E.E.O.C. v. Westinghouse Elec. Corp.

• Citation: 765 F.2d 389
• Decision Date: 20 June 1985
• Docket Number: No. 84-3073,84-3073
• Parties: 45 Fair Empl.Prac.Cas. 1342, 37 Empl. Prac. Dec. P 35,361 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. WESTINGHOUSE ELECTRIC CORP., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 389

765 F.2d 389

45 Fair Empl.Prac.Cas. 1342,

37 Empl. Prac. Dec. P 35,361

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. WESTINGHOUSE ELECTRIC CORP., Appellee.

No. 84-3073.

United States Court of Appeals, Third Circuit.

Argued Feb. 28, 1985.

Decided June 20, 1985.

Richard K. Willard, Acting Asst. Atty. Gen., Carolyn Kuhl, Deputy Asst. Atty. Gen., Douglas Letter, Atty., Dept. of Justice, Washington, D.C., David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, Susan Buckingham Reilly, Acting Asst. Gen. Counsel, Mark S. Flynn (Argued), Atty., E.E.O.C., Washington, D.C., for appellant.

Walter P. DeForest (Argued), Philip A. Miscimarra, Reed Smith Shaw & McClay, Pittsburgh, Pa., Stuart I. Saltman, Westinghouse Elec. Corp., Pittsburgh, Pa., for appellee.

Before ADAMS, WEIS and WISDOM, ^* Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal presents the question whether Congress may ratify retroactively the institution of a lawsuit by the Equal Employment Opportunity Commission (EEOC) to enforce the Equal Pay Act requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 206(d) (1982). Westinghouse Electric Corporation (Westinghouse), defendant in a sex discrimination suit initiated by the EEOC, moved to dismiss the action. It contended that the EEOC lacked enforcement authority because of the presence of an unconstitutional legislative veto provision in the statute that authorized the EEOC to institute Equal Pay Act suits, the Reorganization Act of 1977, 5 U.S.C. Sec. 901 et seq. (1982). ¹ The district court agreed that the EEOC was without power to bring the suit, and entered a judgment dismissing the complaint.

While EEOC's appeal from the judgment of dismissal was pending, Congress expressly ratified all reorganization plans taken pursuant to prior reorganization acts, including the Reorganization Act of 1977. See Pub.L. 98-532, 98 Stat. 2705 (1984). Contending that this intervening legislation retroactively affords it independent enforcement authority, the EEOC now moves this Court to vacate the district court's judgment and remand so that the EEOC may proceed with the Equal Pay Act suit. We agree that P.L. 98-532 applies retroactively, the judgment of the district court will be vacated and the matter remanded for further proceedings.

I.

A complaint was filed by the EEOC on May 20, 1983, charging that Westinghouse had violated the Equal Pay Act by paying lower wages to female employees than to male employees performing equal work. EEOC's authority to institute the suit was founded upon Reorganization Plan No. 1 of 1978, 42 Fed.Reg. 19807, 92 Stat. 3781, which transferred executive administration and enforcement of the Equal Pay Act from the Department of Labor to the EEOC. The Reorganization Plan was promulgated by President Carter pursuant to authority granted by the Reorganization Act of 1977, 5 U.S.C. Secs. 901 et seq. The Reorganization Act contains a legislative veto provision.

On August 29, 1983, Westinghouse moved for dismissal of the case, arguing that because of the legislative veto provision, the Reorganization Act was unconstitutional under Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); that the Reorganization Plan transferring Equal Pay Act enforcement to the EEOC was therefore void; and that consequently the EEOC was without authority to institute the present suit. The EEOC responded by contending that the legislative veto provision of the Reorganization Act was severable, and that therefore its unconstitutionality did not undermine the validity of the remainder of the Act. See, e.g., EEOC v. Hernando Bank, 724 F.2d 1188 (5th Cir.1984); Muller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir.1984).

The district court determined that the legislative veto provision was not severable, and that the EEOC thus had no power to maintain the action. It therefore dismissed the lawsuit. While the EEOC's appeal was pending, the Second Circuit, in EEOC v. CBS, Inc., 743 F.2d 969 (2d Cir.1984), also found the Reorganization Act unconstitutional under the reasoning in Chadha. Concerned about the far-reaching effects of its decision, the Second Circuit stayed its mandate pending possible Congressional action. Congress acted promptly, expressly ratifying all executive branch reorganization actions taken pursuant to prior reorganization legislation, including the Reorganization Act of 1977 that is in question here. See P.L. 98-532. The ratifying legislation declares as follows:

SECTION 1. The Congress hereby ratifies and affirms as law each reorganization plan that has, prior to the date of enactment of this Act, been implemented pursuant to the provisions of chapter 9 of Title 5, United States Code, or any predecessor Federal reorganization statute.

SECTION 2. Any action taken prior to the date of enactment of this Act pursuant to a reorganization plan that is ratified and affirmed by section 1 shall be considered to have been taken pursuant to a reorganization expressly approved by Act of Congress.

Pub.L. 98-532, 98 Stat. 2705 (1984). As the House Report explains, the "purpose of [this legislation] is to make clear the legal authority for agencies to exercise functions transferred under previously implemented reorganization plans...." H.Rep. No. 1104, 98th Cong., 2nd Sess. 2 (1984), U.S.Code Cong. & Admin.News 1984, pp. 4423, 4424.

After P.L. 98-532 was passed by the Congress and signed by the President, the EEOC moved in this Court to vacate the judgment of dismissal that had been entered by the district court and to remand for further proceedings on the Equal Pay Act charges. If P.L. 98-532 applies to the reorganization plan that transferred Equal Pay Act enforcement authority from the Department of Labor to the EEOC, it is argued, we need not resolve the issues originally presented in this appeal--i.e., whether the Reorganization Act of 1977 is constitutional. Westinghouse agrees that P.L. 98-532 may be dispositive of the right of the EEOC to enforce the Equal Pay Act, but contends that it should not be given retroactive effect to validate the power of the EEOC at the time this suit was originally filed.

II.

By its terms, P.L. 98-532 is retroactive. Section 1 of the Act ratifies all reorganization plans pursuant to reorganization acts implemented "prior to the date of enactment of this Act," and Section 2 extends this ratification to actions taken pursuant to the above-ratified reorganization plans. Thus, it is clear that Congress intended P.L. 98-532 to be effective retroactively. It is clearly within Congress' power to enact retroactive legislation ratifying actions that when undertaken may have been unauthorized. E.g., Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301-02, 57 S.Ct. 478, 479-80, 81 L.Ed. 659 (1937); Norton v. Shelby County, 118 U.S. 425, 451, 6 S.Ct. 1121, 1130, 30 L.Ed. 178 (1886).

There is also no question that P.L. 98-532 applies to such EEOC enforcement actions as the one present here. The statute's express terms cover the institution of this litigation by the EEOC, for the lawsuit is an act taken pursuant to a reorganization plan. Indeed, Congress passed P.L. 98-532 precisely to respond to a similar question of EEOC authority. See EEOC v. CBS, 748 F.2d 124 (2d Cir.1984); EEOC v. CBS, 743 F.2d 969 (2d Cir.1984). Several courts have summarily held that P.L. 98-532 constitutes a full and effective retroactive ratification sufficient to remove any question regarding the EEOC's enforcement authority. EEOC v. First Citizens Bank of Billings, 758 F.2d 397, 399-400 (9th Cir. 1985); EEOC v. CBS, 748 F.2d at 125; Barrett v. Suffolk Transportation Services, 600 F.Supp. 81, 82 (E.D.N.Y.1984). Before joining the position taken by these courts, we shall first consider Westinghouse's arguments that giving P.L. 98-532 retroactive effect in this case would either work "manifest injustice" or alternatively, violate due process by retroactively endowing the district court with jurisdiction.

The "manifest injustice" standard derives from Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006 2016, 40 L.Ed.2d 476 (1974), in which the Supreme Court held that while the general rule is that "a court is to apply the law in effect at the time it renders its decision," an exception might be made if manifest injustice is thereby demonstrated. Bradley, 416 U.S. at 711, 94 S.Ct. 2016.

We note that the "change in law" considered and held retroactive in Bradley was far more substantial than the executive "housekeeping" provision at issue here. Bradley involved a statute that retroactively created substantive liabilities; the question there was whether an attorney's fee statute should be applied to services rendered before the provision was enacted. In the case at hand, on the contrary, no substantive liabilities whatsoever were created, and no reasonable or settled expectations were frustrated. P.L. 98-532 merely ratified a transfer of executive authority to enforce the Equal Pay Act from the Labor Department to the EEOC. The transfer in question had been fully effected in 1978, and was not even called into question until 1984, when a split in the Circuits arose over the severability of the legislative veto provision. See infra note 2. It can hardly be claimed that Westinghouse had a reasonable substantive expectation based on a circuit split that did not arise until well after this lawsuit was commenced, and that was rapidly resolved by Congress.

Westinghouse's obligation under the Equal Pay Act to compensate male and female workers equally for equal work is unmodified by P.L. 98-532. Thus, the "change in law" at issue here may well be different in kind from the change at issue in Bradley. The Supreme Court in Swayne & Hoyt, Ltd. v. United States expressly recognized the significance of such a distinction when it rejected an argument that a retroactive transfer of...