American Federation of Government Employees, AFL-CIO v. Reagan

• Decision Date: 02 December 1986
• Docket Number: 85-2652,AFL-CIO,Nos. 85-2649,s. 85-2649
• Citation: 806 F.2d 1034
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, and National Treasury Employees Union, et al., Appellants, v. Ronald REAGAN, et al., Appellees. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1034

806 F.2d 1034

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, and National Treasury Employees Union, et al., Appellants, v. Ronald REAGAN, et al., Appellees.

Appeal Nos. 85-2649, 85-2652.

United States Court of Appeals Federal Circuit.

Dec. 2, 1986.

Charles A. Hobbie, Deputy Gen. Counsel, American Federation of Government Employees, AFL-CIO, Washington, D.C., argued for appellant AFGE. With him on the brief was Mark D. Roth, Gen. Counsel.

Lois G. Williams, Director of Litigation, Nat. Treasury Employees Union, Washington, D.C., argued for appellant NTEU. With her on the brief was Richard S. Edelman, Asst. Counsel.

Neil H. Koslowe, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on the brief were Richard K. Willard, Asst. Atty. Gen., Joseph Digenova, U.S. Atty. and Anthony J. Steinmeyer, Asst. Director.

Before NIES, Circuit Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.

BISSELL, Circuit Judge.

This is a consolidated appeal from the order of the district court, National Treasury Employees Union v. Reagan, 629 F.Supp. 762 (D.D.C.1985), granting appellees' motion for summary judgment, on the grounds that, after severing an unconstitutional one-House veto provision from the Federal Pay Comparability Act of 1970, Pub.L. No. 91-656, 84 Stat. 1946 (1971) (the Pay Act), the alternative pay plan provision of the Act is not unconstitutional and that the federal pay plan implemented for fiscal year 1984 complied with the terms of the Act. Our jurisdiction of this appeal is derived from 28 U.S.C. Sec. 1295(a)(2) (1982). We affirm.

BACKGROUND

The Pay Act provides a mechanism for the annual adjustment of the pay rates of federal employees in the statutory pay systems for the purpose of achieving pay comparability with employees in the private sector doing substantially equal work. Under Based on the pay agent's report and the recommendations of the Advisory Committee on Federal Pay, the President is to adjust federal employees' pay in accordance with the principles of 5 U.S.C. Sec. 5301(a) (1982) providing for pay comparability with the private sector. The President is required to transmit to Congress a report of the pay adjustment together with the pay agent's report and the report of the Advisory Committee on Federal Pay.

the Act, the President appoints a pay agent who prepares an annual report comparing salaries of federal employees with salaries of private sector employees and recommending appropriate adjustments in federal salaries. The pay agent submits the report to the President and also to the Advisory Committee on Federal Pay. The Advisory Committee on Federal Pay reviews the report and makes additional recommendations to the President.

The Act provides an alternative plan for adjusting statutory pay rates. "If, because of national emergency or economic conditions affecting the general welfare" the President considers it "inappropriate to make the pay adjustment required" by 5 U.S.C. Sec. 5305(a), the President may prepare and transmit to Congress an "alternative plan with respect to a pay adjustment as he considers appropriate, together with the reasons therefor, in lieu of the pay adjustments required" by section 5305(a). 5 U.S.C. Sec. 5305(c)(1).

The Act also provides for a legislative veto of the alternative plan. The alternative plan submitted by the President becomes effective on the first day of the first applicable pay period commencing on or after October 1 of the applicable year and continues in effect unless, before the end of the first period of 30 calendar days of continuous session of Congress after the date the plan is transmitted, either House adopts a resolution disapproving it. 5 U.S.C. Sec. 5305(c)(2). If either House adopts a resolution disapproving the alternative plan, the Act requires the President to adjust pay rates in accordance with section 5305(a)(2) and (3) "effective as of the beginning of the first applicable pay period commencing on or after the date on which the resolution is adopted, or on or after October 1, whichever is later." 5 U.S.C. Sec. 5305(m).

For fiscal years 1980, 1981, 1983, and 1985, the President submitted to Congress alternative plans proposing increases less than those recommended by his pay agent. Neither House of Congress disapproved and in each year the pay increase proposed by the President became effective. In fiscal year 1982, Congress enacted the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, Sec. 1701, 95 Stat. 357, 753, section 1701(a) of which provided for a cap of 4.8 percent on the adjustment of statutory pay rates under 5 U.S.C. Sec. 5305. In fiscal year 1984, Congress enacted the Omnibus Budget Reconciliation Act of 1983, Pub.L. No. 98-270, Sec. 202, 98 Stat. 157, 158 (1984), section 202(a)(1) of which provided that the adjustment to statutory pay rates under 5 U.S.C. Sec. 5305 would be 4 percent.

Appellants American Federation of Government Employees, AFL-CIO (AFGE) and National Treasury Employees Union (NTEU) are unincorporated associations based in Washington, D.C. AFGE and NTEU are the exclusive bargaining representatives of federal employees whose pay was adjusted under alternative pay plans submitted by the President in 1980, 1981, 1983, and 1985. The other named appellants are members of AFGE and NTEU who reside in Washington, D.C.

This matter came before the district court on the defendants' motion for judgment on the pleadings in NTEU v. Reagan and on cross motions for summary judgment in both cases. The district court denied the defendants' motion for judgment on the pleadings, denied the plaintiffs' motions for summary judgment, and granted the defendants' motions for summary judgment in both cases.

All parties agreed that under Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), the one-House veto provision of the Act was unconstitutional.

The district court concluded that the one-House veto provision was severable from the alternative pay plan provision because the provisions of the Act remaining after severance were fully operable as law, and the legislative history of the Pay Act did not demonstrate that Congress would not have enacted the alternative pay plan procedure without the one-House veto provision. The district court concluded that the alternative pay plan, absent the one-House veto provision, was not an unconstitutional delegation of legislative authority. The district court also rejected AFGE's argument that the 1985 alternative pay plan violated 5 U.S.C. Sec. 5305(c)(2) because the plan increased pay on January 1, 1985, rather than in October 1984.

ISSUES

The issues presented on appeal are:

(1) Whether the Pay Act, without a one-House veto provision, articulates policies or standards sufficient to confine the President's discretion in prescribing an alternative pay plan.

(2) Whether the legislative history of the Pay Act evidences that Congress would not have delegated to the President the authority to prescribe an alternative plan for adjusting federal employees' pay without providing for a one-House veto of the alternative plan.

(3) Whether the alternative pay plan for fiscal year 1984 violated the Pay Act by not implementing a pay increase until later than the first pay period after October 1, 1984.

OPINION

I

All parties agree that in light of the Chadha decision, the one-House veto provision contained in section 5305(c)(2) is unconstitutional. Based on Chadha, appellants argue that upon severance of the one-House veto provision from the Act, the alternative pay plan provision must be severed as well. They argue that, without the one-House veto provision, the alternative pay plan cannot stand because it would improperly delegate legislative authority to the President and would violate congressional intent. Appellants ask this court to declare the alternative pay plan unconstitutional and to make the decision retroactive so that government employees covered by the Pay Act may receive the full comparability pay increases recommended by the pay agent for fiscal years 1980, 1981, 1983, and 1985.

In Chadha, the Supreme Court held one-House vetoes unconstitutional. The Court considered whether it could sever the offending one-House veto provision of the Immigration and Nationality Act from the remainder of the Act. The Court stated as the general rule of severability that "invalid portions of a statute are to be severed '[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.' " Chadha, 462 U.S. at 931-32, 103 S.Ct. at 2773-74 (quoting Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976)). The Court went on to explain that: "[a] provision is further presumed severable if what remains after severance 'is fully operative as a law.' " Id. at 934, 103 S.Ct. at 2775 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932)).

Since the one-House veto applies only to the alternative pay plan provision and not to the remainder of the Act we must consider whether the alternative pay plan, stripped of the one-House veto, is within Congress' power to enact. If it is not, we need proceed no further. We need not address the question whether the remainder of the Act is within Congress' power to enact because the one-House veto does not apply to it and because neither party disputes the legality of any provision of the Act other than the one-House veto and the alternative pay plan provision.

The appellants argue that, without the one-House veto, the alternative pay plan is an improper delegation of legislative power to the President and, therefore, that the alternative pay plan is beyond Congress' power to enact. The delegation doctrine is an aspect of the constitutional principle of...