a), and

petitioners do not dispute, that the first right of hire provi-

sion is fully operable as a law if the legislative veto provision

is severed. Indeed, contrary to petitioners’ apparent

assumption, a carrier’s obligation to hire protected

employees who are furloughed or terminated by another

carrier is not dependent upon the issuance of any regula-

tions by the Secretary. The statute itself imposes that obli-

gation. Section 43(d) states, without any reference to

implementing regulations, that “[e]ach such air carrier hir-

ing additional employees shall have a duty to hire such a

person before they hire any other person.” 49 U.S.C. App.

1552(d). Because the legislative veto provision applies only

to regulations, not to the substantive obligation of the

carriers under Section 43(d), it is particularly clear that

Section 43 is fully operable as a law without the veto

provision.

Similarly, the separate subsection (f), which addresses the

issuance of regulations, simply states that “[t]he Secretary

may issue, amend, and repeal such rules and regulations as

may be necessary for the administration of this section.”

$ 43(f)(1), 49 U.S.C. App. 1552(f)(1) (emphasis added).

This language would not appear to impose on the Secretary

a mandatory duty to issue regulations that, if issued, would

be subject to a legislative veto. Nor does Section 43(f)(1)

make the effectiveness of the substantive first right of hire

7

under Section 43(d) contingent upon the issuance of such

regulations.® Instead, the regulations to which it refers are

those necessary for the “administration” of Section 43(d)

and the other substantive provisions elsewhere in Section

43. Thus, the text of the Act refutes petitioners’ contention

that the provision in subsection (f) for a one-house legisla-

tive veto of regulations was deemed by Congress to be so

central that it is inseverable from Section 43(d), which

imposes the hiring obligation on petitioners. A fortiori, it is

not “evident” that Congress would have refused to enact the

valid substantive provisions of Section 43 independently of

the legislative veto provision. Chadha, 462 U.S. at 931-932.

b. This conclusion is strongly reinforced by the legisla-

tive history of Section 43. The employee protection provi-

sion is “an integral part of a comprehensive deregulatory

regime” (Pet. App. 23a). As the court of appeals concluded

after reviewing the legislative history (id. at 28a):

Ample evidence persuades us that the employee pro-

tection 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 pro-

tection plan.

Petitioners devote virtually no attention to this holding or

to the court of appeals’ careful analysis of the legislative

‘By contrast, Congress expressly made the effectiveness of the other

employee protection provision in Section 43—the availability of

monthly assistance payments and relocation assistance—contingent

upon further action by Congress. It provided that entitlement to such

payments was to be “subject to such amounts as are provided in appro-

priation Acts” (§ 43(a), (b) and (c), 49 U.S.C. App. 1552 (a), (b) and (c)).

The omission of any comparable condition in Section 43(d) reinforces

the conclusion that Congress intended it to have independent effect,

irrespective of the existence of implementing regulations or the authori-

zation of a legislative veto of such regulations.

8

history, and they fail to raise any serious doubt about the

soundness of the court’s conclusions. See Pet. 20-22.

As the court of appeals correctly observed (Pet. App.

20a-21a), both the House and Senate versions of the pro-

posed deregulation legislation contained airline employee

protection provisions, and each body deeried such protec-

tions important. See S. Rep. 95-631, 95th Cong., 2d Sess.

113-114 (1978); H.R. Rep. 95-211, 95th Cong., 2d Sess. 26

(1978). Moreover, the version of the employee protection

plan adopted by the Conference Committee was essentially

similar to that proposed by the Senate, which was regarded

as the weaker of the two plans. See Pet. App. 21a n.10.

Thus, the legislative veto provision was not inserted at the

insistence of one House as a condition to its agreement to a

stronger protection program proposed by the other House.

See Pet. App. 20a-2la, 26a-28a.

As the court further observed, various comments in the

legislative history that an employee protection program

might prove to be unnecessary apparently were premised on

the view that overall employment in the airline industry

might not be adversely affected by deregulation, and that

for this reason the federally funded unemployment benefits

under Section 43(a), (b) and (c) might be unnecessary; those

comments did not address the question of adverse impacts

on particular carriers, to which the first right of hire provi-

sion was addressed. See Pet. App. 22a-23a.

Petitioners also rely (Pet. 3-4, 21-22 & n.14) on the fact

that the Conference Committee inserted the requirement in

Section 43(f)(3) that proposed regulations be submitted to

and lay before the respective congressional committees for

30 days before they are published in final form, at which

point they then are subject to a formal legislative veto.

However, this “report and wait” provision by its terms gives

Congress no substantive authority, and it therefore adds

nothing to the veto provision itself.

9

Under these circumstances, it is no more “evident” from

the legislative history than it is from the text of Section 43

that Congress would have refused to pass the remainder of

the employee protection plan without a legislative veto.

Severance accordingly was compelled by this Court’s

precedents. Chadha, 462 U.S. at 931-932; Buckley, 424 U.S.

at 108.’

2. Petitioners contend (Pet. 11-16), however, that the

court of appeals utilized an incorrect test for determining

whether the legislative veto provision is severable. Petition-

ers simply ignore the fact that the court of appeals quoted at

length (see Pet. App. 15a-18a), and then faithfully applied

(see id. at 19a-28a), the principles of severability followed

by this Court in Chadha and Regan v. Time, Inc., No.

82-729 (July 3, 1984), slip op. 11 (plurality opinion), which

in turn were drawn from this Court’s prior decisions in

Buckley and Champlin Refining Co.* In particular, the

court of appeals, like this Court in each of the decisions just

cited, posed the central question to be whether “ ‘it is evi-

dent that the Legislature would not have enacted those

provisions which are within its power, independently of that

which is not’ ” (Pet. App. 16a). Moreover, although peti-

tioners contend (Pet. 16-20) that the decision below con-

flicts with decisions of other courts of appeals, the three

court of appeals decisions relied upon by petitioners in

’Petitioners also attempt to gain support (Pet. 14-15 n.7) from the

lack of a severability clause covering Section 43. However, as the court

of appeals noted (Pet. App. 16a-17a n.7), it is not at all clear that the

pre-existing severability clause in the Federal Aviation Act, 49 U.S.C.

App. 1301, is inapplicable to Section 43 or that Congress believed it to

be inapplicable. In any event, the court of appeals properly recognized

(Pet. App. 16a n.7) that the “ultimate determination of severability will

rarely turn on the presence or absence of such a clause.” United States v.

Jackson, 390 U.S. 570, 585 n.27 (1968).

*Petitioners concede (Pet. 11-16) that the principles announced in

these decisions are controlling here.

10

which the court actually resolved the question of the sever-

ability of a legislative veto provision all applied precisely

this same test drawn from Champlin Refining Co. See

EEOC v. CBS, Inc., 743 F.2d 969, 971 (2d Cir. 1984) (cited

at Pet. 17); EEOC v. Hernando Bank, Inc., 724 F.2d 1188,

1190 (Sth Cir. 1984) (Pet. 18); McCorkle v. United States,

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

1011 (1978) (Pet. 18-19).° The remaining two court of

appeals decisions cited by petitioners (Pet. 18, 19) addressed

the severability of unconstitutional provisions of a state

statute; they did not involve a legislative veto provision in a

federal statute, as here. Nonetheless, one of the two deci-

sions again explicitly followed Champlin Refining Co. (see

Rhode Island Federation of Teachers v. Norberg, 630 F.2d

855, 863 (Ist Cir. 1980)), and the other did not suggest a

different approach (see Scheinberg v. Smith, 659 F.2d 476,

481-482 (Sth Cir. 1981)).

Petitioners apparently premise their argument that the

court below applied an erroneous test of severability on the

following statement in its opinion: “ ‘the question is not

whether Congress would have enacted th[is] exact statutef]

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

legislative veto provision{], to no statute{] at all’ ” (Pet.

App. 18a (emphasis and brackets in original), quoting Gulf

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

denied, No. 84-20 (Oct. 1, 1984). Contrary to petitioners’

contention (Pet. 8-10, 11-12, 16, 19-20), this observation

manifests no departure from settled severability principles,

and there was no suggestion by the court below or by the

In the fourth legislative veto decision cited by petitioners (Pet. 19),

the court of appeals did not resolve the question of severability,

although there likewise is nothing in its opinion to suggest a different

approach to that question. See Muller Optical Co. v. EEOC, 743 F.2d

380, 387-388 (6th Cir. 1984).

1]

TECA in Gulf Oil Corp. v. Dyke, supra, that any such

departure was intended.'® Rather, the observation simply

gives expression to the two alternatives confronting a court

that must rule on a question of severability: the court must

either leave the statute in effect with the unconstitutional

provision severed, or it must invalidate the statute in its

entirety. In either event, the result is not exactly what Con-

gress contemplated when it enacted the statute. Nor is the

court free to refashion the law Congress did enact in an

effort to replicate exactly what the Court believes Congress

would have passed if it had known the legislative veto

provision would be held unconstitutional.

Thus, the passage quoted above is but another way of

stating the common sense question presented in any severa-

bility case: would the legislature have preferred the statute,

after severance of the unconstitutional provision, to no

statute at all? The court of appeals concluded in this case

that Congress clearly would have preferred to retain Sec-

tion 43 with the legislative veto provision severed. Petition-

ers have wholly failed to show that that conclusion was

erroneous. Moreover, just last Term, this Court denied

review in another case in which it was alleged that the

observation in Gulf Oil Corp. v. Dyke, supra, that peti-

tioners challenge constituted a departure from established

severability law. See Pet. at 8, 16-17, Reply Br. at 7-9,

Energy Reserve Group, Inc. v. Department of Energy, cert.

denied, No. 84-188 (Dec. 4, 1984). There is no reason for a

different result here.

The opinion in Gulf Oil Corp. v. Dyke, supra, expressly relies on

the severability principles of Buckley and Champlin Refining Co. See

734 F.2d at 803-804.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DouGLas N. LETTER

Attorney

FEBRUARY 1986

DOJ-1986-02