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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 847

## Text

Supreme Court, U.S.

87-49 FILED

Jur 7 8
No. 87- JOSEPH F. SPANMIOL. JR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

ALASKA AIRLINES, INC., et al.,
Petitioners,
V.

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

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

WILLIAM T. COLEMAN, JR.
Counsel of Record

DONALD T’. BLISS

JAMES P. NEHF
O’MELVENY & MYERS
555 13th Street, N.W.
Washington, D.C. 20004
(202) 383-5300

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

QUESTIONS PRESENTED

In 1978, Congress passed the Airline Deregulation
Act. Section 43 thereof authorized certain protections
against employment dislocation caused by deregulation.
The protections included a hiring preference scheme under
which certain air carriers certificated as of October 24,
1978, would be required to hire, before other more quali-
fied applicants, certain former employees of their com-
petitors with whom they have had no previous employ-
ment relationship (“protected employees”). Section 43
does not require a carrier to hire its own former em-
ployees or impose any hiring duty on carriers certificated
after October 24, 1978.

As construed by the Department of Labor in its No-
vember 1983 regulations, issued almost five years after
the statutory deadline, the hiring duty even applies to
employees terminated for reasons completely unrelated to
deregulation. Therefore, the questions presented are:

(1) Whether Section 43, by imposing the hiring duty
exclusively on pre-1978 carriers that have no prior rela-
tionship with a “protected” applicant, while exempting
the applicant’s former employer as well as all post-1978
carriers, violates standards of equal protection and due
process set forth by this Court in City of Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 482 (1985) ;
Zobel v. Williams, 457 U.S. 55 (1982); and United
States Department of Agriculture v. Moreno, 413 U.S.
528 (1973), which require that statutorily imposed dis-
crimination be rationally related to a legitimate govern-
mental interest.

(2) Whether the imposition on certain air carriers,
“which have not contributed to employment dislocation
and are not seeking any government approval or benefit,
of a general duty to hire former employees of their com-

(i)

ii

petitors, with whom they have had no previous relation-
ship, violates the due process and takings clauses of the
Fifth Amendment as applied in Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1 (1976), and Connolly v. Pension
Benefit Guaranty Corp., 106 S. Ct. 1018 (1986), by im-
posing a statutory burden on specific employers that have
no connection whatsoever to the injury Congress intended
to remedy.

(3) Whether the imposition of a duty to hire employ-
ees furloughed or terminated for reasons completely un-
related to deregulation is contrary to the articulated leg-
islative purpose of protecting employees adversely af-
fected by deregulation.

(4) Whether the Department of Labor was authorized
to issue substantive regulations almost five years after
its Section 43(f) statutory authority had expired and
whether its construction of the statute to extend the
hiring duty to employees not affected by deregulation
contravenes this Court’s precedents requiring that the
scope of regulations be consistent with the design, origin
and purpose of the statute.

iii
PARTIES TO THE PROCEEDINGS

Petitioners are Alaska Airlines, Inc.; American Air-
lines, Ine.; Delta Air Lines, Inc.; The Flying Tiger Line,
Inc.; Midway Airlines, Inc.; Northwest Airlines, Inc.;
Piedmont Aviation, Inc.; Trans World Airlines, Inc.;
United Air Lines, Inc.; USAir, Inc.; and Western Air-
lines, Inc."

Respondents are William E. Brock, individually and as
Secretary of Labor (as successor in office to Raymond J.
Donovan); United States Department of Labor; the
United States of America; and the following intervenors:
Air Line Pilots Association, International; Association
of Flight Attendants; Brotherhood of Railway and Air-
line Clerks; Flight Engineers’ International Association;
International Association of Machinists and Aerospace
Workers; and Transport Workers Union of America.

1In accordance with Supreme Court Rule 28.1, the parent com-
panies, subsidiaries (except wholly owned subsidiaries) and af-
filiates of petitioners are set forth in Appendix F hereto.

TABLE OF CONTENTS OF PETITION

ie yt Bg yd | | en
PARTIES TO THE PROCEEDINGS ...............-..-.......---
TABLE OF CONTENTS OF PETITION ....................
TABLE OF CONTENTS OF APPENDIX ........00...0......
pee Be ys ty yee nen
IPR IO OE RTE scictnistcisics cimrasencenesininnvinnciuanienniascnesiiiansn
Pi ea EE

CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS INVOLVED .......0...000000000.2....

REASONS FOR GRANTING THE WRIT ........2.....

I. BY IMPOSING THE HIRING DUTY ONLY
ON AIR CARRIERS THAT HAVE HAD NO
PREVIOUS RELATIONSHIP WITH PRO-
TECTED APPLICANTS, AND BY EXEMPT-
ING OVER HALF OF THEIR COMPETITORS,
THE HIRING PREFERENCE SCHEME VIO-
LATES PRINCIPLES OF THE FIFTH
AMENDMENT SET FORTH BY THIS
RPE, | aesitsnsninieeenstlesscuenieesivctsindicsininlecammmabtalibianeens

A. The Means Chosen To Implement The Hir-
ing Preference Violate The Takings Clause
And Equal Protection Concepts Embodied In
TEOO FUCC ATOMIC onsen nnccenescsceeen so

(v)

vi

TABLE OF CONTENTS OF PETITION—Continued
Page

B. The Duty To Hire Program Is Not Ra-
tionally Related To The Articulated Legisla-
ARITA a ep Nn aC 16

C. The Hiring Preference Scheme Is Not Ra-
tionally Related To Any Legitimate Govern-
RERUN AIS cee ae 21

II. DOL’S INTERPRETATION THAT SECTION
43 IMPOSES A DUTY TO HIRE EMPLOY-
EES TERMINATED FOR REASONS UN-
RELATED TO DEREGULATION CONTRA-
VENES THIS COURT’S PRECEDENT RE-
QUIRING THAT REGULATIONS BE CON-
SISTENT WITH THE DESIGN, ORIGIN AND
PURPOSE OF A STATUTE ........ 23

oe copia spat TTR TCT EE 27

vii
TABLE OF CONTENTS OF APPENDIX

APPENDIX A—Opinion and Judgment of the United
States Court of Appeals for the Dis-
trict of Columbia Circuit in Alaska
Airlines, Inc. v.. Brock, Nos. 86-5042,
86-5085 & 86-5719 (D.C. Cir. Jan. 30,
BOI sicccsetebhtnctinidaniigintsensomnpemetnimmsisonn

APPENDIX B—Opinion of the United States District
Court for the District of Columbia in
Alaska Airlines, Inc. v. Brock, 632 F.
Bupe. 176 (0.0. IGS} ...................

APPENDIX C—Order of the United States Court of
Appeals for the District of Columbia
Circuit denying appellants’ petition
for rehearing in Alaska Airlines, Inc.
v. Brock, Nos. 86-5042, 86-5085 &
86-5719 (D.C. Cir. Mar. 9, 1987)...

APPENDIX D—Order of the United States Court of
Appeals for the District of Columbia
Circuit denying appellants’ sugges-
tion for rehearing en banc in Alaska
Airlines, Inc. v. Brock, Nos. 86-5042,
86-5085 & 86-5719 (D.C. Cir. Mar. 9,
|) EAI. BUG) Ce Pea earner eNOS

APPENDIX E—Constitutional Provisions, Statutes
and Regulations Involved ....................

APPENDIX F—Petitioners’ Parent Companies, Sub-
sidiaries (Except Wholly Owned Sub-
sidiaries) and Affiliates, Pursuant to
Supreme Court Rule 28.1 ....................

Page

la

6a

19a

20a

viii

TABLE OF AUTHORITIES

CASES Page
Alaska Airlines, Inc. v. Brock, 632 F. Supp. 178
(D.D.C. 1986) .......... Fey TP TN ae Sec N CC ocr EN 6
Alaska Airlines, Inc. v. Brock, Nos. 86-5042, 86-
5085 & 86-5719 (D.C. Cir. Jan. 30, 1987)........ 6-7
Alaska Airlines, Inc. v. Brock, 107 S. Ct. 1476
2. | CS ee ee aoa « 2 0,6
Alaska Airlines, Inc. v. Brock, 106 S. Ct. 1259
(1986) (order granting certiorari) ..................... 6
Alaska Airlines, Inc. v. Donovan, 594 F. Supp. 92
8 SRE, eR Ones a a 6
Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550
Ss AI. III ci tianitaersncicl nseahsininveoanouicniialepltimabniniatiabenns 6
Armstrong v. United States, 364 U.S. 40 (1960).... 11
City of Cleburne v. Cleburne Living Center, Inc.,
ee I Saar ceetenticdcensncenseneonntccniincinncna i, 9, 23
Cleveland Board of Education v. LaFleur, 414
ns i iis tichesacctnphieidiainiscipihipytiaathindiniomnenctapteoni 20
Connolly v. Pension Benefit Guaranty Corp., 106
i a a ctalaindn otetioont ii, 11
FBI v. Abramson, 456 U.S. 615 (1982) 22000... 24
Greene v. McElroy, 360 U.S. 474 (1959) .....00......... 27

Harriss v. Pan American World Airways, Inc.,

437 F. Supp. 413 (N.D. Cal. 1977), aff’d in part

and rev'd in part, 649 F.2d 670 (9th Cir. 1980).. 21
Immigration and Naturalization Service v.

Chadha, 462 U.S. 919 (1988) 2.0002. 3
In re Application of Employees of Aeroamerica,
~ Dkt. No. 38,885 (CAB Apr. 7, 1983), CAB

Order 83-4-36 ..................--- eliehaicusia tienda 19
Keystone Bituminous Coal Ass’n v. DeBenedictis,

Pe Fe I ED becicecseemsernsesscccneincoswaeveces 11
Massachusetts Board of Retirement v. Murgia,

errr 21
McGinnis v. Royster, 410 U.S. 263 (1973) _........... 21
Metropolitan Life Insurance Co. v. Ward, 470

Wii Me RD eric se cdenedcisirvinestinineononinidistieniascsomiaiel 9, 14, 23

Murnane v. American Airlines, Inc., 667 F.2d 98
(D.C. Cir. 1981), cert. denied, 456 U.S. 915
: EINE Ie ce TE RT AON 21

ix

TABLE OF AUTHORITIES—Continued

. Page
NLRB v. Brown, 380 U.S. 278 (1965) ...........-.------- 24
NLRB v. Catholic Bishops of Chicago, 440 U.S.

490 (1979) iiicedpideibilihaiah sale Siaiescaadapaidmaidndanacsnibuae 27
NLRB v. Lion Oil Co., 352 U.S. 282 (1957)........ 24
National Muffler Dealers Association, Inc. v.

United States, 440 U.S. 472 (1979) .................-.-+ 24
National Railroad Passenger Corp. v. Atchison,

Topeka & Santa Fe Railway, 470 U.S. 451

CI isnccctcsisnsnineciningiptesibienahaabbiganmmeaeanedialaaaiebanaiaizie.is 13
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

ETI: nspscsinsisnissinnscogntcnegieseacl aincpcnhcsiabecinseiimnactansalaiians 11
Railroad Retirement Board v. Alton Railroad, 295

Re I vcnissinectenscicinacidscleteiaes dataipamainisnitnaiiaedn 13
Rose v. Lundy, 455 U.S. 509 (1982) ......................- 24
San Antonio School District v. Rodriguez, 411

eee i OE eennlbcvidsscctibbbnadeineeisaidaiodiaiinie 17
South Dakota v. Dole, 55 U.S.L.W. 4971 (U.S.

I Fa ED ctcdindiniscitds apeacgntananiindidaiteseins 20
Spurlock v. United Airlines, Inc., 475 F.2d 216

I ei I ice Siena tesiiitahaeinineiiiation 21
Stafford v. Briggs, 444 U.S. 527 (1980) Silanliiitih acl 24
United States v. Lowden, 308 U.S. 225 (1939) ......9-10, 12
United States v. Vogel Fertilizer Co., 455 U.S.

i RRR eee ee ere em 23-24
United States Department of Agriculture v.

Moreno, 418 U.S. 528 (1978).........................-- i, 9, 33. 2
United States Department of Agriculture v.

Murry, 418 UB. GOR C1GTS) nc.c en. ncnccccccvcccsensenees 20
United States Railroad Retirement Board v.

PGR, GE Ti BO CD reas pieteinciniccriene 9,21
Usery v. Turner Elkhorn Mining Co., 428 U.S.

Ne CT vcvieticliptidrteentieen ii, 12-18, 14, 15, 16, 18, 19, 20, 22
Vlandis v. Kline, 412 U.S. 441 (1978) ...0..220- 20
Volkswagenwerk Akttengesellschaft v. Federal

Maritime Commission, 390 U.S. 261 (1968) ....... 24
Zobel v. Williams, 457 U.S. 55 (1982) .......2....2222.... i, 16, 21

CONSTITUTIONAL AND STATUTORY
PROVISIONS
U.S. Const. amend. V 2

x

TABLE OF AUTHORITIES—Continued

Page
Airline Deregulation Act of 1978, Pub. L. No.
95-504, 92 Stat. 1705 (codified in scattered sec-

tions of 49 U.S.C. app. (1982) ) .........-------------+++ passim
SD TTT. BI, BT accents siscccectncen since 2
49 U.S. ape. § 1802S) (8) -—-......-.................... 18
49 U.S.C. Gap. S IBZ) (4) ~~~ --.-ncccccreecocsecoioecone 15, 18
BD a GI eID sic erenieessctcescesscaccscnsce 21
BD Eis Ge TE ED ccvicsnnevncsnccssnvenncansecrnvopmne 21
ae I tii cinctiacinsnrerescccsnsaterenneriintind passim
49 UBC. GH. 8 DBCS) as .-22<22nncecccceresennccsevessse2 3
BD Tae Ge SED enscnetiiniresvessnesccceeeseseecoes 3
Pope Coe S|. EG | Beene 3
40 U.S.C. ape. § 1652 (e) ................................ ona 3
Pee oe |, ree aoe neree 3
MD VBA BS BD CD) onnncccrececessceccccenceness 4
es Ae ED hrc creincnscccenscecssenesssncmese 3
BD UR Ts BBE CLD nana. nase cnvneecnncccccsscs 18
49 U.S.C. app. § 1662(f) (2) ........2......-2..20000000000+-- 18
£0 UB. GD. S BBGE GE) (1) «.....-.20i..-.cccccceccscesses 3

Bus Regulatory Reform Act of 1982, Pub. L. No.
97-261, 96 Stat. 1102 (codified at 49 U.S.C.
BS _, 5 Peeve nna nem 14

Federal Aviation Act of 1958, Pub. L. No. 85-726,

72 Stat. 731 (codified as amended in scattered
sections of 49 U.S.C. app. (1982) )

PgR eS | Cem e are 21
Interstate Commerce Act, 49 U.S.C. § 11347
I chesleinadcscnndisbiidiclsstindscelivescedeniisaeisnitiasdibeadeinastiesiabaachigib 25
Rail Passenger Service Act, 45 U.S.C. § 565(b)
ORT cataiaickisculinsiniallalnaihiectinlatpinatinitebbietivinndaidniintinasacstinnianes 25
, BR Fee GT Ee — , SR eeenn nnn eC EN 2
LEGISLATIVE AND EXECUTIVE MATERIALS
H.R. 12611, 95th Cong., 2d Sess. (1978) ......2200.0.0200... 17, 24
S. 2493, 95th Cong., 2d Sess. (1978) .............0.0...2.0..0. 17, 25

H.R. Rep. No. 1779, 95th Cong., 2d Sess. (1978).. 25
S. Rep. No. 631, 95th Cong., 2d Sess. (1978) ....2-3, 10, 14,
15, 17, 18, 24

xi

TABLE OF AUTHORITIES—Continued
Page

Airline Mergers and Acquisitions: The Question
of Labor Protection: Hearing Before the Sub-
comm. on Aviation of the Senate Comm. on
Commerce, Science and Transportation, 99th
Cong., lst Sess. (1985) 15-16
Regulatory Reform in Air Transportction: Hear-
ings Before the Subcomm. on Aviation of the
Senate Comm. on Commerce, Science and Trans-

portation, 95th Cong., lst Sess. (1977) .............. 10, 14
124 Cong. Rec. S5876-83 (daily ed. Apr. 19,
SETTI : <cisehnnisinpsacielapieieilienanaananiaenniiatniibadseacineaias 24, 25

124 Cong. Rec. H13,445-47 (daily ed. Oct. 14,
1978)

MAES Eeer Boer Osteen ace Sok WOR nee REE Mon oe mOnS 26
Jefferson’s Manual and Rules of the House of Rep-

resentatives, H.R. Doc. No. 277, 98th Cong., 2d

Be eiscesie Lr ccceshicahcincnatescnsllanictabbiandsniigabctimelanbianioe 26
Senate Manual, S. Doc. No. 1, 98th Cong., 2d Sess.

NN Sadia ciachth dacieneemiliseioaria hotertieiidalaseathiaseseossemnanianctaniaes 26
48 Fed. Reg. 52,854 (1983) 4
50 Fed. Reg. 53,094 (1985)................ sasseeee-ay 4, 5, 26

MISCELLANEOUS

Cappelli and Harris, Airline Union Concessions
in the Wake of Deregulation, 108 Monthly Lab.
) ae ae | ge} ne 16
Comments of the Department of Transportation,
Sept. 3, 1982, in In re Application of Employ-
ees of Aeroamerica, Dkt. No. 38,885 (CAB Apr.
«eee o wie 19

IN THE
Supreme Court of the United States

OCTOBER TERM, 1987
No. 87-

ALASKA AIRLINES, INC., et al.,

¢ Petitioners,

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

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE “ISTRICT OF COLUMBIA CIRCUIT

Alaska Airlines, Inc. and ten other airlines hereby peti-
tion for a writ of certiorari to the United States Court
of Appeals for the District of Columbia Circuit in this
case.

OPINIONS BELOW

The judgment and the memorandum of the court of
appeals affirming the district court in part, reversing the
district court in part and vacating and remanding the
district court in part is reprinted as Appendix (“App.’’)
A (la).1. The opinion of the district court is reported
at 632 F. Supp. 178 (D.D.C. 1986), and is reprinted as
App. B (6a).

JURISDICTION

The opinion and judgment of the court of appeals was
entered on January 30, 1987. The court of appeals de-
nied petitioners’ petition for rehearing and suggestion
for rehearing en bane on March 9, 1987. App. C (19a);
App. D (20a). On May 27, 1987, the Chief Justice
signed an order extending petitioners’ time for filing a
petition for a writ of certiorari to July 7, 1987. This

1 Citations to material printed in the Appendix appear as “——a.”

9
od

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

CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS INVOLVED

United States Constitution, Fifth Amendment.

Section 43 of the Airline Deregulation Act of 1978,
49 U.S.C. app. § 1552 (1982).

Department of Labor regulations under Section 43 of
the Airline Deregulation Act of 1978, 50 Fed. Reg.
53,094 (1985).

The constitutional provisions, statutes and regulations
involved are reprinted in App. E (21a).

STATEMENT

On March 25, 1987, this Court decided Alaska Airlines,
Inc. v. Brock, 107 S. Ct. 1476 (1987), holding that the
legislative veto in Section 43 of the Airline Deregulation
Act (“Deregulation Act”) is severable from the remain-
ing provisions of that section. A threshold issue in this
case—whether Section 43 is unconstitutional in its en-
tirety—has thus been resolved. This petition addresses
petitioners’ specific constitutional and statutory chal-
lenges to the substance of the duty-to-hire provisions of
Section 43 and the Department of Labor’s (“DOL”)
regulations implementing those provisions.

A. Nature of the Case.

Petitioners are eleven airlines certificated by the Civil
Aeronautics Board (“CAB”) prior to October 24, 1978.?
On that date Congress enacted the Deregulation Act to
phase out economic regulation of domestic aviation, to en-
courage the entry of new air carriers, and to foster com-
petition on routes and fares. See 49 U.S.C. app. § 1802.
As protection against the “theoretical possibility” that
some employees might lose their jobs as a result of de-
regulation, Congress authorized labor protections in Sec-
tion 43 of the Deregulation Act. S. Rep. No. 631, 95th

2 One of the appellants below, Ozark Airlines, Inc., has merged
into petitioner TWA.

3

Cong., 2d Sess. 113 (1978) (“Senate Report’). Section
43 established an Employee Protection Program (“EPP”’)
that, for a period of ten years, authorized certain benefits
for “protected employees” (i.e., employees who as of Oc-
tober 24, 1978 had at least four years of employment
with a CAB-certificated interstate airline). Section 43
(h) (1); 49 U.S.C. app. § 1552(h) (1) (1982).

The EPP was to be one program with two interrelated
parts: first, government assistance payments to certain
“protected employees,” * and, second, to reduce the demand
on federal funds, a hiring preference under which certain
air carriers would have a duty to hire “protected em-
ployees” terminated or furloughed by competing airlines.
Section 43(d); 49 U.S.C. app. § 1552(d). Protected ap-
plicants must meet a hiring carrier’s minimum job quali-
fications. Congress expressly required DOL to promul-
gate regulations implementing the EPP by April 24, 1979,
six months after enactment. The regulations also were
subject to an elaborate two stage congressional review
process and a legislative veto.* Section 43(f); 49 U.S.C.
app. § 1552(f).

On November 22, 1983, almost five years after the
statutory deadline, DOL published final regulations ad-

3If an air carrier experienced a severe work force contraction
or bankruptcy as a result of the Deregulation Act, its furloughed
or terminated “protected employees” were entitled to monthly as-
sistance payments and other monetary benefits from the federal
government. See Section 43(a), (b), (c); 49 U.S.C. app.
§ 1552(a), (b), (c). DOL was to publish guidelines establishing
the amount of assistance payments for various employment cate-
gories. 49 U.S.C. app. § 1552(b) (1).

4 Proposed regulations were to be submitted to the aviation
committees of each House for thirty legislative days, and final
regulations were to be submitted to each House for sixty legisla-
tive days, during which period they were subject to a one-House
veto. These provisions had little impact, however, since the pro-
posed regulations at issue were not submitted to Congress until
after legislative veto provisions were declared unconstitutional in
Immigration and Naturalization Service v. Chadha, 462 U.S. 919
(1983).

4

dressing only the duty to hire portions of the EPP. 48
Fed. Reg. 52,854 (1983). Guidelines establishing the gov-
ernment compensation aspect of the program have never
been issued. The duty to hire regulations were later re-
issued with minor changes and initially became effective
on January 27, 1986. 50 Fed. Reg. 53,094 (1985).

As specified in Section 43, DOL’s regulations imposed
the hiring duty only on carriers certificated prior to
October 24, 1978 (“covered carriers”). By the time the
regulations were promulgated, however, less than one-
half of the certificated air carriers then operating were
subject to the hiring duty. For the most part, these
were the larger carriers, although much of the hiring
was being done by their new competitors, which the stat-
ute exempts from the hiring requirements.’ Significantly,
although Section 43 permits covered carriers to recall
first their own furloughed employees, it requires covered
carriers to grant hiring preferences only to employees
furloughed by other airlines. See 49 U.S.C. app. § 1552
(d) (1) (granting a protected employee furloughed by an
air carrier a hiring right at “any other air carrier,”
which “shall have a duty to hire such a person’; hiring
carrier first “may recall” its own furloughed employees)
(emphasis added). Thus, the hiring duty is imposed ex-
clusively on airlines that have had no previous employ-
ment relationship whatsoever with the “protected” appli-
cants.

In addition, although the undisputed purpose of Section
43 was to protect employees adversely affected by dereg-
ulation, DOL created a preferred class of “designated
employees” which includes employees terminated for rea-
sons totally unrelated to deregulation, even if they are

5 Today, as a result of further restructuring and consolidation
in the industry, the hiring duty is imposed on some air carriers but
not others, and on some airline divisions or subsidiaries but not
others under the same management. For example, American Air-
lines is covered but its sister subsidiary, AirCal, is not. US<Air is
covered, but its sister subsidiary, PSA, is not.

ny

5

working for another airline when they apply. See 50 Fed.
Reg. 53,094, 53,102.

In the legislative veto case last Term, this Court stated
that the DOL regulations are “ancillary” in nature.
Alaska Airlines, 107 S. Ct. at 1482-83. But when the
regulations became effective more than seven years after
the Deregulation Act, their impact was far more than
“ancillary.” They not only imposed a substantial bur-
den on one segment of the industry at a time of intense
competition but they created new obligations not speci-
fied in the statute, and required the retroactive identifi-
cation and notification of “designated employees,” provid-
ing them with incentives to assert Section 43 hiring
preferences.®

6 The regulations, inter alia,

a. create a nationwide hiring pool of “designated employees”
who have been terminated or furloughed since 1978 for any
reason other than cause and thus are eligible to exercise hiring
preferences at any covered carrier.

b. impose a mandatory obligation to hire minimally qualified
“designated employees” for any job vacancies (e.g., pilots,
accountants, secretaries) over other better qualified job ap-
plicants, see 50 Fed. Reg. 53,102-03 (§ 220.11), even “des-
ignated employees” who have been furloughed because an
airline ceases operating during a prolonged strike. See 50 Fed.
Reg. 53,102 (§ 220.10).

c. require covered carriers to wait at least thirty days before
filling any job vacancy with an applicant who is not a “desig-
nated employee,” regardless of whether any designated em-
ployee has applied or is available and without any exception
for safety-related positions that must be filled immediately.
See 50 Fed. Reg. 53,103 (§ 220.24).

d. expressly prohibit covered carriers from applying to such
“designated employees” safety-related initial hiring age re-
quirements with which all other applicants must comply. See
id. (§ 220.21(a) (1)).

e. override most affirmative action and other legal hiring
duties imposed on the airlines by federal statute. See 50 Fed.
Reg. 53,102-04 (§§ 220.10, .11, .20, .23(j), .29).

f. establish a variety of extensive retroactive notification and

reporting requirements. See 50 Fed. Reg. 53,103-04 (§§ 220.22,
.28, .25, .27, .28).

6
B. Proceedings Below.

In February- 1984, petitioners brought this action
against DOL in the district court and on March 9, 1984,
filed a motion for summary judgment. DOL and several
labor union intervenors” then filed cross-motions for sum-
mary disposition. On May 18, 1984, the district court
(Judge Gesell) declared Section 43 unconstitutional in its
entirety because it contained an inseverable legislative
veto provision. Alaska Airlines, Inc. v. Donovan, 594
F. Supp. 92 (D.D.C. 1984). But on July 16, 1985, the
United States Court of Appeals for the District of Colum-
bia Circuit reversed, Alaska Airlines, Inc. v. Donovan,
766 F.2d 1550 (D.C. Cir. 1985), remanding the case to
the district court for consideration of the remaining issues.

On March 3, 1986, certiorari was granted on the legis-
lative veto issue, the only issue ripe for Supreme Court
review. Alaska Airlines, Inc. v. Brock, 106 S. Ct. 1259
(1986). On March 25, 1987, this Court held that the
unconstitutional legislative veto provision in Section 43 is
severable from the rest of the EPP. Alaska Airlines, 107
S. Ct. at 1480.

On remand, the district court decided the remaining
issues on January 22, 1986, invalidating one safety-
related provision, but otherwise upholding the statute and
the regulations. Alaska Airlines, Inc. v. Brock, 682
F. Supp. 178, 184 (D.D.C. 1986). On January 30, 1987,
the United States Court of Appeals for the District of
Columbia Circuit upheld Section 48 and the DOL regu-
lations in their entirety.* Alaska Airlines, Inc. v. Brock,

7Intervenors are Air Line Pilots Association, International;
Association of Flight Attendants; Brotherhood of Railway and
Airline Cterks; Flight Engineers’ International Association; In-
ternational Association of Machinists and Aerospace Workers;
and Transport Workers Union of America.

8 The court below affirmed the district court in all but two re-
spects. In a brief memorandum opinion, the court reversed the
district court’s decision invalidating and remanding one safety-
related regulation which prohibited airlines from applying initial
hiring age policies to pilot and flight crew applicants, and also

en

7

Nos. 86-5042, 86-5085, & 86-5719 (D.C. Cir. Jan. 30,
1987). The airlines’ petition for rehearing and sugges-
tion for rehearing en bane were denied on March 9,
1987.°

REASONS FOR GRANTING THE WRIT

As construed by DOL, Section 43’s grant of broad hir-
ing preferences to a limited class of airline employees and
the imposition on certain airlines, but not others, of a
duty to hire the former employees of their competitors
raises fundamental questions of constitutional law and
statutory interpretation.

The means chosen by Congress for allocating the hir-
ing burden violate principles of equal protection and just
compensation for a government taking embodied in the
Fifth Amendment. Section 43 imposes the burden eaclu-
sively on carriers that have no previous relationship
whatsoever with the protected applicants and dispropor-
tionately on carriers that have avoided layoffs and there-
fore have not contributed to any employment dislocation.
The hiring burden is not imposed as a condition of any
government approval or benefit, and it is not even im-
posed on the former air carrier employer of the “protected
employee.” Nor is the burden imposed on any of the
post-1978 carriers, even though they have created many
new jobs and, as fierce competitors of the covered car-
riers, have contributed to employment dislocation. Par-
ticularly since the hiring duty is not limited to employees
affected by deregulation, but has been expanded’ by DOL
to include employees furloughed as a result of recent,
intervening events, such as the air traffic controllers’
strike, there is no rational basis for the substantial com-

vacated a portion of the district court’s decision which attempted
to reconcile a conflict between the airlines’ equal employment op-
portunity requirements and their duty to hire.

® The Chief Justice granted an extension until J uly 7, 1987, in
which to file a petition for a writ of certiorari.

8

petitive disadvantage created by Section 43’s discrimina-
tion against certain pre-1978 carriers. Moreover, impos-
ing the hiring burden exclusively on these carriers with-
out prior notice, and thus relieving the responsible carrier
and the government of their financial obligations vio-
lates the takings clause because the hiring carrier incurs
substantial costs that are not related in any way to its
obligation to its own former employees. Nor does the
hiring carrier bear any responsibility for the employee’s
dislocation or receive any benefit from the government.

Further, the hiring preference scheme is not a rational
means of achieving Congress’ articulated purpose—to
protect employees adversely affected by deregulation.
Nor is it rationally related to any legitimate governmen-
tal interest because (1) by benefitting primarily employ-
ees who were furloughed for reasons unrelated to deregu-
lation (even those currently employed at other airlines)
the hiring scheme frustrates the legislative objective
by making it more difficult for employees adversely af-
fected by deregulation to find jobs; and (2) the estab-
lishment of a generalized, industry-wide regulatory hir-
ing program, creating a preferential class of employees
based solely on seniority, is no more reasonable than
distinctions based on past residence, sex or economic
status and is contrary to the deregulatory purpose of the
statute.

The court below failed to address these issues and to
provide a reasoned basis for its decision consistent with
this Court’s standards for due process and equal protec-
tion analysis. These issues are important to the airlines,
affecting the heart of their operations, i.e., safety, com-
petition, affirmative action and other employment policies,
and they warrant full review by this Court.

TF

9

I. BY IMPOSING THE HIRING DUTY ONLY ON AIR
CARRIERS THAT HAVE HAD NO PREVIOUS RE-
LATIONSHIP WITH PROTECTED APPLICANTS,
AND BY EXEMPTING OVER HALF OF THEIR
COMPETITORS, THE HIRING PREFERENCE
SCHEME VIOLATES PRINCIPLES OF THE FIFTH
AMENDMENT SET FORTH BY THIS COURT.

Petitioners challenge the constitutionality of both the

duty to hire provisions of Section 43(d) and DOL’s im-
plementing regulations. Under due process requirements,
governmental discrimination among similarly situated
persons is invalid unless it is “rationally related to a
legitimate governmental interest.” United States Depart-
ment of Agriculture v. Moreno, 413 U.S. 528, 533 (1973) ;
City of Cleburne v. Cleburne Living Center, Inc., 473
U.S. 482, 440 (1985). Petitioners recognize that since
this case does not involve a constitutionally suspect clas-
sification, the standard of judicial review is rigorous. But
the legislature does not have carte blanche authority.

This Court does not automatically defer to any con-
ceivable public interest articulated by the government or
its counsel. Cleburne, 473 U.S. at 447-50; United States
Railroad Retirement Board v. Fritz, 449 U.S. 166, 188
(1980) (Brennan, J., dissenting). By accepting sum-
marily the government’s post hoc rationale without rea-
soned analysis, the court below failed to recognize that
in “practical operation” the means chosen by Congress
are not rationally related to a legitimate governmental
interest. See Moreno, 413 U.S. at 588; Cleburne, 473
U.S. at 446-47; Metropolitan Life Insurance Co. v. Ward,
470 U.S. 869, 875, 878-79 (1985).

A. The Means Chosen To Implement The Hiring Pref-
erence Violate The Takings Clause And Equal Pro-
tection Concepts Embodied In The Fifth Amend-
ment.

The duty to hire program is a complete departure from
the statutory labor protections previously upheld by this
Court. See, e.g., United States v. Lowden, 308 U.S. 225
(1939) (upholding against constitutional challenge labor

10

protections for employees of a specific carrier which are
imposed on that carrier as a condition of government ap-
proval of an action that may adversely affect its employ-
ees). Here, an entire class of carriers (i.e., the cov-
ered carriers) has a duty to hire employees with whom
the carriers have had no previous employment relation-
ship. These obligations are not triggered by any govern-
ment approval or carrier action authorized by the gov-
ernment; they are not connected to any regulated event.
Covered carriers are required to grant a hiring prefer-
ence to employees terminated or furloughed by their com-
petitors for any reason other than cause (e.g., a competi-
tor’s mismanagement, change in corporate strategy, labor
dispute or cost reduction program) .2°

The primary burden of the hiring program is on car-
riers that have sought to maintain employment stability
during the transition to deregulation (and thus have
no furloughed employees of their own to recall). After
hiring and training “protected employees,” in place of
other more qualified applicants whom they must reject,
the covered carriers then face the reality that “protected
employees” can be recalled by their former employers
(and indeed they have an incentive to return to former
jobs where they have accrued seniority and higher com-
pensation), leaving the covered carriers without needed
pilots, mechanics, and other skilled personnel.

10In Section 43, Congress was proposing for the first time an
unemployment insurance plan coupled with a system of enormous
employee re-hire rights that addressed not just “individual firms or
individual employees, but rather, the general regulatory structure
[encompassing] all of the areas and all the workers in the indus-
try.” Regulatory Reform in Air Transportation: Hearings Before
the Subcomm. on Aviation of the Senate Comm. on Commerce,
Science, Transportation, 95th Cong., 1st Sess. 709 (1977) (“Senate
Hearings”) (statement of Robert E. Ginther, Committee staff
member). See also Senate Report at 208 (Additional Views of
Sen. Zorinsky) (characterizing Section 438 as “new and without
precedent’).

11

By imposing the hiring duty on carriers with no prior
relationship with the protected employee, and no respon-
sibility for the employment dislocation, Section 43 trans-
fers to those carriers obligations that should have been
incurred by their competitors who were responsible for
the employees’ termination. It further relieves the govern-
ment of its financial assistance obligations, mandated by
Section 43 but never implemented. The hiring duty im-
poses actual, measurable costs on the hiring carrier which
include the payment of salaries and benefits to employees
who are less qualified and able than other applicants who
must be rejected and the cost of training and retraining
that can be amortized over fewer years or lost altogether
if the protected employee returns to his former employer.**
Imposition of these costs on carriers which bear no re-
sponsibility for the dislocation, and had no notice that
they would assume such obligations by virtue of their
participation in the airline industry, constitutes a taking
of property without just compensation. Connolly v. Pen-
sion Benefit Guaranty Corp., 106 S. Ct. 1018, 1026-2"
(1986) (upholding against “taking” challenge the with-
drawal liability provisions of pension law because lia-
bility “directly depends on the relationship between the
employer and the plan to which he made contributions”
and because employers had “more than sufficient no-
tice’); Armstrong v. United States, 364 U.S. 40, 49
(1960) (unlawful taking if regulation “forces some peo-
ple alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole’).
See also Keystone Bituminous Coal Ass’n v. DeBenedictis,
107 S. Ct. 1232, 1258-59 (1987) (Rehnquist, C.J., dis-
senting) ; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
415 (1922).

The failure of the EPP to apportion the costs of the
duty to hire program reasonably and equitably among the

11 See Affidavit of Dolores E. Wallace, Sr. Director, Selection
and Field Personnel Administration for American Airlines, ac-
companying motion for summary judgment below, at § 28 (initial
pilot training exceeds $12,000 per trainee).

cna aii aie ai

12

air carriers in relation to their responsibility to the ‘“pro-
tected employees” clearly distinguishes this case from in-
stances in which Congress has required a business to
assume obligations relating to its own employees, or to the
employees of a company it acquires. See United States
v. Lowden, 308 U.S. at 240 (railroad required to pay
part of the benefit it received to compensate the “loss to
employees occasioned by the exercise of the privilege’).

In its summary disposition of these issues, the court
below cites Usery v. Turner Elkhorn Mining Co., 428
U.S. 1 (1976), without any explanation. App. A (4a).
That decision, however, demonstrates why Section 43
fails the rational basis test. In Elkhorn, this Court up-
held a statute that imposed on coal mine operators cer-
tain costs for black lung disease (pneumoconiosis) of
their own former employees. The Court concluded that
“the Due Process Clause poses no bar to requiring an
operator to provide compensation for a former employee’s
death or disability due to pneumoconiosis arising out of
employment in its mines... .” Zd. at 19-20. Under such
circumstances, the statute “‘serves to spread the costs in
a rational manner—by allocating to the operator an ac-
tual cost of his business, the avoidance of which might
be thought to have enlarged the operator’s profits.” Id.
at 24-25,

12 The Court in Elkhorn was careful to show a rational connection
between burdens placed on an operator and his responsibility to the
employees. One provision of the statute created an “irrebuttable
presumption” that a former employee died of pneumoconiosis if
there was clinical evidence of the disease, regardless of the actual
cause of death. The Court noted that “[t]he damage resulting
from a miner’s death that is due to causes other than the opera-
tor’s conduct can hardly be termed a ‘cost’ of the operator’s busi-
ness.” Jd. at 25. But the Court found that the Act also intended
to compensate for injury to health and thus this statutory provi- -
sion “authorizes compensation for injury attributable to the opera-
tor’s business.” Jd. at 25. The Court also was concerned that an-
other statutory provision appeared “to preclude an operator’s
defense that the disease did pn vt arise out of employment in the
particular mines for which it was responsible.” Jd. at 35. The
district court had held that provision unconstitutional, but this
Court avoided the constitutional question by construing the provi-

13

Here, in contrast, the hiring burden is imposed exclu-
sively on companies with no previous relationship to the
protected employee whatsoever, and the one carrier with
a specific connection to the former employee, which was
responsible for his termination, escapes the burden al-
together. Such a scheme offends equal protection stand-
ards embodied in the due process clause. Cf. National
Railroad Passenger Corp. v. Atchison, Topeka & Santa Fe
Railway, 470 U.S. 451, 477-78 (1985) (cost-sharing
scheme allocates to railroad only the costs attributable to
its present and former employees).

Further, the EPP discriminates between the pre-1978
and post-1978 carriers even though they compete directly
with each other to provide airline service to the public.

sion narrowly, determining that Congress did not intend that it
apply to private operators. Jd.

13 The circumstances in this case are far more egregious than
in Ratiroad Retirement Board v. Alton Railroad, 295 U.S. 330
(1935). In Alton Railroad, the Court invalidated, on due process
grounds, a provision in the Railroad Retirement Act providing for
employer-financed pensions for former employees who, although not
in the employ at the time of enactment, had been so employed
within a year prior to passage. The Court found it “arbitrary in
the last degree” to require carriers to provide benefits for em-
ployees who may have resigned or been dismissed for any reason
whatsoever, and found this requirement unrelated to the legislative
goal of increasing efficiency in the railroads. Id. at 349. The
Court in Alton also found unconstitutional a requirement that if
a former employee of any carrier is hired by another carrier, a
railroad would be required to pay his pension based on his service
with both railroads. The Court stated:

The provision is not only retroactive in that it resurrects for
new burdens transactions long since past and closed; but as
to some of the railroad companies it constitutes a naked ap-
propriation of private property upon the basis of transactions
with which the owners of the property were never connected.
Id. at 349-50. This Court in Elkhorn was careful to distinguish
Alton Railroad, pointing out that the black lung benefits were not
simply provisions “to meet [a] generalized need for funds,” but
were intended to meet a specific need of a former employee created
by the conditions under which he labored, which was a measurable
cost of his former employer’s doing business. 428 U.S. at 19.

14

The imposition of a hiring duty on only one part of the
industry constitutes unfair discrimination because it is
not rationally designed to achieve a legitimate govern-
mental purpose. See Metropolitan Life Insurance Co. v.
Ward, 470 U.S. 869 (1985). Without analysis, the court
below accepted the government’s justification for this dis-
crimination (1.e., that the pre-deregulation carriers should
bear the entire burden of providing for dislocations caused
by deregulation), App. A (4a), even though Congress
said that the “public” and not a particular segment of
it should bear the burden, see Senate Report at 114, and
mandated a government financial assistance program
that DOL has never implemented. Cf. Elkhorn, 428 U.S.
at 40 n.5 (Powell, J., concurring).

The implication of the court below is that covered air
earriers benefitted from the regulatory era and therefore
should bear this newly created and exclusive burden of
employment dislocations caused by deregulation. This
assumption is not supported by the legislative history or
experience. Congress recognized that the regulatory era
did not result in substantial benefits to regulated air car-
riers. See Senate Report at 4. The industry earned, on
average, a low rate of return compared to nonregulated
industries, and at the time of deregulation air carriers
were burdened with high costs and inefficiencies that re-
sulted from the highly regulated structure.* Nor does
the hiring preference scheme place the hiring burden on
carriers that have contributed to employment dislocation.
If Congress had really intended to impose the burden of
employment dislocation on the responsible carriers, it
would have required carriers to hire back their own
former employees rather than_those of their competi-
tors.“ And it would not have devised a scheme that

14 See Senate Hearings at 306-11 (prepared statement of James
C. Miller, III) (estimating that the annual cost of regulation-
imposed constraints on carriers was about $1 billion per year).

15In the Bus Regulatory Reform Act of 1982, Pub. L. No. 97-
261, §27, 96 Stat. 1102, 1126 (codified at 49 U.S.C. § 10935 note
(1982) ), Congress required companies to hire back their own

hiesennieheeenaemnnieaiaieiniatiaiataaniatittiaeE.

15

allocated the burden disproportionately to carriers that
have maintained employment stability. Nor would it
have exempted the new entrants which have caused much
of the dislocation and created many of the new jobs. See
Elkhorn, 428 U.S. at 43-44 (Powell, J., concurring.) *®

This discriminatory hiring preference program has had
anomalous consequences. For example, Carriers A and B
competed on a particular route before the Deregulation
Act. As a result of deregulation, a low cost, low fare
new Carrier C.enters the market forcing Carrier A to
abandon the route and lay-off employees. Under these
circumstances, Carrier C has no hiring obligation with
respect to Carrier A’s employees, nor does Carrier A.
Only Carrier B has a Section 43 duty to hire Carrier A’s
former employees. By imposing the hiring duty on
only one segment of the industry the EPP creates a com-
petitive handicap which is inconsistent with the primary
purpose of the Deregulation Act to foster full and fair
competition among air carriers on an even handed
basis..7 See 49 U.S.C. app. § 1802(a) (4); Senate Re-
port at 1-5.

former employees and only to consider the former employees of
their competitors.

16 The classification scheme here does not even comport with the
rationale the government has devised in support of it. Midway
Airlines, for example, is a covered carrier subject to the hiring
duty because it was certificated just prior to enactment of the
Deregulation Act, even though it did not begin operations until
after deregulation. Yet, several of the large intrastate air carriers
(e.g., Southwest Airlines) are not covered carriers even though
they were substantial employers prior to deregulation and, apply-
ing the government’s logic, “benefitted” from the federal route and
rate restrictions applied to their competitors during the regulatory
era.

17 Covered carriers already are encumbered by substantially
higher labor costs generated during the regulatory period when
higher costs were passed through in rate proceedings. See Airline
Mergers and Acquisitions: The Question of Labor Protection:
Hearing Before the Subcomm. on Aviation of the Senate Comm.
on Commerce, Science and Transportation, 99th Cong., ist Sess. 7
(1985) (statement of Matthew V. Scocozza, Asst. Secy. for Policy

——s

16

The discriminatory burden facing the pre-1978 car-
riers results from Congress’ attempt to establish respon-
sibility on a retroactive basis to deal prospectively with
circumstances. created by deregulation. It is a pattern
that has often troubled this Court. See, e.g., Elkhorn, 428
U.S. at 16-17; id. at 42-44 (Powell, J., concurring) ;
Zobel v. Williams, 457 U.S. 55, 63 (1982). In Zobel the
Court rejected the state of Alaska’s attempt prospectively
to reward past contributions based on past residency,
concluding that distinctions based on intangible “past
contributions” did not further a legitimate state pur-
pose. Jd. at 63. As Justice Brennan noted, “In al-
most all instances, the business of the State is not
with the past, but with the present: to remedy con-
tinuing injustices, to fill current needs, to build on the
present order to better the future. ... Thus, the past-
contribution rationale proves much too little to provide a
rational predicate for discrimination ....” Jd. at 70-71
(Brennan, J., concurring).

Since the hiring duty is not limited to employees ter-
minated as a result of deregulation, there certainly is no
rational justification for imposing only on pre-1978 car-
riers the duty to remedy new injuries caused by more
recent events. Allocating such new burdens on a retro-
active basis contravenes a long established principle of
this Court.

B. The Duty To Hire Program Is Not Rationally Re-

lated To The Articulated Legislative Purpose.
This Court has stated that when a statute’s purpose
has been articulated, it is not necessary to “speculate as
to the objectives of the legislature.” Zobel, 457 U.S. at
61 n.7. The Court’s function is to determine whether

and Int’] Affairs, DOT) (“We have a completely different situation
after 1978 now. We have some of our more traditional carriers,
competing with post-deregulation carriers that have much, much
lower costs, very different operating scenarios, and much different
labor agreements”). See also Cappelli and Harris, Airline Union
Concessions in the Wake of Deregulation, 108 Monthly Lab. Rev.
87, 37-38 (June 1985).

17

the statutory scheme “rationally furthers” the legitimate,
articulated state purpose. San Antonio School District v.
Rodriguez, 411 U.S. 1, 17 (1973).

It is beyond dispute here that Congress’ express and
sole purpose in enacting Section 43 was to provide pro-
tections for employees adversely affected by deregulation.
The labor protections contained in both the final House
and Senate bills were provided only for employees af-
fected by deregulation. See H.R. 12611, 95th Cong., 2d
Sess. § 32 (1978) (“No authority granted by this Act
... Shall be exercised by any carrier unless prior to each
such exercise, [DOL] has certified . . . that the interests
of the employees who may be affected thereby have been
adequately protected ....”) (emphasis added) ; see also
S. 2498, 95th Cong., 2d Sess. § 22(h) (2) (1978) (finan-
cial benefits and hiring preferences accorded only to em-
ployees of carriers suffering bankruptcy or workforce re-
duction caused by a “change in regulatory structure”
provided by the Deregulation Act). The committee re-
ports of each house and the floor debates, prior to and
subsequent to the House-Senate Conference Report, over-
whelmingly confirm that Congress’ sole intention was to
protect employees adversely affected by deregulation.
See infra at 24-25. The legislative history further makes
clear that Congress intended one integrated, inter-
related EPP, consisting of financial benefits and a hiring
preference and that Congress wanted the program initi-
ated immediately to ease the transition to deregulation.
See Senate Report at 116.

DOL’s regulatory program, however, completely de-
parts from Congress’ articulated purpose in several cru-
cial respects. First, as noted above, DOL’s delay of five
years in promulgating its regulations is contrary to the
legislative purpose. In fact, DOL was without authority
to thrust this new regulatory burden on one segment of
the industry at the time it did, since Section 43 requires
that any regulations be issued within six months after

\ 18

October 24, 1978.1* By the time the regulations were
promulgated, thousands of employees had changed jobs,
earning “protected employee” status, and many of them
were working for competitors of their former em-
ployers, including dozens of new entrant air carriers. By
providing for retroactive notification of “designated em-
ployees,” DOL imposed a program “dictated by historical
patterns that may be wholly unrelated to the present
contours of the industry.” Elkhorn, 428 U.S. at 43
(Powell, J., concurrin;:). The hiring duty regulations,
for example, were imposed on fewer than half of the cer-
tificated carriers operating in 1986.

Second, DOL neglects altogether the government’s
compensation obligations. In the EPP’s integrated de-
sign, which originated in the Senate bill, the hiring
preference was intended to constrain the demand for
federal funding. See Senate Report at 116 (emphasizing
the “interaction” between the two program segments).
Congress expressly required that the compensation pro-
gram be established expeditiously, 49 U.S.C. app. § 1552
(f) (2), but DOL ignored this mandate and instead im-
plemented only the duty to hire provisions, thrusting the
entire new burden imposed by the EPP on the covered
air carriers.

18 Applying its technical reading of the statute consistently, see
infra at 25-26, DOL should have recognized that its authority to
issue duty to hire regulations had expired long before 1984. Sec-
tion 43(f) (1) states that “[t]he Secretary may issue ... such
... regulations as may be necessary for the administration of this
section,” but subsection (2) states that “rules or regulations which
the Secretary deems necessary ... shall be promulgated within
six months after October 24, 1978.” (emphasis added). Reading
the clauses together, it is apparent that DOL’s permissive au-
thority expired at the end of six months. Such a reading is con-
sistent with the objective of the EPP which was to ease the
transition into deregulation. Thrusting a comprehensive, new
regulatory program on the industry five years later would have
been inconsistent with the deregulatory purpose of the Act. See,
e.g., 49 U.S.C. app. § 1302(a) (4) (“maximum reliance on competi-
tive market forces”); id., §1302(a)(3) (no “unjust discrimina-
tions, undue preferences er advantages”); Senate Report at 5.

19

Third, despite Congress’ articulated purpose to help
employees adversely affected by the Deregulation Act,
DOL’s hiring preference program benefits primarily per-
sons whose dislocations are not attributable to deregula-
tion." Because DOL’s regulations are so overinclusive
they actually frustrate the statutory purpose by greatly
expanding the hiring pool and thereby diluting the job
opportunities available to those whom Congress intended
to protect (i.e., employees who lose their jobs because of
deregulation ) .”

DOL made no attempt to tailor its program or to
establish a nexus between the hiring burden and the
injury Congress intended to remedy. For example, Con-
gress or DOL could have established a rebuttable pre-
sumption that protected employees were adversely af-
fected by deregulation, allocating to the carriers the bur-
den to show they are not. In Elkhorn, this Court
scrutinized several statutorily created presumptions un-
der due process analysis to ensure that they did not break
the rational connection between the injury Congress in-
tended to repair and the burden placed on the responsible
employer. Elkhorn, 428 U.S. at 20-37. The statute cre-

19In the eight years since the Deregulation Act, many inter-
vening events have resulted in employment dislocation. DOL’s
retroactive notification provisions require the covered carriers to
search out and certify as “designated employees” persons who
had been terminated or furloughed since 1978 because, inter alia,
(a) a foreign government closes an international facility, (b) flights
are reduced as a result of the government’s firing of the air traffic
controllers in 1981, (c) a labor strike causes an airline to suspend
service temporarily, (d) federal safety enforcement grounds cer-
tain aircraft, or (e) an economic recession curtails service.

20 At the time DOL issued its final regulations, the expert
agencies, DOT and CAB, had concluded that almost all employment
dislocations since 1978 were attributable to causes other than
deregulation. See In re Application of Employees of Aeroamerica,
Dkt. No. 38,885 (CAB Apr. 7, 1983), CAB Order 83-4-36, at 7-10;
Comments of the Department of Transportation, Sept. 3, 1982 in
id. Thus, the hiring preference program established by DOL’s
regulations imposes a significantly greater burden on covered
carriers than Congress intended.

,
5
fe

20

ated a rebuttable presumption that a coal miner with
ten years employment in the mines who suffered from
pneumoconiosis contracted his disease from his employ-
ment. The presumption was found constitutionally valid
because it “simply .. . shift{ed] the burden of going for-
ward with evidence from the claimant to the operator,”
and because the ten year period was supported by scien-
tific evidence presented in testimony by the Surgeon Gen-
eral to Congress. Jd. at 27.

In contrast, Section 43, as construed by DOL, creates
no presumptions but establishes an absolute, irrebuttable,
generalized hiring duty without reference to the harm
Congress intended to remedy—unemployment caused by
deregulation.24 Compare Elkhorn, 428 U.S. at 19.

Thus, the legislative scheme is both overinclusive and
underinclusive. The hiring right benefits primarily em-
ployees who are terminated for reasons unrelated to de-
regulation, but the hiring duty applies only to interstate
carriers certificated prior to deregulation. In “practical
operation,” some air carriers, but not all of them, have
a duty to hire some—but not all—of the employees dis-
placed by the air traffic controllers’ strike. Some—but
not ali—nonstriking employees furloughed when their
carrier is grounded because of a strike may exercise hir-
ing rights at some—but not all—of the striking carrier’s
competitors. Cf. South Dakota v. Dole, 55 U.S.L.W.
4971, 4974 (U.S. June 23, 1987) (O’Conner, J., dissent-
ing). It is difficult to conceive of a classification scheme
more “clearly irrelevant” to the stated purpose of the
Deregulation Act and Section 43.

21 This Court has invalidated such statutory classifications based
on irrebuttable statutory presumptions (e.g., that all terminations
are attributable to deregulation), in circumstances where individ-
ualized decisionmaking or a rebuttable presumption would have
achieved the legislative purpose. Cf. Cleveland Board of Education
v. LaFleur, 414 U.S. 632 (1974); United States Department of
Agriculture v. Murry, 413 U.S. 508 (1973); and Vilandis v. Kline,
412 U.S. 441 (1978).

|

21

Because the means chosen in Section 43 are not ra-
tionally related to the articulated legislative purpose,
the hiring preference scheme is invalid under the due
process clause. See Zobel, 457 U.S. at 61; McGinnis v.
Royster, 410 U.S. 263, 270 (1973) ; Massachusetts Board
of Retirement v. Murgia, 427 U.S. 307, 314 (1976);
United States Railroad Retirement Board v. Fritz, 449
U.S. at 188 (Brennan, J., dissenting).

C. The Hiring Preference Scheme Is Not Rationally
Related To Any Legitimate Government Interest.

The hiring preference scheme not only fails to further
the congressionally articulated purpose, it is not ration-
ally connected to any conceivable, legitimate government
interest. The EPP singles out a special class of employees
who happen to have accumulated four years of seniority
at a single covered air carrier as of October 24, 1978,
and who happen to have been furloughed during a ten
year period for any reason at all (except cause) even if
they are currently employed by an airline. Such employ-
ees are entitled to a hiring preference over more qualified
applicants, most beneficiaries of EEO and other federal
statutory programs, and even applicants adversely af-
fected by deregulation without the requisite four years
at a single carrier. The hiring duty further conflicts
with the air carriers’ primary statutory duty “to per-_
form their services with the highest possible degree of
safety,” 49 U.S.C. app. §1421(b) (emphasis added)
(see also §§ 13807(a), 1303(a)), by forcing them to
choose less qualified applicants for safety-related posi-
tions and to ignore safety-related initial hiring age pol-
icies.22 Severed from any connection to deregulation, an
industry-wide hiring preference based on seniority at a

22 See Murnane v. American Airlines, Inc., 667 F.2d 98, 101
(D.C. Cir. 1981), cert. denied, 456 U.S. 915 (1982); see also
Harriss v. Pan American World Airways, Inc., 437 F. Supp. 413,
434 (N.D. Cal. 1977), aff'd in relevant part, 649 F.2d 670 (9th
Cir. 1980); Spurlock v. United Airlines, Inc., 475 F.2d 216, 219
(10th Cir. 1972) (“[t]he public interest clearly lies in having the
most highly qualified persons available to pilot airliners’).

22

particular cut-off date does not serve a legitimate govern-
ment interest any more than a distinction based on date
of birth, color of hair, years of residence, race or sex.

In Moreno, this Court addressed a statutory classifica-
tion scheme under which households with unrelated per-
sons were excluded from the Food Stamp Program. The
Court first held that the classification was not rationally
related to the articulated legislative purpose of the Food
Stamp Act—to help the nation’s agricultural economy
and satisfy nutritional needs. 413 U.S. at 533-34. The
Court then examined whether the challenged classification
would “rationally further some legitimate governmental
interest other than those specifically stated” by Congress.
Id. at 584. Rejecting the government’s argument that
the classification would prevent fraud, the Court noted
that other statutory provisions dealt directly with fraud
and that “in practical effect, the challenged classification
simply does not operate so as rationally to further the
prevention of fraud.” Jd. at 537. Arguably, the exclu-
sion of unrelated persons would eliminate some fraud
just as the hiring duty may pick up some employees ad-
versely affected by deregulation, but these blunt instru-
ments are so overinclusive that they simply are not ra-
tionally related to a legitimate governmental purpose.

The government’s counsel suggested below that Con-
gress may have wanted to provide generalized protections
for airline employees who had made a significant work
commitment during the regulatory era in reliance on the
security of regulation. Brief for Federal Appellees, at 39,
Alaska Airlines, Inc. v. Brock, Nos. 86-5042 and 86-5085
(D.C. Cir. Jan. 30, 1987). Congress could have done this
through a financial assistance program, but it mandated
financial assistance only for employees adversely affected
by deregulation, and DOL, of course, has ignored this
mandate. Imposing such a general obligation inequitably
on certain covered air carriers, which have had no pre-
vious employment relationship with the protected em-
ployees, however, is not a rational means of achieving
such an objective. See Elkhorn, 428 U.S. at 19.

23

Simply because some post hoc rationale can be articu-
lated to advance a governmental interest does not estab-
lish that a discriminatory classification scheme is ra-
tional. See Moreno, 413 U.S. at 538; Cleburne, 473 U.S.
at 448-50 (concern about flooding and overcrowding did
not justify excluding home for mentally retarded from
neighborhood since such concerns applied equally to other
homes not subject to exclusion) ; Metropolitan Life, 470
U.S. at 822 (invalidating Alabama statute that purported
to encourage new capital investment by taxing out of
state insurance companies more heavily than Alabama
companies because in “practical operation” the statute’s
discrimination against nonresident competitors did not
serve “a legitimate state purpose.’”) In practical opera-
tion, Section 43 does not rationally further any legitimate
governmental interest.

II. DOL’S INTERPRETATION THAT SECTION 43 IM-
POSES A DUTY TO HIRE EMPLOYEES TERMI-
NATED FOR REASONS UNRELATED TO DE-
REGULATION CONTRAVENES THIS COURT’S
PRECEDENT REQUIRING THAT REGULATIONS
BE CONSISTENT WITH THE DESIGN, ORIGIN
AND PURPOSE OF A STATUTE. |

Congress included Section 43 in the Deregulation Act

in 1978 to assist employees who might be adversely af-
fected by the transition to deregulation. See infra at 24-26.
In light of Congress’ clearly articulated purpose, the cir-
cuit court’s affirmance of DOL’s wooden reading of the
statute to extend the hiring duty to persons terminated
for reasons unrelated to deregulation and even to persons
working for other airlines is contrary to the guidelines
of this Court on statutory interpretation. Those guide-
lines emphasize that regulations must be in harmony
with the purpose of the authorizing legislation. An
agency cannot rely on a technical reading of the statute
if such a construction is contrary to-congressional intent.
This Court has

rejected the suggestion that a regulation is to be sus-

tained simply because it is not “technically incon-

sistent” with the statutory language, when that

24
regulation is fundamentally at odds with the mani-
fest congressional design. ... The challenged Regu-

lation is not a reasonable statutory interpretation

unless it harmonizes with the statute’s “origin and

purpose,”
United States v. Vogel Fertilizer Co., 455 U.S. 16, 26
(1982) (quoting National Muffler Dealers Association,
Inc. v. United States, 440 U.S. 472, 477 (1979)) (cita-
tions omitted and emphasis added). See also Voikswagen-
werk Aktiengesellschaft v. Federal Maritime Commission,
390 U.S. 261, 272 (1968) (quoting NLRB v. Brown,
380 U.S. 278, 291 (1965)); FBI v. Abramson, 456 U.S.
615, 625 n.7 (1982) (quoting NLRB v. Lion Oil Co.,
352 U.S. 282, 297 (1957) (Frankfurter, J., concurring
in part and dissenting in part) ).*

The court below failed to apply these standards to
determine whether DOL’s regulations are consistent with
congressional intent. Congress enacted Section 43 as an
“insurance” policy against the “theoretical possibility”
of employment reductions resulting from the Deregula-
tion Act. 124 Cong. Rec. $5879 (daily ed. Apr. 19, 1978)
(statement of Sen. Cannon); Senate Report at 113 (pro-
tection provided against “employee dislocations that might
occur as a result of the new regulatory structure” (em-
phasis added) ). The final bills introduced in both houses
expressly provided protections only for employees affected
by deregulation. See supra at 17. The House bill,
H.R. 12611, authorized benefits similar to those previ-
ously provided to employees affected by governmental
action in other areas of transportation. H.R. 12611, 95th
Cong., 2d Sess. § 32 (1978) .*

23 See also Rose v. Lundy, 455 U.S. 509, 517 (1982) (court “must
analyze the policies underlying the statutory provision to deter-
mine its proper scope”); Stafford v. Briggs, 444 U.S. 527, 535
(1980) (citation omitted) (“‘in interpreting a statute, the court
will not look merely to a particular clause . . . but will take in
connection with it the whole statute ... and the objects and policy
of the law’ ”’).

24 The benefits authorized in H.R. 12611 were based upon those
established in section 5(2)(f) of the Interstate Commerce Act

“af

25

The bill passed by the Senate contained an entirely
different concept of employee protection, but it also lim-
ited the benefits to persons affected by deregulation.
The hiring preference was limited to employees termi-
nated by carriers that had gone bankrupt or suffered a
15 percent workforce reduction caused by the Deregula-
tion Act, as determined by the CAB. See S. 2493, 95th
Cong., 2d Sess. § 22 (1978) ; see 124 Cong. Rec. S5876-83
(daily ed. Apr. 19, 1978) (hiring right available only to
employees terminated as a consequence of deregulation).
Thus, although the House and Senate versions of em-
ployee protection were significantly different, when the
two bills went to conference they shared one common
limitation—they expressly applied only to individuals
adversely affected by the Deregulation Act.

The Conference Committee in essence adopted the Sen-
ate version, with two substantive modifications. First,
the Committee lowered the 15 percent threshold for a
workforce reduction caused by deregulation to 7.5 per-
cent. H.R. Rep. No. 1779, 95th Cong., 2d Sess. 105
(1978). Second, it deleted as a prerequisite for a termi-
nated employee’s exercise of a hiring right the require-
ment that the CAB determine after a formal hearing
whether his employer had gone bankrupt or suffered a
substantial workforce reduction. Id.

The Conference Committee did not explain the reason
for the deletion but it is logical to infer that Congress
intended that all employees terminated as a result of
deregulation be eligible and not simply those whose em-
ployers were most severely affected (¢.g., bankrupt car-
riers). Nonetheless, DOL seized upon the deletion of this

and section 405 of the Rail Passenger Service Act. In both of
those statutes, benefits were provided only to employees who were
adversely affected by governmental action. See 49 U.S.C. § 11347
(1982) (protective arrangements for employees terminated as a
result of railroad mergers approved by the Interstate Commerce
Commission); 45 U.S.C. §565 (1982) (protection for railroad
employees adversely affected by discontinuance of passenger route
authorized by statute).

26

requirement as its sole justification for concluding that
its authority to confer first-hire rights went beyond em-
ployees affected by deregulation. See 50 Fed. Reg. 58,094-
95 (1985). DOL’s mechanical interpretation completely
ignores the manifest purpose of Section 43 and both the
House and Senate bills that preceded it. There is no
indication that either the House or the Senate ever in-
tended to extend the protection to employees furloughed
for reasons completely unrelated to deregulation.»

The error of DOL’s interpretation is further demon-
strated by the statements Conference Committee members
made when reporting to their respective Houses. They
made clear that the purpose of the bill—despite the
changed language—was only to protect employees who
lost their jobs “as a consequence of the deregulation
bill.” 124 Cong. Rec. H13,445 (daily ed. Oct. 14, 1978)
(remarks of Rep. Anderson, Chairman of the House
Aviation Subcommittee) (emphasis added) .”°

Given the limited scope of the House and Senate bills,
which addressed specifically the consequences of the De-
regulation Act on employment, it is unthinkable that,
without any debate or discussion, Congress would have
intended to expand Section 43(d) dramatically to pro-
vide a generalized hiring preference for employees fur-
loughed for reasons unrelated to the purposes of the

25 Under the rules of the House and Senate, the Conference
Committee had no authority to delete the requirement in both
bills that benefits be provided only to employees adversely affected
by deregulation. See Jefferson’s Manual and Rules of the House
of Representatives, H.R. Doc. No. 277, 98th Cong., 2d Sess. 641
(1985) (Rule XXVIII) ; Senate Manual, S. Doc. No. 1, 98th Cong.,
2d Sess. 59 (1984) (Rule XXVIII).

26 See also 124 Cong. Rec. H13,445 (remarks of Rep. Snyder,
ranking minority member of the House Aviation Subcommittee) ;
id. at H13,447 (remarks of Rep. Johnson, Chairman of the House
Public Works and Transportation Committee); 124 Cong. Rec.
$18,796 (daily ed. Oct. 14, 1978) (remarks of Sen. Cannon, Chair-
man of the Senate Commerce, Science and Transportation Com-
mittee) ; id. at $18,800 (remarks of Sen. Stevenson, Chairman of
the Senate Aviation Subcommittee).

Ram a SIN eh SS is ea a

ott acaliabe

ee a eee eee

27

Deregulation Act. To infer that the Conference Com-
mittee created out of whole cloth such an intrusive and
unprecedented regulatory program in legislation other-
wise dedicated to deregulating the industry simply defies
common sense.’

At a minimum, DOL should have considered the con-
stitutional issues raised by the airlines during the rule-
making and tailored its program to meet the articulated
congressional purpose and to avoid due process and equal
protection violations. See Greene v. McElroy, 360 US.
474, 507 (1959); NLRB v. Catholic Bishops of Chicago,
440 U.S. 490, 507 (1979).

CONCLUSION

For the foregoing reasons, the petition should be
granted.

Respectfully submitted,

WILLIAM T. COLEMAN, JR.
Counsel of Record

DONALD T. BLISS

JAMES P. NEHF
O’MELVENY & MYERS
555 13th Street, N.W.
Washington, D.C. 20004

July 7, 1987 (202) 383-5300

27 For example, in a case now pending in a federal district court,
a purported class of some 3,000 flight attendants who struck peti-
tioner Trans World Airlines in 1986 and were permanently re-
placed, have sued TWA for over $80 million in damages, for failing
to issue notices which would evidence their first right of hire as
flight attendants with other airlines. See Long v. Trans World
Airlines, Inc., No. 86 C 7521 (N.D. Ill.). Although these employees
left TWA’s active payroll as a result of a labor dispute eight years
after deregulation, the Department of Labor opined that they are
entitled to hiring preferences under the EPP. The plaintiffs have
also threatened to sue other carriers, including several petitioners
herein, who have not hired them. It is inconceivable that Congress
intended the airline employee protection program to apply in such
circumstances.

APPENDICES

la
APPENDIX A

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

Nos. 86-5042, 86-5085 & 86-5719

ALASKA AIRLINES, INC., e¢ al.,
Appellants
Vv.

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

Argued January 13, 1987
Decided January 30, 1987

Appeals from the United States District Court
for the District of Columbia

(D.C. Civil Action No. 84-0485)

Before: EDWARDS, BUCKLEY and D.H. GINS-
BURG, Circuit Judges.

JUDGMENT

These causes came on to be heard on the record on
appeal from the United States District Court for the
District of Columbia, and were briefed and argued by
counsel. While the issues presented occasion no need for
an opinion, they have been accorded full consideration by

2a

the Court. See Local Rule 13(c). On consideration there-
of, it is

ORDERED and ADJUDGED, by this Court, that the
judgment of the District Court appealed from in Nos.
86-5042 and 86-5085 is hereby affirmed in part, reversed
in part, and vacated and remanded in part for the rea-
sons set forth in the accompanying memorandum. It is

FURTHER ORDERED and ADJUDGED, by this
Court, that the judgment of the District Court appealed
from in No. 86-5719 is affirmed insofar as it denies a
Rule 60(b) motion for relief from judgment for the rea-
sons set forth in the accompanying memorandum; and
that, in light of the disposition in Nos. 86-5042 and 86-
5085, the appeal is dismissed as moot insofar as the mo-
tion requested enforcement of a prior judgment or review
of subsequent agency action. It is

FURTHER ORDERED, by this Court, sua sponte,
that the Clerk shall withhold issuance of the mandate
herein until seven days after disposition of any timely
petition for rehearing. See Local Rule 14, as amended
on November 30, 1981 and June 15, 1982. This instruc-
tion to the Clerk is without prejudice to the right of any
party at any time to move for expedited issuance of the
mandate for good cause shown.

Per Curiam

For the Court:

/s/ George A. Fisher
GEORGE A. FISHER
Clerk

8a

MEMORANDUM

In the District Court, the appellants, Alaska Airlines
and fourteen other airlines (the “Airlines’), raised a
number of challenges to regulations promulgated by the
Secretary of Labor (the “Secretary”) pursuant to his
statutory authority under section 43 of the Airline De-
regulation Act of 1978, 49 U.S.C. § 1552 (1982) (the
“Act’”’). Section 48 delineates the Act’s “employee pro-
tection program,” one provision of which imposes on
previously-regulated air carriers the duty to give a hir-
ing preference to certain airline employees (hereinafter
“protected employees”) who are terminated or furloughed
by such carriers within the ten-year period commencing
October 24, 1978. 49 U.S.C. § 1552(d) (1) (1982). Sec-
tion 43 authorizes the Secretary to “issue, amend, and
repeal such rules and regulations as may be necessary”
to administer this program. Id. § 1552(f) (1). Following
notice and comment, the Secretary promulgated the reg-
ulations in question. Airline Employees Protection Pro-
gram, 50 Fed. Reg. 53,093 (1985) (to be codified at 29
C.F.R. pt. 220.)

The appellants argue that the Secretary’s rules are in-
consistent with. the Act, violate the carriers’ Fifth
Amendment rights, and fail to reconcile the requirements
of the employee protection program with the carriers’
safety and civil rights obligations. The District Court
rejected all but one of these challenges.

In all respects save one, we find that the regulations
are clearly reasonable, consistent with the terms of the
Act, and within the Secretary’s statutory authority. Ac-
cordingly, under the standard of review dictated by the
Administrative Procedure Act, 5 U.S.C. § 706(2) (1982),
we uphold all but one portion of the challenged regula-
tions as a lawful exercise of the Secretary’s statutory
authority.

The Airlines’ challenge to the statute and regulations
on Fifth Amendment grounds is also without merit. Con-

4a

gress’ decision to place certain of the burdens of airline
deregulation solely on the previously-regulated carriers
satisfies the standard of rationality that applies to eco-
nomic regulation. See Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 15 (1976); City of New Orleans v.
Dukes, 427 U.S. 297, 303 (1976); Washington Star Co.
v. International Typographical Union Negotiated Pension
Plan, 729 F.2d 1502, 1509-11 (D.C. Cir. 1984).

Accordingly, we affirm the judgment of the District
Court except as indicated below.

We uphold the Secretary, and thus reverse the District
Court, on the issue that is the subject of the Air Line
Pilots Association’s cross-appeal. We hold that the District
Court erred in invalidating and remanding 29 C.F.R. 4
§ 220.21(a) (1) to the Secretary with instructions to con- :
sider the carriers’ safety concerns. The regulation in
question specifies that the carriers’ duty to hire protected
employees precludes the application of an employer’s
maximum hiring age criteria (except with respect to re-
tirement ages) to job candidates who qualify for the
hiring preference. We reject the District Court’s conclu-
sion that, with respect to flight officers and pilots, the
Secretary was obliged to adddess the carriers’ concern
that the regulation conflicts with the carriers’ obligation
to maintain air safety. In the express language of sec-
tion 48, Congress made it absolutely clear that the hir-
ing preference should apply “regardless of age.” 49
U.S.C. § 1552(d) (1) (1982). The safety concerns raised
by the Airlines are fully taken account of in sections
220.11(a), 220.20(a), and 220.21(a) of the Secretary’s
regulations, which leave carriers free to establish and
apply safety-related job qualifications to protected em-
ployees. These provisions clearly authorize carriers to
deny employment to protected employees on safety .
grounds; it is only the maximum age qualification in and
of itself which is prohibited.

i i it aa ied

NE ee Te Te Te ee

Beats ic 5 oie

5a

On the record before us, there is one aspect of the
Secretary’s regulations that we find problematic under 5
U.S.C. § 706(2) (1982). The District Court interpreted
29 C.F.R. § 220.29 and 29 C.F.R. § 220.01(j) to mean
that “any valid equal employment opportunity agree-
ment” overrides the duty to hire protected employees.
However, the actual language of section 220.01(j) sug-
gests that the exception created by section 220.29 is a
narrower one. In this appeal, counsel for the government
has stated no clear position on the meaning of section
220.01(j). We therefore vacate and remand this portion
of the District Court’s decision with instructions to re-
mand the issue to the Secretary for clarification of the
scope of the equal employment opportunity exception.

Finally, we affirm the District Court’s denial of the
Airlines’ Rule 60(b) motion. The court clearly did not
abuse its discretion in declining to give the appellants
relief from its original judgment. See Browder v. Di-
rector, Department of Corrections, 434 U.S. 257, 263 n.7
(1978) (abuse of discretion standard governs review of
district court’s ruling on Rule 60(b) motion). Insofar
as the appellants’ motion attempted either to enforce the
District Court’s original mandate to the Secretary or to
present an appeal from the Secretary’s subsequent re-
promulgation of 29 C.F.R. § 220.21(a) (1), their appeal
to this court is rendered moot by our reversal of the Dis-
trict Court’s decision invalidating and remanding the
regulation.

Ga.
APPENDIX -B

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

Civ. A. No. 84-0485

PRO ey |

ALASKA AIRLINES, INC., et al.,
Plaintiffs,
Ve

WILLIAM E. BRocK, SECRETARY OF LABOR, et al.,
Defendants,

AIR LINE PILOTS ASSOCIATION INTERNATIONAL, et al.,

Intervening
Defendants.

January 22, 1986

MEMORANDUM
GESELL, District Judge.

This case involves a multitude of chalienges to the
Department of Labor’s regulations under the employee
protection provisions of the Airline Deregulation Act.
49 U.S.C. § 1552. The case is before the Court after
remand on motions for summary judgment or affirmance
of the Secretary’s regulations, there being no material
facts in dispute. After reviewing the original and sup-
plementary briefs of the parties and hearing two oral
arguments on these issues, the Court makes the following
rulings.

Sa \eatd dere

:
3
4
3

Ta

Background

When Congress passed the Airline Deregulation Act of
1978 it included an employee protection program to pro-
tect employees who had relied on employment with regu-
lated carriers and might be displaced in the transition
to a deregulated, competitive market. Airline Deregula-
tion Act, § 43, Pub. L. No. 95-504, 92 Stat. 1705, 1750
(1978) codified at 49 U.S.C. § 1552. Although this pro-
gram, § 43 of the Act, has been in effect for over seven
years, its turbulent history has prevented airline em-
ployees from receiving any substantial benefits from its
provisions.

Section 43 contains two prongs. The first directed the
Secretary of Labor to establish a program for providing
displaced workers with monetary assistance funded from
the United States Treasury, 49 U.S.C. § 1552(a)-(c).
Congress has never appropriated funds for this program
so no implementing regulations have been promulgated
and no assistance has ever been provided by the govern-
ment.

In addition to this monetary assistance, the statute
establishes a second program, § 43(d), which obligates
the airlines to give certain “protected employees” a first-
right-of-hire when filing job vacancies. The Secretary of
Labor’s original proposed regulations were noticed for
comment in 1979 but never resulted in a final rule. 44
Fed. Reg. 19146 (1979). A revised set of proposed regu-
lations was issued in 1982 and published as a final rule
in 1983. 47 Fed. Reg. 41304 (1982) ; 48 Fed. Reg. 53854
(1983). On the date these regulations became effective,
this Court concluded that the unconstitutional legislative
veto provision of the statute was not severable from its
other provisions and therefore the regulations were in-
valid. Alaska v. Donovan, 549 F. Supp. 92 (D.D.C. 1984).
The Court of Appeals disagreed and remanded the case
to resolve plaintiffs’ remaining challenges to the regula-

8a

tions. Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550
(D.C. Cir. 1985), petition for cert. filed, No. 85-920
(November 27, 1985).

Due to this combination of Congressional inaction, ad-
ministrative delay and litigation, protection for airline
employees has remained an unfulfilled promise. Many
airlines have resisted recognizing any duty to hire or
taken the position that there is no duty until the De-
partment of Labor regulations become effective. The
courts are just now beginning to address the issue of
whether a private right of action exists to enforce the
duty to hire. See McDonald v. Piedmont Aviation, Inc.,
84 Civ. 8262-CLB (S.D.N.Y. January 6, 1986) (holding
that private cause of action exists).

The Secretary has now reissued his regulations defining
the airlines’ duty to hire and requiring airlines to main-
tain a list of vacancies to assist protected employees in
finding jobs. 50 Fed. Reg. 53094 (December 27, 1985).
The plaintiffs, representing fifteen airlines that were
certificated by the Civil Aeronautics Board prior to de-
regulation, argue that the Setcretary’s regulations are
based on an erroneous and unconstitutional interpreta-
tion of the Act and that the Secretary arbitrarily and
capriciously ignored the conflicts between his regulations
and other legal obligations of the airlines.

Discussion
I. The Scope of the Duty to Hire.

The Airlines’ primary argument is that the Secretary
of Labor’s interpretation of the statutory duty to hire is
too broad. According to the Airlines, Congress only in-
tended to protect the victims of deregulations—not em-
ployees who are terminated due to other reasons, such
as poor business practices or general business conditions.
But under the Secretary’s regulations there is no require-

IN ABS ne at

9a

ment that employees show that their termination or fur-
lough was related to deregulation. An employee is eli-
gible for the hiring preference if he had four years of
service with a single regulated airline at the time of
deregulation and is involuntarily terminated or fur-
loughed within ten years after the date of deregulation.
The only exceptions from this broad definition of eligi-
bility are airline employees who are retired, terminated
for cause, on strike, or who voluntarily -resign or quit.
29 C.F.R. § 220.10. The Secretary maintains that the
broad scope of these regulations is compelled by the lan-
guage and legislative history of the Act.

Resolving this dispute requires a careful examination
of the language of the Act. Congress defined the phrase
“protected employee” as a person who at the date of
deregulation had been employed for at least four years
by a certificated air carrier. 49 U.S.C. § 1552(h) (1).
The Airline’s argument that not all “protected employ-
ees” are protected by the hiring preference is not based
on the language of the duty to hire, but on the language
used to define those eligible for monetary assistance:

The Secretary of Labor shall, subject to such
amounts as are provided in appropriation Acts,
make monthly assistance payments . . . to each in-
dividual who the Secretary finds, upon application,
to be an eligible protected employee. An eligible
protected employee shall be a protected employee who
on account of a qualifying dislocation (A) has been
deprived of employment, or (B) has been adversely
affected with respect to compensation.

49 U.S.C. § 1552(a) (emphasis added). Congress defined
a “qualifying dislocation” as a bankruptcy or major con-
traction of an air carrier occurring during the first ten
calendar years after deregulation “the major cause of
which is the change in regulatory structure provided by
the Airline Deregulation Act of 1978, as determined by

10a

the Civil Aeronauties Board.” 49 U.S:C. § 1552 (h) (2).?
Thus, displaced employees were required to trace their
unemployment to a CAB determination that they were
victims of deregulation in order to qualify for monetary
assistance as a “eligible protected employee.”

In defining the beneficiaries of the duty to hire pro-
gram, however, Congress did not use the term “eligible
protected employees,” but provided that

Each person who is a protected employee of an air
carrier . . . who is furloughed or otherwise termi-
nated 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,
regardless of age, in his occupational speciality, by
any other air carrier hiring additional employees...

49 U.S.C. § 1552(d) (1) (emphasis added).

The Court cannot ignore this difference in terminology
or dismiss it as accident or mistake. Congress used dif-
ferent terms, separately and carefully defined to describe
the employees eligible for these two programs.? Only
those who are seeking monetary assistance from the gov-
ernment are required to make the rigorous showing that
deregulation was the cause of their termination. ‘Pro-
tected employees” who cannot make this showing are still
“protected” by the duty to hire provision.

1A “major contraction” is defined as a reduction by at least 714
percent of the total number of full-time employees of an air
carrier within a 12-month period. 49 U.S.C. § 1552(h) (4).

2The duty to hire provisions of §43(d) does use the phrase
“eligible protected employee” to establish a special duty on the
Secretary to assist those employees receiving monetary assistance
from the government in obtaining reemployment. 49 U.S.C.
§ 1552(d) (2), (8). Congress’s special concern with having these
employees rehired appears to have been based on the fact that
encouraging these employees to invoke the duty to hire would
minimize the costs of the monetary assistance program.

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This interpretation is consistent with the legislative
history of § 43(d). The original version of the Senate
Bill limited the duty to hire to protected employees who
were “furloughed or otherwise terminated . .. on ac-
count of a qualifying dislocation... .” S. 2493, 95th
Cong., 2d Sess., § 22(d) (2) (1978). The House Bill was
more generous, requiring that before carriers could exer-
cise authority under the new act, the Secretary of Labor
had to certify that the interests of airline employees
who may be affected have been “adequately protected
by fair and equitable arrangements providing levels of
protection no less beneficial and protective of such in-
terests than those established pursuant” to the employee
protection provisions of the Interstate Commerce and
Rail Passenger Service Act.* H.R. 12611, 95th Cong.,
2d Sess., § 382 (1978). As is often the case, the Confer-
ence Committee produced a compromise. The Committee
adopted almost all of the Senate Bill but deleted the ‘on
account of a qualifying termination” requirement from
the duty to hire provision. H.R. Rep. No. 95-1779, 95th
Cong., 2d Sess. 105 (1978). Congress enacted this ver-
sion, retaining the causation requirement for monthly
assistance payments but extending the duty to hire to
all protected employees terminated or furloughed within
the ten year period after deregulation.

Nevertheless, the Airlines argue that even if a “qualify-
ing dislocation” is not required, the Secretary should
have considered whether some showing that the employees
were terminated due to deregulation should still be re-
quired before they can invoke the duty to hire. There
is no support in the statute or its legislative history for
this position. The duty to hire in §48(d) is without
qualification and there is no indication that Congress
delegated any authority to the Department of Labor to
limit eligibility or create a system to determine which

3§5(2) (f) of the Interstate Commerce Act, 49 U.S.C. § 11347;
§ 405 of the Rail Passenger Service Act, 45 U.S.C. § 565.

12a

terminations are due to deregulation. The Secretary has
consistently interpreted the statute according to its plain
language since his first regulations in 1979. The Air-
lines’ real quarrel is with Congress, which decided not
to limit airline employees’ rights with the same causation
requirements found in some other labor protection stat-
utes.

Congress’s decision to make the hiring preference over-
inclusive may create a burden for the Airlines and lead
to anomalous results in individual cases, but it is not
unconstitutional. Airline representatives testified before
Congress that there was no way to determine which
employees were victims of general business circumstances
and which were victims of regulatory reform.* Given
this testimony it was reasonable for Congress and the
Secretary of Labor to adopt a broad definition of the
duty to hire in order to insure that employes who may
have been displaced by deregulation receive some protec-
tion. If each employee had to demonstrate that their
termination or furlough was connected to deregulation
many deserving individuals might be denied the hiring
preference. The fact that Congress apparently chose to
be more generous with the airlines’ money than with
the public’s does not provide any basis for the Court to
impose a different interpretation and invalidate the Sec-
retary’s regulations. “We are not members of Congress,
with the power to rewrite the terms of a law which may
have revealed infirmities in its implementation.” Ameri-
can Federation of Government Employees, AFL-CIO v.
Federal Labor Relations Authority, No. 84-1512, slip op.
at 23 (D.C. Cir., December 13, 1985).

Even if the Secretary’s position was not so strongly
supported by the language of the statute and its history,

4Statement of Richard J. Ferriss, President, United Airlines,
Hearings before the Subcommittee on Aviation of the Committee on
Public Works and Transportation of the House of Representatives
on H.R. 8813, 95th Cong., 1st Sess. 1868 (1977).

13a

the Airlines have been unable to point to any indication
that Congress considered this issue and intended to limit
the duty to hire. The numerous statements quoted by
the Airlines only indicate that Congress intended to help
those who were victims of deregulation, not that they in-
tended to exclude those who could not demonstrate a con-
nection. The Secretary of Labor’s regulations are con-
sistent with the language of the statute and his inter-
pretation of Congress’s intent is a reasonable one that
must be upheld by the Court. Chevron, U.S.A., Inc. v.
National Resources Defense Council, 104 S.Ct. 2778
(1984). In addition, it may be noted that the Secre-
tary’s regulations have been before Congress since No-
vember of 1983 and despite the Court of Appeal’s deci-
sion holding that §43(d) is severable from the uncon-
stitutional legislative veto provision, Congress has not
taken any action to alter the mandate of § 43(d) or the
Secretary’s interpretation of it.5

Finally, the Airlines also argue that the statute and
the Secretary’s regulations violate due process and equal
protection because the duty to hire is only imposed upon
airlines that had received CAB certification before de-
regulation and does not apply to intrastate carriers who
were never certified and new airlines that have arisen
since deregulation. This contention is without merit.
Economic regulation must be upheld against due process
and equal protection challenges unless the statute’s classi-
fication is wholly irrational. At the time the Deregula-
tion Act was passed Congress believed that regulated
carriers had been the beneficiaries of a system which pro-
tected them from competition, resulting in more costly
and less efficient service to consumers. S. Rep. No. 95-

5 The Airlines have also voiced a last minute objection that the
reissued regulations have not been submitted to Congress for the
sixty-day period required by §$ 43(f), 49 U.S.C. §1552(f). Since
these regulations are substantially the same as those submitted to
Congress in 1983 no resubmission is required.

14a

631, 95th Cong., 2d Sess. 113 (1978). Congress decided
that the beneficiaries of regulation should bear the bur-
den of displacements that might occur as a result of de-
regulation. Placing the duty to hire on all certificated
carriers as of the date of deregulation may have been a
crude way of achieving this result, but it is not irrational
or unconstitutional.

II. Conflict with Other Legal Obligations of the Airlines.

The Secretary of Labor argues that many of the other
challenges raised by the Airlines are not ripe for ad-
judication. It is clear that many of the questions dis-
cussed or alluded to in the parties’ briefs are not yet
ripe. This Court need not determine whether their air-
line employees have a private right of action under the
act as the Secretary has suggested and one federal court
has found. Nor is the question of the termination date of
the program ripe for decision. Nor is the issue of
whether a protected employee who subsequently finds a
job with another airline can quit and invoke the duty to
hire preference in seeking another job ripe.

Nonetheless, the issues Airlines have pressed are ripe
for review to the extent they present facial challenges to
the Secretary’s rulemaking. All of the prerequisites for
review are satisfied. These final rules are a final agency
action. They will have a “direct and immediate” impact
on the way the Airlines conduct their personnel prac-
tices. Finally, the questions of whether these regulations
on their face improperly conflict with other legal obliga-
tions of the Airlines are fit for judicial resolution. Better
Government Association v. Department of State, No. 84-
5928, slip op. at 11-14 (D.C. Cir., January 3, 1986).

A. Safety Considerations.

The Airlines argue that three aspects of the Secre-
tary’s regulations interfere with their obligation to
maintain the highest possible standard of safety. Al-

*
e
-

15a

though there is no indication that Congress considered
how the employee protection provisions were to relate
to safety concerns, it did state that implementation of
the Deregulation Act should result in “no diminution of
the high standard of safety in air transportation at-
tained in the United States on October 24, 1978.” 49
U.S.C. §13807(a). Congress and the courts have re-
peatedly emphasized that airlines are under a legal obli-
gation to operate with the highest possible degree of care.
Murnane v. American Airlines, 667 F.2d 98, 101 (D.C.
Cir. 1981), cert. denied, 456 U.S. 915 (1982).

The Airline’s first objection on safety grounds has been
thoroughly and adequately answered by the Secretary in
the course of the rulemaking. The Airlines argue that
the regulations’ requirement that they keep a vacancy
open for thirty days in order to allow a protected em-
ployee to apply for the position imposes an unworkable
requirement that will, among other things, impairs
safety. See 29 C.F.R. § 220.24. The Secretary addressed
these concerns in promulgating the final rule and con-
cluded that they were speculative in light of the indus-
try’s practice of accepting advance applications and any
problems could be mitigated by maintaining files of ad-
vance applications or listing anticipated vacancies. 50
Fed. Reg. at 53095 (1985). Employees unexpectedly die,
:

retire, become ill or resign everyday and the airlines are
able to adjust by hiring temporary employees or reassign-
ing staff without jeopardizing their safety record. The
Secretary’s imposition of a waiting period was not arbi-
trary or capricious.

The Airlines’ second safety concern raises one rather
technical defect. The regulations permit carriers to apply
any prerequisites or qualifications they desire, except
limitations based on seniority, recall rights or previous
experience with another airline and initial hiring age
(excluding retirement ages). 29 C.F.R. § 220.21. Be-
cause the initial hiring age of flight officers and pilots

ee Tn

16a

may affect the amount and adequacy of the training and
experience they receive, the courts, in the context of the
Age Discrimination Act, have recognized otherwise im-
permissible initial age requirements may be bone fide
occupational qualifications because of the safety obliga-
tions of the airlines. Murnane v. American Airlines, 667
F.2d 98, 101 (D.C. Cir. 1981), cert. denied 456 U.S. 915
(1982). Although the Airline Deregulation Act states
that the duty to hire shali apply “regardless of age,” an-
other judge of this court, in construing Congress’s intent
in this provision, concluded that Congress must not have
intended to prohibit age requirements imposed for safety
reasons. “Only this interpretation preserves the impor-
tant occupational qualifications required in the interest
of air safety.” Murnane v. American Airlines, Inc., 482
F. Supp. 135, 153 (D.D.C. 1979), aff'd, 669 F.2d 98.

Although the interpretation in the Murnane decision
is “dicta,” it demonstrates that the Airlines’ concern is a
substantial one. The arguments now advanced by counsel
for the Secretary for a different interpretation may be
correct, but they are still after-the-fact rationalizations
that cannot satisfy the need for the Secretary himself to
address such an important issue when it is raised in
rulemaking comments, as it was here. Action On Smok-
ing and Health, 699 F.2d 1209, 1216 (1983); Ace Motor
Freight v. I.C.C., 557 F.2d 859, 864 (D.C. Cir. 1977).
Invalidating the entire rule under these circumstances is
obviously not an appropriate remedy. The Court will in-
validate the provision on initial hiring age as to flight
officers and pilots alone, and remand the issue to the
Secretary for further explanation.®

The Airlines’ final safety complaint is meritless. They
object that the regulations prevent them from hiring the
“safest” employees possible because they have a duty to

6 The Secretary need not reopen the existing record if he finds
that it is adequate to address this issue on remand.

_

ee eee Te oi _ Je

17a

hire protected employees first. This objection was never
raised in any significant way during the rulemaking. It
is not a real conflict, but an effort by the Airlines to
create an apparent conflict that would undermine the
language and purpose of the statute. If carriers had ab-
solute discretion to choose the “safest” applicants, the
hiring preference would be virtually meaningless. More-
over, aside from the restrictions mentioned above, the
regulations permit carriers to require that job applicants,
including protected employees, meet any standard qualifi-
cations the carriers’ desire and give them discretion in
choosing from among the pool of protected employees who
meet these requirements. Finally, it is inherent in the
statute itself that protected employees will already be
experienced in their fields and airline safety.

B. Equal Employment Opportunity.

The Secretary’s regulations provide that the duty to
hire shall take precedence over any equal employment
opportunity obligations unless the airline is subject to
a specific equal employment requirement pursuant to a
federal court or administrative order, consent decree or
conciliation agreement providing relief by virtue of the
earrier’s unlawful employment discrimination and the
airline cannot meet these requirements from the pool of
employees eligible for the hiring preference. 29 C.F.R.
§§ 220.01(j) ; 220.29. The Airlines’ object that the ex-
emption is inadequate because it conflicts with their gen-
eral obligation under Title VII and other statutes and
does not cover voluntary decrees which contain no ad-
mission of unlawful discrimination.

There is no merit in this contention. There is no facial
conflict between Title VII and the Secretary’s regulations
under the Airline Deregulation Act. An individual deci-
sion or a pattern of hiring decisions dictated by the stat-
ute’s duty to hire could not be the basis for a claim of
unlawful discrimination against a carrier. The Airlines’
challenge is largely based on a misinterpretation of the

18a

regulations, which the Department of Labor says in-
cludes any valid equal employment opportunity agree-
ment, with or without a recital of liability. Unlike the
comments on safety and hiring age, the Secretary di-
rectly addressed the Airlines’ comments on conflicts with
equal employment obligations by consulting with the
Equal Employment Opportunity Commission, amending
the initial rule to provide more flexibility and giving his
reasons in the statement on the final rule. 50 Fed. Reg.
at 538095-96 (1985). His conclusion that the duty to
hire should take precedence, except in those instances
provided in the rule, is a reasonable accommodation of
the conflicting policies.

C. Conflict with the Railway Labor Act.

The Airlines’ final objection is that the regulations im-
properly upset the delicate employer-employee “balance”
established by the Railway Labor Act by giving termi-
nated strikers rights under the duty to hire. The con-
tention that this will somehow “tilt” the balance in a
way that is inconsistent with the statutory scheme for
handling labor disputes is based on the most imaginative
type of speculation. The Secretary directly and ade-
quately addressed this supposed “conflict” in fashioning
the final rule and his decision was a reasonable accom-
modation of the policies involved.

The remaining objections in the Airlines’ broadside at-
tack are equally frivolous and must be rejected. An ap-
propriate order dismissing the complaint, except with
respect to the initial hiring age of flight officers and
pilots, as indicated above, filed herewith.

19a
APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-5042 and Consolidated Cases 86-5085, 86-5719
ALASKA AIRLINES, INC., et al.
v.

WILLIAM E. Brock, individually
and as Secretary of Labor, et al.

March 9, 1987

BEFORE: EDWARDS, BUCKLEY and D. H. GINS-
BURG, Circuit Judges ———

ORDER
Upon consideration of appellants’ petition for rehearing,
it is ORDERED, by the Court, that the petition is denied.

Per Curiam

For THE CouRT:
GEORGE A. FISHER
Clerk

By: /s/ Robert A. Bonner
ROBERT A. BONNER
Chief Deputy Clerk

20a

APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-5042 and Consolidated Cases 86-5085, 86-5719
ALASKA AIRLINES, INC., et al.
v.

WILLIAM E. Brock, individually
and as Secretary of Labor, et al.

March 9, 1987

BEFORE: Wald, Chief Judge; Robinson, Mikva, Ed-
wards, Ruth B. Ginsburg, Bork, Starr,
Silberman, Buckley, Williams and D. H.
Ginsburg, Circuit Judges

ORDER

Appellants’ suggestion for rehearing en banc has been
circulated to the full Court. No member of the Court
requested the taking of a vote thereon. Upon considera-
tion of the foregoing, it is

ORDERED, by the Court en banc, that the suggestion
- is denied.

Per Curiam

FOR THE CouRT:

GEORGE A. FISHER
Clerk

By: /s/ Robert A. Bonner
ROBERT A. BONNER
Chief Deputy Clerk

Circuit Judge Silberman did not participate in this order.

2la
APPENDIX E

CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS INVOLVED

CONSTITUTION OF THE UNITED STATES
AMENDMENT V

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public
use, without just compensation.

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,
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.

22a

(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 full 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
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,

PO SO FT

23a

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 speciality, 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.

(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 shall 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

24a

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 Sec-
retary in seeking other employment. In order to carry
out his responsibilities under this subsection, the Secre-
tary may require each such air carrier to file with the
Secretary the reports, data, and other information nec-
essary 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.

(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 the guidelines which is re-
quired to be promulgated pursuant to subsection (b)

shisha AN AKA PRR

ib eiacscis.n pital

25a

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 House disapproves such rules or regulations,
except that such rules or regulations may become effec-
tive 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
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 carry out the
provisions of this section.

26a

(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 714 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 714 percent. In computing a 714-percent
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.

(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.

27a

(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, § 48, 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.

28a

28 U.S.C. § 1254 (1982). Courts of appeals; certiorari;
appeal; certified questions

Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:

(1) By writ of certiorari granted upon the peti-
tion of any party to any civil or criminal case
before or after rendition of judgment or decree;

(2) By appeal by a party relying on a State
statute held by a court of appeals to be invalid as
repugnant to the Constitution, treaties or laws of
the United States, but such appeal shall preclude
review by writ of certiorari at the instance of such
appellant, and the review on appeal shall be re-
stricted to the Federal questions presented;

(3) By certification at any time by a court of
appeals of any question of law in any civil or crimi-
nal case as to which instructions are desired, and
upon such certification the Supreme Court may give
binding instructions or require the entire record to
be sent up for decision of the entire matter in con-
troversy.

29a
REGULATIONS

DEPARTMENT OF LABOR

Bureau of Labor-Management
- Relations and Cooperative Programs

29 CFR Part 220
Airline Employee Protection Program

AGENCY: Bureau of Labor-Management Relations and
Cooperative Programs, Labor.

ACTION: Final rule.

SUMMARY: The Department of Labor, through the
Bureau of Labor-Management Relations and Cooperative
Programs (BLMRCP), is issuing regulations to imple-
ment the Airline Employee Pretection Program estab-
lished by Section 43 of the Airline Deregulation Act of
1978 (Pub. L. 95-504). By Secretary’s Orders Number
1-79 and 5-84, the (_BLMRCP) has been assigned re-
sponsibility for provisions concerning protected employ-
ees’ priority hire rights, air carriers’ duty to hire and
the comprehensive job listing. These rules are designed
to effectuate those provisions.

EFFECTIVE DATE: January 27, 1986.

FOR FURTHER INFORMATION CONTACT: Jeffrey
Salzman, Airline Employee Protection Program, Division
of Employee Protections, Room N-5416 U.S. Department
of Labor, 200 Constitution Avenue, NW., Washington,
D.C. 20210. Phone: (202) 357-0473.

SUPPLEMENTARY INFORMATION:
Background

On October 24, 1978, the Airline Deregulation Act of
1978, Pub. L. 95-504 (the Act), was signed into law to
bring to a close economic regulation of the airline indus-

30a

try. Although airline deregulation is expected to result
in expanded overall employment opportunities over the
long term. Congress recognized the possibility of reduc-
tion of the labor force of one or more air carriers as they.
make the adjustment from government regulation to an
economic environment governed by market forces. Sec-
tion 43 of the Act provides in general terms for certain
employee protective provisions to be administered by the
Secretary of Labor. Those provisions include both a
legal hiring preference for certain unemployed airline
workers and, under contain defined circumstances, a
benefit program. These regulations apply only to the
first-right-of-hire and job list provisions contained in
Section 43 of the Act (the Rehire Program).

Under the Act, those persons (other than members of
the board of directors or corporate officers) who as of
October 24, 1978 (the Trigger Date) had been employed
for at least four years by an air carrier which had been
certificated under section 401 of the Federal Aviation
Act of 1958 on or before that date (any such carrier
being

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2321%3A1. Public record. Not legal advice.