Alaska Airlines, Inc. v. Donovan, Civ. A. No. 84-0485.

Decision Date18 May 1984
Docket NumberCiv. A. No. 84-0485.
Citation594 F. Supp. 92
PartiesALASKA AIRLINES, INC., et al., Plaintiffs, v. Raymond J. DONOVAN, et al., Defendants; Air Line Pilots Association, International; Association of Flight Attendants; and Brotherhood of Railway and Airline Clerks, etc., Intervening Defendants.
CourtU.S. District Court — District of Columbia

William T. Coleman, Jr., Richard C. Warmer, Donald T. Bliss, John Beisner, Washington, D.C., for plaintiffs.

Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM

GESELL, District Judge.

This case challenges the validity of § 43 of the Airline Deregulation Act (ADA), Pub.L. No. 95-504, 92 Stat. 1705 (1978), as well as the validity of regulations implementing § 43. The federal government undertook extensive control over commercial airline operations beginning in the 1930's. The Civil Aeronautics Act of 1938 and its successor, the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., granted to the Civil Aeronautics Board (CAB) broad powers to regulate nearly every aspect of the industry. This structure was dramatically altered in 1978, however, with the passage of the Airline Deregulation Act. In the sweeping provisions of this Act the CAB was directed to take steps to gradually lessen and finally abolish nearly all economic regulation of the airline industry; indeed, the Act provided for the CAB itself to go out of existence by 1985.1

In anticipation of the upheaval and possible economic hardship which might result from deregulation, Congress enacted as § 43 of the Act an "Employee Protection Program" (EPP). This provision had two closely linked components: an "assistance payments" program by which the Secretary of Labor, "subject to such amounts as are provided in appropriations Acts," would make monthly assistance payments to certain "protected" airline employees laid off as a result of deregulation, and a "first hire" program by which carriers certificated by the CAB as of a particular date would be required to hire "protected" employees laid off by other carriers before hiring other individuals not previously furloughed by the hiring airline itself. Many aspects of these programs were left unresolved by the terms of § 43.

The Secretary of Labor was directed by § 43(f) to issue the regulations necessary to carry out the Employee Protection Program within six months, subject to legislative veto before they became effective. Despite the six-month deadline, final regulations were not proposed for the "first hire" program until 1983. Airline Employee Protection Program, 48 Fed.Reg. 52,854 (Nov. 22, 1983). These regulations are now scheduled to become effective immediately. The Secretary has yet to issue regulations covering the assistance payments program, which Congress has never funded.

Plaintiffs, fifteen airlines subject to these new regulations, challenge the validity of both the regulations and of § 43 itself. Several airline employee unions have intervened as defendants or filed briefs amici curiae. After full briefing and oral argument, cross-motions to dismiss or for summary judgment are now before the Court. Because the Court concludes that § 43 is unconstitutional in its entirety due to its special provision for a legislative veto, summary judgment must be granted for plaintiffs.2

Section 43(f) states:

(f) Rules and Regulations. (1) The Secretary may issue, amend, and repeal such rules and regulations as may be necessary for the administration of this section.
(2) The rule containing the guidelines which is required to be promulgated pursuant to subsection (b) of this section and any other rules or regulations which the Secretary deems necessary to carry out this section shall be promulgated within six months after the date of enactment of this section.
(3) 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 Houses stating that the Congress approves of them.
(4) For purposes of this subsection, the term "legislative day" means a calendar day on which both Houses of Congress are in session.

As the government concedes, the legislative veto provision found in § 43(f)(3) is unconstitutional under the Supreme Court's holding in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). The issue therefore is whether this defective portion of § 43 can be "severed" from the rest of that section and the remainder enforced as valid law, or whether the legislative veto provision is so fundamentally a part of that provision that it unconstitutionally infects the entire section.

The proper analysis to be followed in determining the issue of severability is well established. "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independent of that which is not, the invalid part may be dropped if what is left is fully operative law." Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932). See also Chadha, 103 S.Ct. at 2774. "The crucial inquiry is whether Congress would have enacted other portions of the statute in the absence of the invalidated provision." American Federation of Government Employees v. Pierce, 697 F.2d 303, 307 (D.C.Cir.1982), quoting Consumer Energy Council of America v. FERC, 673 F.2d 425, 442 (D.C.Cir.1982), aff'd mem., ___ U.S. ___, 103 S.Ct. 3556, 77 L.Ed. 1402 (1983).3

Several aspects of § 43 lead the Court to conclude that Congress considered the legislative veto provision to be integral to the EPP and that Congress would not have enacted § 43 in its present form without such a provision. First, and most significant, § 43 is the only section in the entire Airline Deregulation Act where a legislative veto provision appears. Unlike with many other statutes, the Court is faced here not with a legislative veto provision which applies to an entire statute, but with a veto provision applicable to one, and only one, particular section of a long and comprehensive piece of legislation. It is apparent from the face of the statute, therefore, that Congress enacted § 43 with the understanding firmly in mind that regulations issued by the Secretary would be subject to legislative veto.

The importance to Congress of the legislative veto provision of § 43 is reinforced by the language of that section. Subsections 43(f)(3) and (4) provide very explicit procedures under which proposed regulations are subject to congressional review before they can become effective. Final regulations must be submitted for review to specific congressional committees 30 days before they are issued, and once issued do not become effective until both Houses of Congress have adopted resolutions approving the regulations or 60 "legislative" days have passed without either House adopting a resolution of disapproval. These elaborate procedures are, in fact, apparently unique among the nearly 200 statutory legislative veto provisions enacted by Congress in the extent to which they ensure congressional control over the regulatory process.4

The language of § 43's substantive provisions and the circumstances in which the ADA was enacted also support the view that Congress intended the veto provision to be integral to § 43. Both the assistance payment and first hire provisions provide the Secretary with only general guidance in determining how those programs should be structured and operated. Moreover, as the...

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6 cases
  • Long v. Trans World Airlines, Inc.
    • United States
    • U.S. District Court — Northern District of Illinois
    • January 26, 1989
    ...was invalidated by the district court in Alaska Airlines I because of a legislative veto provision in the Act. Alaska Airlines, Inc. v. Donovan, 594 F.Supp. 92, 96 (D.D.C.1984). That decision was reversed by the court of appeals on July 16, 1985. Alaska Airlines, Inc. v. Donovan, 766 F.2d 1......
  • Alaska Airlines, Inc v. Brock
    • United States
    • U.S. Supreme Court
    • March 25, 1987
    ...granted summary judgment for petitioners, striking down the entire EPP, but leaving the remainder of the Act intact. Alaska Airlines, Inc. v. Donovan, 594 F.Supp. 92 (1984). It held the legislative-veto provision unconstitutional and ruled that it could not be severed from the EPP. Responde......
  • Alaska Airlines, Inc. v. Donovan, s. 84-5442
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 16, 1985
    ...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......
  • Air Line Pilots Ass'n, Intern. v. C.A.B.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 31, 1984
    ...340-41 (D.C.Cir.1980).31 627 F.2d at 324-25.32 Letter to the Court from counsel for CAB, filed 15 October 1984.33 Alaska Air Lines, Inc. v. Donovan, 594 F.Supp. 92 (D.D.C.1984). That decision is now on appeal before this Court.34 49 U.S.C. Sec. 1552(i) (1982).35 340 U.S. 15, 71 S.Ct. 93, 95......
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