Alaska Airlines, Inc. v. Donovan, s. 84-5442
| Decision Date | 16 July 1985 |
| Docket Number | 84-5467,84-5468 and 84-5470,Nos. 84-5442,s. 84-5442 |
| Citation | 247 U.S.App.D.C. 132,766 F.2d 1550 |
| Parties | 119 L.R.R.M. (BNA) 3383, 247 U.S.App.D.C. 132, 54 USLW 2073 ALASKA AIRLINES, INC., et al., v. Raymond J. DONOVAN, individually and as Secretary of Labor, et al., v. BROTHERHOOD of RAILWAY and AIRLINE CLERKS, et al., Appellants. ALASKA AIRLINES, INC., et al., v. Raymond J. DONOVAN, individually and as Secretary of Labor, et al., Association of Flight Attendants, Appellant. ALASKA AIRLINES, INC., et al., v. Raymond J. DONOVAN, individually and as Secretary of Labor, et al., Air Line Pilots Association, International, Appellant. ALASKA AIRLINES, INC., et al., v. Raymond J. DONOVAN, individually and as Secretary of Labor, et al., Appellants, Air Line Pilots Association, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action No. 84-00485).
Douglas Letter, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellant Secretary of Labor in No. 84-5470.
William J. Birney, Washington, D.C., with whom William G. Mahoney, John O'B. Clarke, Jr. and Clinton J. Miller, III, Washington, D.C., were on brief, for appellants Broth. of Ry. and Airline Clerks, et al.
Eugene B. Granof, Washington, D.C., with whom Gary Green, Washington, D.C., was on brief, for appellant Air Line Pilots Ass'n in No. 84-5468.
Matthew Finucane, Washington, D.C., was on brief, for appellant Ass'n of Flight Attendants.
William T. Coleman, Jr., Washington, D.C., with whom Richard C. Warmer, Donald T. Bliss and John H. Beisner, Washington, D.C., were on brief, for appellees Alaska Airlines, Inc., et al.
Before TAMM, GINSBURG and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
This case raises a question left in the wake of Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), invalidating as violative of separation of powers principles the device of the legislative veto of administrative regulations. The context is Congress' pre-Chadha deregulation of the airline industry. The specific issue is whether an unconstitutional legislative veto provision contained in section 43(f) of the Airline Deregulation Act of 1978, Pub.L. No. 95-504, Sec. 43(f), 92 Stat. 1705, 1750 (1978), is severable from the remainder of the airline employee protection provisions of that statute. We conclude that the veto provision should be severed; we therefore reverse the judgment of the District Court, 594 F.Supp. 92, which held the veto provision inseverable. Inasmuch as the District Court did not have occasion to address the other issues raised by the airlines, we remand the case for further consideration.
The Airline Deregulation Act of 1978 contains an employee protection program for the benefit of employees displaced through the impact of deregulation on the shifting fortunes of individual air carriers. See id. Sec. 43 at 92 Stat. 1750, codified at 49 U.S.C. app. Sec. 1552 (1982). As originally crafted, the program contained two prongs. The first provided monetary support and assistance in relocation to individuals who had lost their employment or suffered a diminution in compensation as a result of a qualifying industry dislocation. See 49 U.S.C. app. Sec. 1552(a)-(c). While that provision is still on the books, Congress has never funded its implementation; inasmuch as that provision's operation was expressly made subject to Congress' appropriation of funds for financial assistance, see 49 U.S.C. app. Sec. 1552(a), this portion of the employee protection program is inoperative and, accordingly, no implementing regulations have been promulgated under it.
The employee protection program's second prong triggered the litigation now before us. That portion consists of a "first hire" requirement. That is to say, a person who had been employed for at least four years prior to October 24, 1978 (the effective date of the Act) by an air carrier holding a certificate under the pre-deregulation regime and who was furloughed or terminated (other than for cause) prior to the Act's effective date had a first right of hire by other pre-deregulation certificated air carriers. See 49 U.S.C. app. Sec. 1552(d), (h)(1). This right of first hire was without regard to age but applied only to airlines hiring within the individual's occupational specialty; moreover, airlines could lawfully recall their own furloughed employees before hiring those displaced from other carriers. See 49 U.S.C. app. Sec. 1552(d).
The Secretary of Labor was granted authority to issue, amend and repeal rules and regulations necessary to administer the employee protection plan. See 49 U.S.C. app. Sec. 1552(f)(1), (h)(3). However, that authority was limited by the following provisions:
The Secretary shall not issue any rule or regulation 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 stating that that House disapproves such rules or regulations, except that such rules or regulations may become effective on the date, during such 60-day period, that a resolution has been adopted by both House stating that the Congress approves of them.
49 U.S.C. app. Sec. 1552(f)(3). Exceptionally, this section combines the "report and wait" provision (found in the first sentence of the quoted language) with a one-House legislative veto 1 (set forth in the second sentence).
Pursuant to his statutory authority, the Secretary of Labor published regulations for the administration of both prongs of the protection plan in March 1979. See 44 Fed.Reg. 19,146 (1979). A revision of the proposed regulations, covering only the first hire provisions, was published in September 1982. See 47 Fed.Reg. 41,304 (1982). Final regulations were published on November 22, 1983, see 48 Fed.Reg. 52,854 (1983), were duly transmitted to Congress, and were to become effective after sixty legislative days.
In February 1984, however, before the regulations became effective, Alaska Airlines, Inc. and various other airlines filed a complaint in United States District Court for the District of Columbia. They alleged that the first hire provisions of the Act were invalid because of the inclusion of an unconstitutional legislative veto in section 43(f)(3). In addition, they challenged the regulations themselves as violative of the Due Process Clause and, on non-constitutional grounds, as arbitrary and capricious, an abuse of agency discretion and otherwise not in accordance with law. The Department of Labor conceded below, see Alaska Airlines, Inc. v. Donovan, 594 F.Supp. 92, 94 (D.D.C.1984), and does not contest here, that the legislative veto provision is unconstitutional under Chadha. The Government argued, however, that the invalid veto provision is severable from the remainder of the Act and that the remainder of the employee protection plan, and the rules and regulations adopted thereunder, are lawful and valid.
Plaintiffs-appellees moved for summary judgment, and the Department of Labor moved to dismiss or for an order affirming the validity of the regulations. On May 17, 1984, the day the regulations were to become effective, the District Court granted the airlines' motion, holding that section 43 was invalid in its entirety due to the inclusion of what the court deemed to be an inseverable legislative veto provision. The court's opinion issued the following day. Neither the order nor the opinion addressed the other issues raised in the airlines' complaint.
Before reaching the principal issue presented on this appeal, namely the severability of the legislative veto from the remainder of section 43 of the Airline Deregulation Act, several preliminary issues must be addressed.
The first question is whether we have jurisdiction over this appeal. The issue is raised only in a footnote in the Alaska Airlines Brief, see Appellees' Brief at 9 n. *, where appellees question, in passing, whether jurisdiction in fact lies in this court; because of the obvious importance of that question, the subject merits our analysis at the outset. A basic jurisdictional provision of Title 28 is that the Supreme Court, not the Courts of Appeals, is vested with jurisdiction over appeals from District Court decisions holding an Act of Congress unconstitutional in any civil action in which the United States, or an agency, official or employee thereof, is a party. 28 U.S.C. Sec. 1252 (1982). In keeping with this provision, the several Courts of Appeals enjoy jurisdiction over appeals from final decisions of the district courts "except where a direct review may be had in the Supreme Court." 28 U.S.C. Sec. 1291 (1982) (emphasis added). The airlines suggest that since the District Court held the entire section unconstitutional, exclusive review of that judgment should lie in the Supreme Court.
Those two Title 28 provisions might be read to support the airlines' position. In fact, the appeal in this action was originally filed in the Supreme Court, but due to a recent Supreme Court decision was thereafter refiled in this court. See Appellant Secretary of Labor's Brief at 10 n. 5. To determine whether the shift in...
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