E.E.O.C. v. Hernando Bank, Inc.

• Decision Date: 13 February 1984
• Docket Number: No. 82-4298,82-4298
• Citation: 724 F.2d 1188
• Parties: 34 Fair Empl.Prac.Cas. 15, 26 Wage & Hour Cas. (BN 1071, 33 Empl. Prac. Dec. P 34,154, 100 Lab.Cas. P 34,507, 5 Employee Benefits Ca 2067 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross Appellee, v. The HERNANDO BANK, INC., Defendant-Appellee Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1188

724 F.2d 1188

34 Fair Empl.Prac.Cas. 15,

26 Wage & Hour Cas. (BN 1071,

33 Empl. Prac. Dec. P 34,154,

100 Lab.Cas. P 34,507,

5 Employee Benefits Ca 2067

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross Appellee, v. The HERNANDO BANK, INC., Defendant-Appellee Cross Appellant.

No. 82-4298.

United States Court of Appeals,

Fifth Circuit.

Feb. 13, 1984.

Marcia B. Ruskin, Atty., Susan B. Reilly, E.E.O.C., Washington, D.C., for plaintiff-appellant cross-appellee.

M. Curtiss McKee, Frank M. Holbrook, Jackson, Miss., for defendant-appellee cross-appellant.

Appeals from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, GOLDBERG and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) brought suit against The Hernando Bank, Inc. under the Equal Pay Act, 29 U.S.C. Sec. 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e--2000e-17, alleging that the Bank had discriminated against several of its female employees on the basis of sex. Specifically, the EEOC claimed that the Bank paid female assistant cashiers less than it paid male assistant cashiers for the performance of substantially similar work. The EEOC brought its Equal Pay Act claims under sections 16(c) and 17 of the Fair Labor Standards Act, 29 U.S.C. Secs. 216(c), 217.

The Bank moved for summary judgment on the basis, inter alia, of identical affidavits executed by the three female employees named in the EEOC's initial complaint. The affidavits stated, in pertinent part: "I am not aware of any sex discrimination at Hernando Bank, therefore, I did not request, do not desire, nor have I authorized the Equal Employment Opportunity Commission to represent me in the foregoing civil action."

Relying heavily upon the affidavits, the district court entered a summary judgment dismissing all of the EEOC's claims. The The EEOC appeals the summary judgment only as it applies to the three female assistant cashiers named in its original Equal Pay Act complaint. It does not appeal the Title VII summary judgment. The Bank cross-appeals, claiming that (1) the EEOC had no power to enforce the substantive provisions of the Equal Pay Act, (2) the district court lacked subject matter jurisdiction, and (3) the district court abused its discretion in denying the Bank's request for attorneys' fees.

court denied the Bank's request for attorneys' fees.

This appeal presents several serious questions of far reaching consequences. Concluding that the summary judgment was improvidently granted, we reverse and remand for further proceedings.

Authority of EEOC

A threshold consideration, anticipated in Hernando Bank's brief, is precipitated by the intervening decision of the Supreme Court in INS v. Chadha, --- U.S. ----, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). In Chadha, the Supreme Court held that the one-house congressional veto provision in Sec. 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1254(c)(2), was unconstitutional because it violated the doctrine of separation of powers.

Hernando Bank alleges that Chadha requires us to hold that the EEOC had no authority to enforce the substantive provisions of the Equal Pay Act. Reorganization Plan No. 1 of 1978, 43 Fed.Reg. 19807, 92 Stat. 3781, reprinted in [1978] U.S.Code Cong. & Admin.News 9795-9800, which was promulgated under the authority delegated to the President by the Reorganization Act of 1977, 5 U.S.C. Secs. 901-12, transferred the federal government's authority to enforce the Equal Pay Act from the Secretary of Labor to the EEOC. Hernando Bank argues that the Reorganization Act and all reorganization plans promulgated thereunder must be found invalid because the Reorganization Act contains a legislative veto provision similar to the one struck down in Chadha, see 5 U.S.C. Sec. 906. ¹ We do not agree.

After a close analysis of the language and legislative history of the Reorganization Act, we conclude that its unconstitutional one-house legislative veto provision is severable. We further conclude that the remainder of the Reorganization Act is constitutional and that President Carter's Reorganization Plan No. 1 of 1978 effected a valid transfer of Equal Pay Act enforcement authority from the Secretary of Labor to the EEOC.

The Reorganization Act of 1977 does not contain a severability clause. Although we might infer from such legislative silence that Congress intended the provisions of the statute to be nonseverable, "the ultimate determination of severability will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968). Rather, the court must inquire into whether Congress would have enacted the remainder of the statute in the absence of the invalid provision. Consumer Energy Council v. FERC, 673 F.2d 425 (D.C.Cir.1982). "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 109, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976), quoting Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932).

Congressional intent and purpose are best determined by an analysis of the language of the statute in question. What reasons did Congress assign for its enactment of the Reorganization Act? Congress formally declared The Congress declares that it is the policy of the United States--

the Act's policy and purpose in 5 U.S.C. Sec. 901(a):

(1) to promote the better execution of the laws, the more effective management of the executive branch and of its agencies and functions, and the expeditious administration of the public business;

(2) to reduce expenditures and promote economy to the fullest extent consistent with the efficient operation of the Government;

(3) to increase the efficiency of the operations of the Government to the fullest extent practicable;

(4) to group, coordinate, and consolidate agencies and functions of the Government, as nearly as may be, according to major purposes;

(5) to reduce the number of agencies by consolidating those having similar functions under a single head, and to abolish such agencies or functions thereof as may not be necessary for the efficient conduct of the Government; and

(6) to eliminate overlapping and duplication of effort.

In 5 U.S.C. Sec. 901(b), Congress explained that the policies of Sec. 901(a) could best be accomplished by delegating to the President the legislative authority to reorganize the executive branch. The words of Congress are explicit:

Congress declares that the public interest demands the carrying out of the purposes of subsection (a) of this section and that the purposes may be accomplished in great measure by proceeding under this chapter, and can be accomplished more speedily thereby than by the enactment of specific legislation.

Thus Congress obviously concluded that it would be more efficient and better attuned to the public interest to delegate to the President authority to formulate the specifics of reorganization plans.

The legislative veto provision reflects Congress' desire to vote its approval of any specific reorganization plan. But there is more of relevance to our inquiry in the language of the Act. The Reorganization Act of 1977 is the first such statute in which Congress placed specific limitations upon the authority delegated. Section 905 provides that no plan may create a new executive department, abolish or transfer an executive department or independent regulatory agency, continue an agency or function beyond the time authorized by law, or authorize an agency to exercise a function not already expressly conferred by law. See H.R.Rep. 95-105, reprinted in [1977] U.S.Code Cong. & Admin.News 41.

A review of the Reorganization Act's legislative history demonstrates congressional awareness of the serious constitutional questions raised by the legislative veto. Congressman Robert Drinan doubted the wisdom of bypassing the normal legislative process and, thereby, of risking a judicial declaration of unconstitutionality. He observed that the Reorganization Act "intentionally does not contain a severability clause. The one House veto provision is deemed to be an integral and necessary part of the legislative scheme for reorganization." Id. at 69.

With the exception of Congressman Drinan's comments, nothing in the wording of the Act or in its legislative history indicates that Congress would not have enacted the Reorganization Act without the legislative veto provision or that Congress even considered the issue of severability.

The legislative history is replete with statements calling for efficient change in the organization of the executive branch. The House Report notes that in our constantly shifting society, "[f]unctions change, new methods are developed, bureaucratic structures become obsolete, [and] new laws are passed." Id. at 43-44. Congress expected the Reorganization Act to bring about organizational changes in the executive branch that would result in "cost reduction, improved management and better services to the public." Id. at 43.

It is clear from the legislative history that Congress undertook several steps in its drafting of the Act to "strengthen the role Congress was acutely aware of the ongoing need for flexibility in the reorganization of the executive branch, and it adopted what it perceived to be the most efficient, expeditious means of achieving that end. In so doing, it retained, as the Constitution requires, the ultimate power to establish by legislation the substantive policies of the federal government.

                of Congress and help allay, in part, fears of unconstitutionality."    Id.  The substantive limitations imposed

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