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January 4, 1984


The opinion of the court was delivered by: BRIEANT


Brieant, J.

 Familiarity with all prior proceedings in this matter on the part of the reader is assumed.

 Pursuant to Section 7 of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and § 9 of the Federal Trade Commission Act, 15 U.S.C. § 49, the Equal Employment Opportunity Commission ("EEOC") sought an order from this Court directing Pan American World Airways, Inc. ("Pan Am") to comply with the terms of a subpoena duces tecum issued on January 14, 1983. The EEOC had initiated an investigation in response to about 13 separate employee complaints of age based discrimination with respect to the supervisory work force practices of Pan Am at its John F. Kennedy International Airport facility ("JFK"). Specifically, the complaints charged that since January 1980 Pan Am had engaged in a systematic practice of age based discrimination in executing its "Reduction in Force" ("RIF") program, whereby older, more experienced supervisors have been terminated or intimidated into retirement while younger, less experienced and lower paid supervisory personnel have been retained and promoted.

 Pan Am resisted the subpoena, contending that it imposed an excessive burden on a struggling business seeking to cope with a changed business climate and rehabilitate itself, and also on the ground that much of the information sought was irrelevant and the scope was excessively broad and unrelated to the level of corporate discretion under investigation. In addition, Pan Am asserted to this Court that the statistical information sought by Part II of the subpoena was not a valid sample of the supervisory work force under investigation, and therefore a "useless fishing expedition." Pan Am also contended that the subpoena should be limited because its scope was inconsistent with the published "ADEA Case Processing Procedures" of the EEOC, and argued in a moving fashion to this Court that the tremendous bulk of data demanded by this subpoena, and the manpower necessary to accumulate this information would pose an unreasonable and excessive burden on its already precarious financial state.

 This Court by a Memorandum and Order dated March 23, 1983 reached the following conclusion:

 "In subpoena enforcement proceedings, absent a showing that the investigating agency is without authority, or the information sought irrelevant, or that the demand itself is too indefinite, or compliance too burdensome, the court will not restrict the investigatory power granted the EEOC by Congress. United States v. Morton Salt Co., 338 U.S. 632, 652, 94 L. Ed. 401, 70 S. Ct. 357 (1950); Federal Trade Commission v. Rockefeller, 591 F.2d 182 (2d Cir. 1979); See Rule 45(b), F.R.Civ.P. and Title VII, 42 U.S.C. § 2000e-8. Those concerned with the burdensome effect of such demands on commerce should address themselves to Congress for relief.

 For the purposes of this motion, it is conceded that the EEOC is acting within its statutory authority and that the information demanded by Part 2 of the subpoena is sufficiently definite."

 This Court concluded that the information sought was relevant and that the EEOC was acting within its investigatory powers to examine it. This Court also held that while the subpoena was burdensome, the Court was unable to find that compliance would "unduly disrupt or seriously hinder normal operation" of Pan Am, thereby imposing an excessive burden upon it. The Court directed Pan Am to permit the EEOC to make an on site examination of all relevant records, and held that following such discovery in place, production of any additional information necessary to comply with the provisions of Part II of the subpoena should be compelled only upon further formal application to the Court.

 This determination was apparently unsatisfactory to both parties. However, no appeal was taken, and the process of compliance therewith commenced.

 Some two months later and on June 23, 1983, the Supreme Court decided the case of Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). In Chadha, the Court held that the one-house legislative veto of an exercise by the Executive Branch of authority delegated by Congress (to the Attorney General) was unconstitutional and that such a provision was severable from the initial delegation, and void.

 Possible the Court in Chadha was unaware of the far reaching possibilities of its sudden discovery that the time honored process of legislative veto, authorized since 1932 in 295 separate Congressional procedures in 196 different statutes, was unconstitutional. *fn1" Perhaps it did not foresee the consequent disruption to ongoing litigation. In any event, the Court made no attempt to deal with the issue of whether its newly declared rule was retrospective, and the related issue of whether all such delegations remained valid, with only the reserved veto power stricken as void. *fn2"

 It was only a matter of time before litigants situated as is Pan Am would discern that the one house veto provision of the Reorganization Act of 1977 was also unconstitutional. The delegation of power from Congress to the President therein contained in turn permitted the President in 1978 to reorganize the Executive Branch of Government so as to transfer enforcement authority for the ADEA and the Equal Pay Act to the EEOC from the Department of Labor, which he did.

 Chadha was followed shortly by a motion to dismiss a lawsuit in the United States District Court for the Southern District of Mississippi, EEOC v. Allstate Insurance Co., 570 F. Supp. 1224 (S.D. Miss., September 9, 1983). This action involved a suit under the Equal Pay Act, enforcement of which was transferred from the Department of Labor to the EEOC by the same Reorganization Plan No. 1 of 1978 which also transferred the ADEA enforcement function to the EEOC. Judge Barbour dismissed that action by summary judgment for lack of capacity to sue, holding that the Reorganization Act of 1977 was unconstitutional. His opinion finds standing on the part of the defendant employer to raise the issue, concludes that the provisions here considered are not severable, and that Chadha must be applied retroactively.

 The Court in Allstate also held (at 1228):

 "Does the fact that no veto was interposed alter the requirements of bicameralism and presentment?

 The question presented by this case is not directly answered in Chadha. Chadha did emphasize the importance of preserving the separation of powers between the executive and legislative branches of government [footnote omitted]. Moreover, the Court noted that "[t]o allow Congress to evade the strictures of the Constitution and in effect enact Executive proposals into law by mere silence cannot be squared with Art.I." Chadha, U.S. at n. 22, 103 S. Ct. at 2787 n. 22. It is evident from the opinion in Chadha that "every use of the legislative veto" is invalid [footnote omitted].

 The fundamental problem with the legislative retention of veto power is that it places the executive in the position of legislating subject to a Congressional veto [footnote omitted]. In this sense it stands Art. I of the Constitution on its head. Congress had various tools by which it may control its grant of power, but "Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." Id. 103 S. Ct. at 2786.Because the Court in Chadha clearly sweeps with a broad stroke in its holding that the legislative one-house veto is ...

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