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August 22, 1984

UNITED STATES OF AMERICA, Plaintiff, against CITY OF YONKERS; GERALD LOEHR as Mayor of the City of Yonkers; CHARLES CONNOLLY as Commissioner of Police of the City of Yonkers; CITY OF WHITE PLAINS; ALFRED DEL VECCHIO, as Mayor of the City of White Plains; JOHN DOLCE as Commissioner of Public Safety of the City of White Plains; NEW YORK STATE DEPARTMENT OF CIVIL SERVICE; VICTOR S. BAHOU, as President and Commissoner of the New York State Department of Civil Services, JOSEPHINE J. GAMBINO and JAMES T. MCFARLAND, as Commissioners of the New York State Department of Civil Services, Defendants.

The opinion of the court was delivered by: SOFAER



 On December 30, 1980, the United States filed this action against the City of Yonkers, its Mayor and Police Commissioner, the New York State Department of Civil Service, and its President and Commissioners. The suit challenged hiring procedures for the Yonkers Police Department, including written examinations administered in 1972, 1973, and 1977, physical agility tests administered in 1973 and 1977, and a height requirement in effect until 1973. The complaint alleged that these defendants engaged in a pattern and practice of discrimination on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000e-17; the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6716; the Comprehensive Employment and Training Act of 1973, Pub. L. No. 93-203, § 612, 87 Stat. 839, 882 (repealed 1982); and the Omnibus Crime Control and Safe Streeets Act of 1968, 42 U.S.C. § 3789d. The United States requested that defendants be ordered to employ nondiscriminatory selection procedures and sought compensation for identifiable victims in the form of jobs, backpay, and retroactive seniority. Efforts to settle the litigation orginally appeared successful, but ultimately failed, necessitating long and expensive discovery, which still continues.

 Meanwhile, however, both the Yonkers and the state defendants filed motions for summary judgment. They argued, first, that the Attorney General has no authority to bring this suit because the Reorganization Act under which the President has assigned him this responsibility contained an unconstitutional legislative veto provision; second, that the Act unconstitutionaly delegated legislative power; third, that even if the Attorney General had authority to bring the suit he failed to fulfill statutorily prescribed administrative prerequisites; and fourth, that the suit was untimely. In addition, the state defendants argued that they are not an employer for purposes of Title VII and that the eleventh amendment bars the Yonkers crossclaim against them.

 Many of these contentions appeared to require a close review of the litigation's history. The trial was therefore commenced, on the supposition that by hearing the federal government's prima facie case the motions could more accurately be considered, and the overall litigation might be narrowed to avoid the great costs the parties are being forced to bear, and which are no doubt particularly burdensome for Yonkers. At the close of the initial phase of trial, the Yonkers and state defendants moved to dismiss the action pursuant to Federal Rule of Civil Procedure 41(b), arguing that the United States had failed to establish a prima facie case of a pattern or practice of discrimination.

 The rulings that follow establish that the Attorney General has properly brought this case against all defendants. The defendants' challenges on various legal grounds to the propriety of this suit are therefore denied, except that the Yonkers crossclaim against the state defendants is dismissed. A separate memorandum and order will assess the sufficiency of the United States' prima facie case, after defendants have had an opportunity to crossexamine the government's expert witness.

 I. Authority of the Attorney General.

 Defendants challenge the authority of the United States to bring this litigation. They contend that the 1972 Amendments to Title VII deprived the Attorney General of independent authority to initiate pattern-or-practice suits. They also contend that the return of such authority to the Attorney General pursuant to authority granted the President in the Reorganization Act of 1978 is ineffective, because the Act included a unicameral legislative veto provision.

 A. Effect of the 1972 Amendments to Title VII.

 Section 707(a) of Title VII, upon which the United States relies for the Attorney General's authority to bring this suit, has remained unchanged since its enactment as part of the Civil Rights Act of 1964:

 Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

 Pub. L. 88-352, Title VII, § 707(a), 78 Stat. 261, 42 U.S.C. § 2000e-6.

 Not until the 1972 Amendments to the Act, however, did the "person[s]" subject to its coverage come to include "governments, governmental agencies, [and] political subdivisions". 42 U.S.C. § 2000e(a) (as amended by Pub. L. 92-261, § 2(1), 86 Stat. 103). In addition, the 1972 Amendments added three subsections to section 707 which, in conjunction with the expansion in coverage, prompted considerable confusion. Section 707(c) provided for the transfer of "the functions of the Attorney General under this section . . . to the Commission" as of March 24, 1974. 42 U.S.C. § 2000e-6(c). Section 707(d) provided for the continuation of all suits commenced prior to the effective date of the transfer and the substitution of the Commission as plaintiff. Id. § 2000e-6(e). And that subsection also provided that all such actions "be conducted in accordance with the procedures set forth in section 2000e-5 of this title." Id. After enactment of the 1972 Amendments, the Attorney General consistently argued that Congress had not intended to deprive him of authority to bring pattern-or-practice suits against public employers in the absence of a referral from the Commission, but the argument fared poorly. Compare United States v. City of Milwaukee, 439 F. Supp. 264, 266-67 (E.D. Wis. 1977) (independent authority retained), with United States v. Board of Education of Garfield Heights City School District, 435 F. Supp. 949, 950-53 (N.D. Ohio 1976) (authority retained, but only upon referral from EEOC), aff'd, 581 F.2d 791 (6th Cir. 1978); and United States v. State of South Carolina, 445 F. Supp. 1094, 1110-11 (D.S.C. 1977) (three-judge court) (same), aff'd mem. sub nom. National Education Association v. South Carolina, 434 U.S. 1026, 54 L. Ed. 2d 775, 98 S. Ct. 756 (1978); and United States v. Fresno Unified School District, 412 F. Supp. 392, 394 (E.D. Cal. 1976) (Attorney General "presently has no authority to act on his own initiative in a pattern or practice case)", rev'd, 592 F.2d 1088 (9th Cir.), cert. denied, 444 U.S. 832, 62 L. Ed. 2d 41, 100 S. Ct. 62 (1979); with id. at 393 ("entire pattern or practice jurisdiction" transferred); and United States v. Pima County Community College District, 409 F. Supp. 1061, 1062-63 (D. Ariz. 1976) (authority transferred altogether; only Commission can bring pattern-or-practice suit, even against public employer). See also Occidental Life Insurance Co. v. Equal Employment Opportunity Commission, 432 U.S. 355, 370, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977) (noting that 1972 Amendments "transferr[ed] the authority to bring pattern-or-practice suits from the Attorney General to the Commission," but not specifying any limits to that transfer); United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 843 n. 17 (5th Cir. 1975) (dictum) (noting transfer as of March 24, 1974, to EEOC of "full range of "pattern or practice" functions" previously belonging to Justice Department); Equal Employment Opportunity Commission v. Continental Oil Co., 393 F. Supp. 167, 169 n. 1 (D. Colo. 1975) (dictum) (after period of concurrent authority, "EEOC acquired exclusive power to sue in pattern or practice cases"), aff'd, 548 F.2d 884 (10th Cir. 1977).

 In 1978 President Carter exercised his authority under the Reorganization Act of 1977, 5 U.S.C. §§ 901-912, to issue Reorganization Plan No. 1. See 1978 U.S. Code Cong. & Admin. News. 9795 (also reproduced at 5 U.S.C.A., App. 1, at 111-16 (West Supp. 1984)). The Plan provided for the transfer to the Attorney General of "[a]ny function of the Equal Employment Opportunity Commission concerning initiation of litigation with respect to State or local government, or political subdivisions under section 707." Id. at 9800. The accompanying message of the President, however, made clear his view that no authority over the initiation of litigation against public employers had ever left the Attorney General's hands. The President observed:

 The Plan I am proposing will not affect the Attorney General's responsibility to enforce Title VII against State or local governments. . . . In 1972, the Congress determined that the Attorney General should be involved in suits against State and local governments. This proposal reinforces that judgment and clarifies the Attorney General's authority to initiate litigation against State or local governments engaged in a "pattern or practice" of discrimination.

 Id. at 9798 (emphasis added). Related materials are not wholly unambiguous in this regard, however. In connection with the Reorganization Plan, President Carter isseud an Executive Order intended "to clarify the Attorney General's authority to initiate public sector litigation under Section 707." Executive Order No. 12068 (June 30, 1978), reproduced at 43 Fed. Reg. 28971 and 1978 U.S. Code Cong. & Admin. News 9729. That Order referred to "[t]he functions transferred to the Attorney General by Section 5 of Reorganiztion Plan No. 1." Id. (emphasis added).

 Committees in both the House and Senate expressed the views similar to those expressed by the President in his message accompanying Reorganization Plan No. 1. The Reorganization Act provides for the automatic introduction upon the transmittal by the President of a reorganization plan of a resolution disapproving that plan in each House. 5 U.S.C. §§ 909-910. The Senate Committee Report prompted by the transmittal of Plan No. 1 states explicitly that under the 1972 Amendments the Attorney General "was to retain jurisdiction to institute pattern or practice suits under Title VII against State and Local government employers subject to the Civil Rights Act." S. Rep. No. 750, 95th Cong., 2d Sess 4 (1978). The relevant House Committee likewise concluded that, notwithstanding the "confusion . . . in the courts and elsewhere regarding the Attorney General's right to file pattern and practice suits against . . . state and local governments," the 1972 Amendments "gave to the Attorney General the authority to enforce equal employment practices" against government bodies. H.R. Rep. No. 1069, 95th Cong., 2d Sess. 8 (1978).

 Statements of Congress are not notably reliable guides in interpreting the intentions of a predecessor which enacted a given statute. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 354 n.39, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977); United States v. City of Miami, 664 F.2d 435, 437 n.1 (5th Cir. 1981) (en banc) (per curiam) (Rubin, J., concurring); Fresno, 592 F.2d at 1093. Even so, while later observations as to the intent of the enacting Congress "are in no sense part of the legislative history," United Air Lines, Inc. v. McMann, 434 U.S. 192, 200 n.7, 54 L. Ed. 2d 402, 98 S. Ct. 444 (1977), they may still provide some guidance, Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 117-20 n.13, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); Cannon v. University of Chicago, 441 U.S. 677, 687 n.7, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979); Banco Nacional de Cuba v. Farr, 383 F.2d 166, 174-75 (2d Cir. 1967), cert. denied, 390 U.S. 956, 19 L. Ed. 2d 1151, 88 S. Ct. 1038 (1968), particularly where, as here, "the precise intent of the enacting Congress is obscure," Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 63 L. Ed. 2d 36, 100 S. Ct. 800 (1980). After reviewing the legislative history of the 1972 Amendments, the Ninth Circuit concluded "that the courts have been mistaken in holding that the Attorney General lost independent authority to initiate public sector pattern or practice suits." Fresno, 592 F.2d at 1093.

 Between the effective date of the Reorganization Plan and the Supreme Court's decision in Immigration and Naturalization Services v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), the question whether the Attorney General had retained independent authority to bring pattern-or-practice suits against public employers after the passage of the 1972 Amendments was of little practical moment.Whatever the value of the legislative history in discerning the intentions of Congress in 1972, courts uniformly found that the views expressed by the congressional committees and the President in connection with the Reorganization Plan justified applying the Plan's allocation of responsibility to pending litigation so as to allow suits brought by the Attorney General before the effective date of the Plan to proceed. See City of Miami, 664 F.2d at 436 (per curiam); id. at 437 (Rubin, J., concurring); Fresno, 592 F.2d at 1093-94; United States v. Virginia, 620 F.2d 1018, 1022 (4th Cir.), cert. denied, 449 U.S. 1021, 66 L. Ed. 2d 483, 101 S. Ct. 589 (1980); United States v. North Carolina, 587 F.2d 625, 626 (4th Cir. 1978) (per curiam), cert. denied, 442 U.S. 909, 61 L. Ed. 2d 274, 99 S. Ct. 2820 (1979); United States v. State of New York, 82 F.R.D. 2, 5 (N.D.N.Y. 1978); United States v. Baltimore County, 19 Fair Empl. Prac. Cases (BNA) 397, 399-400 (D. Md. 1978); see also Garfield Heights, 581 F.2d at 792 (Edwards, J., dissenting). But by raising doubts as to the validity of the Reorganization Act and thus the Plan promulgated under it, the Supreme Court's decision in Chadha infused the question with renewed importance.

 B. Validity of Reorganization Plan No. 1.

 Reorganization Plan No. 1 unequivocally invests the Attorney General with authority to initiate pattern-or-practice suits against governmental entities. Defendants contend, however, that the presence of the one-house veto in the Reorganization Act renders it unconstitutional under Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). See also Consumers Union of United States, Inc. v. Federal Trade Commission, 223 U.S. App. D.C. 386, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam), aff'd sub nom. United States Senate v. Federal Trade Commission, 463 U.S. 1216, 103 S. Ct. 3556, 77 L. Ed. 2d 1403 (1983); Consumer Energy Council of America v. Federal Engery Regulatory Commission, 218 U.S. App. D.C. 34, 673 F.2d 425 (D.C. Cir. 1982), aff'd sub nom., Process Gas Consumers Group v. Consumers Energy Council of America, 463 U.S. 1216, 103 S. Ct. 3556, 77 L. Ed. 2d 1402 (1983). They argue that this in turn invalidates the Plan which the President promulgated pursuant to authority granted him by that Act. See Equal Employment Opportunity Commission v. Allstate Insurance Co., 570 F. Supp. 1224 (S.D. Miss. 1983), appeal dismissed for want of jurisdiction, 467 U.S. 1232, 104 S. Ct. 3499, 82 L. Ed. 2d 810, 52 U.S.L.W. 3889 (U.S. 1984); Equal Employment Opportunity Commission v. Westinghouse Electric Corp., 33 Fair Empl. Prac. Cas. (BNA) 1232 (W.D.Pa. Jan. 5, 1984) (adopting Alstate reasoning); Equal Employment Opportunity Commission v. Martin Industries, 581 F. Supp. 1029, 34 Fair Empl. Prac. Cas. (BNA) 201 (N.D. Ala. Feb. 24, 1984) (same); cf. United States v. Pasadena Independent School District, No. 83-5107 (S.D. Tex. Jan. 6, 1984) (declaring unconstitutional § 707(c), 42 U.S.C. § 2000e-6(c), because of one-house veto provision).But see Equal Employment Opportunity Commission v. Hernando Bank, Inc., 724 F.2d 1188 (5th Cir. 1984); Muller Optical Co. v. Equal Employment Opportunity Commission, 574 F. Supp. 946 (W.D. Tenn 1983), appeal docketed, No. 83-5889 (6th Cir. Nov. 17, 1983); Equal Employment Opportunity Commission v. Jackson County, 4 E.B.C. 2655, 33 Fair Empl. Prac. Cas. (BNA) 963 (W.D. Mo. Dec. 13, 1983) (adopting reasoning of Muller Optical); Equal Employment Opportunity Commission v. City of Memphis, 581 F. Supp. 179, 33 Fair Empl. Prac. Cas. (BNA) 1089 (W.D. Tenn. Dec. 29, 1983); Equal Employment Opportunity Commission v. CBS, Inc., 34 Fair Empl. Prac. Cas. (BNA) 257 (S.D.N.Y. Jan. 13, 1984) (Sprizzo, J.) (oral opinion), motion for leave to appeal pursuant to § 1292(b) granted, No. 84-6063 (2d Cir. Feb. 28, 1984). See also Equal Employment Opportunity Commission v. Pan American World Airways, 576 F. Supp. 1530, 33 Fair Empl. Prac. Cas. (BNA) 1232 (S.D.N.Y. Jan. 4, 1984) (Brieant, J.) (declining to decide issue until guidance from appellate courts).

 Claims based on Chadha, similar to those addressed here, are being raised in numerous cases in connection with a variety of statutes and agencies. They have created great uncertainty as to the administrative and judicial actions taken under literally hundres of statutes. In fact, however, most Chadha claims were unwarranted, and ample bases exist for their rejection. In this case, Chadha does not compel invalidation of the Reorganization Plan, because the one-house legislative veto provision is severable from the remainder of the Act. Furthermore, Congress ratified the Plan in subsequent legislation passed after full consideration in both Houses. Finally, and most fundamentally, defendants lack standing to complain of the mere presence in the Act of a legislative veto provision which has not been exercised to their detriment. Not only have defendants in this case failed to allege any concrete, nonspeculative injury flowing from the presence of the veto provision, but they have also failed to assert any violation of their own constitutional rights. In these circumstances, parties such as defendants who challenge laws on the basis of Chadha fail to allege a legally sufficient interest.

 1. Severability. The Supreme Court essentially presumes the offending provisions of any statute are severable. "Unless it is evident that the Lesiglature would not have enacted these provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 108, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (per curiam) (quoting Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 76 L. Ed. 1062, 52 S. Ct. 559 (1932)); see Tilton v. Richardson, 403 U.S. 672, 684, 29 L. Ed. 2d 790, 91 S. Ct. 2091 (1971) (plurality opinion). The absence of a severability clause, as here, is of negligible consequence to the inquiry posited. United States v. Jackson, 390 U.S. 570, 585 n.27, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968); Consumer Engery, 673 F.2d at 442; Note, Severability of Legislative veto Provisions: A Policy Analysis, 97 Harv. L. Rev. 1182, 1184-86 (1984). But see Carter v. Carter Coal Co., 298 U.S. 238, 312, 80 L. Ed. 1160, 56 S. Ct. 855 (1936) (absence of severability clause raises presumption of inseverability). It is by no means evident that Congress would not have passed the Reorganization Act if it had known the Supreme Court would declare the unicameral veto provision unconstitutional; quite the contrary, Congress knew well that the technique was of questionable validity, but passed the statute nonetheless. Much of the legislative history cited by Yonkers in support of its argument that Congress would not have enacted the Reorganization Act without a legislative veto actually leads to a contrary conclusion. The Act explicitly declares Congress' desire to reorder the executive branch to increase its efficiency. 5 U.S.C. § 901(a). The Act expresses as well the congressional determination that these ends would be expeditiously achieved by authorizing the President to redistribute executive functions. Id. § 901(b)(d).Certainly, as Yonkers points out, Congress contemplated "a cooperative effort by the President and the Congress." House Report at 2. But Congress did not rely exclusively on the legislative veto to implement this concern. Rather, for the first time -- and recognizing the veto's dubious validity -- Congress adopted significant limitations on how the President could exercise the reorganization authority conferred. 5 U.S.C. §§ 903-905; see House Report at 46, 47. Thus, Congress specifically directed that no reorganiztion plan could have the effect of creating a new department, abolishing an old one, continuing an agency or function beyond the time authorized by law, or permitting an agency to perform a function not already expressly authorized. Id. § 905. Congress would have had less need to include these proscriptions if it intended the Act to stand or fall as a whole.

 Yonkersrecites the statement in the House Report that

 the one-house legislative veto provisions of this bill raise serious constitutional questions. The procedural modifications made by this bill in the traditional reorganization legislation, however, strengthen the role of Congress and help allay, in part, those fears of unconstitutionality. It is the judgment of the committee that the risk is worth taking and that because of the expected results in cost ...

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