Appeal from an order of the United States District Court for the Southern District of New York, Sprizzo, J., determining that the presence of a one-house veto clause in the Reorganization Act of 1977 did not invalidate the authority of the Equal Employment Opportunity Commission, transferred to it by Reorganization Plan No. 1 of 1978, to enforce the Age Discrimination in Employment Act. Reversed.
Cardamone, Pratt, and Daniel M. Friedman of the United States Court of Appeals for the Federal Circuit, sitting by designation, Circuit Judges.
This appeal presents a narrow but important question of first impression in this circuit:
Does the presence of a one-house veto clause in the Reorganization Act of 1977 invalidate the authority of the Equal Employment Opportunity Commission (EEOC), transferred to it by Reorganization Plan No. 1 of 1978, to enforce the Age Discrimination in Employment Act (ADEA)?
Judge Sprizzo below held that, although the legislative veto clause in question is unconstitutional in light of the Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), the EEOC retains authority to enforce the ADEA, 29 U.S.C. § 621 et seq., because (1) the veto clause is severable from the rest of the Reorganization Act and, alternatively, (2) congress has ratified the transfer of enforcement authority to the EEOC. Because we conclude that the unconstitutional veto provision is not severable from the rest of the Reorganization Act, and that congress has not ratified the transfer of authority, we reverse the judgment of the district court and hold that, as of the effective date of our judgment on this appeal, absent corrective action by congress, the EEOC's authority to prosecute this action will cease.
The Reorganization Act of 1977, Pub. L. No. 95-17, 91 Stat. 29, codified at 5 U.S.C. § 901 et seq. (the Act), conferred on the President authority to reorganize executive departments and agencies subject to a "veto" by either house of congress. Procedurally, the Act required the President to transmit any proposed reorganization plan to both houses, and such a plan was to become effective if neither house passed a resolution of disapproval within 60 days. 5 U.S.C. §§ 903, 906(a).
As authorized by the Act, President Carter prepared and submitted to congress Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19807, 92 Stat. 3871, reprinted in 1978 U.S. Code Cong. & Ad. News 9795-9800 (the Plan), which was designed to reorganize and expand the functions of the EEOC. Among the functions and responsibilities transferred to the EEOC were enforcement and administrative authority for the ADEA, which had previously been enforced by the Secretary of Labor. Since neither house passed a resolution of disapproval, the entire Plan, including its transfer of enforcement authority over the ADEA, became effective. See generally EEOC v. Allstate Insurance Co., 467 U.S. 1232, 104 S. Ct. 3499, 82 L. Ed. 2d 810 (1984) (Burger, Ch. J., dissenting from dismissal of appeal for lack of jurisdiction).
In May 1981 the EEOC filed the complaint in this action, charging CBS with violating the ADEA. Over two years later, in September 1983, CBS moved to dismiss, claiming that the EEOC lacks power to enforce the ADEA, because the Plan's transfer of ADEA enforcement authority from the Department of Labor to the EEOC was subject to a one-house veto, a legislative device that was held unconstitutional in Chadha. The district court denied CBS's motion, but on its certification pursuant to 28 U.S.C. § 1292(b) we permitted this interlocutory appeal.
In one broad stroke, the Supreme Court in Chadha invalidated every use of the legislative veto. 103 S. Ct. at 2788 (Powell, J., concurring); see also id. at 2792, 2810-11 (White, J., dissenting). Chief Burger's majority opinion reasoned that this device, various forms of which had been inserted in nearly 200 federal laws since the mid-1930's, violated constitutional mandates of separation of powers, bicameralism, and presentment. Id. at 2781-88. In effect, the Court held that the convenience, flexibility, and efficiency of the device could not overcome the fact that it is clearly inconsistent with our constitutional structure. Id. at 2781.
Given such a strongly worded position by the Supreme Court, it is not surprising that the EEOC does not dispute that the legislative veto provision contained in the Reorganization Act is unconstitutional.
Instead, the EEOC argues that notwithstanding the unconstitutionality of the legislative veto device, it retains enforcement authority under the Plan, because (a) the veto provision is severable from the rest of the Act; (b) even if it is not severable, congress has ratified the Plan by its subsequent appropriation of funds for ADEA enforcement to the EEOC and by a reference to the Plan in § 905 of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, 1224, codified at 5 U.S.C. § 1101 (note); and (c) even if the provision is not severable and has not ...