Muller Optical Co. v. E.E.O.C., No. 83-5889

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before EDWARDS and WELLFORD, Circuit Judges, and JOINER; JOINER; The Equal Employment Opportunity Coordinating Council includes representatives from EEOC, Labor
• Citation: 743 F.2d 380
• Parties: 35 Fair Empl.Prac.Cas. 1147, 35 Empl. Prac. Dec. P 34,632, 5 Employee Benefits Ca 2098 MULLER OPTICAL COMPANY and Robert E. Long, Plaintiffs-Appellants, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee.
• Docket Number: No. 83-5889
• Decision Date: 05 November 1984

Page 380

743 F.2d 380 35 Fair Empl.Prac.Cas. 1147,
35 Empl. Prac. Dec. P 34,632,
5 Employee Benefits Ca 2098 MULLER OPTICAL COMPANY and Robert E. Long, Plaintiffs-Appellants,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. No. 83-5889. United States Court of Appeals,
Sixth Circuit. Argued April 30, 1984.
Decided Sept. 4, 1984.
Rehearing and Rehearing En Banc Denied Nov. 5, 1984.

Page 381

Stephen H. Biller (argued), Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, P.C., Stephen D. Wakefield, Memphis, Tenn., for plaintiffs-appellants.

Lawrence J. Kamenetsky, Zelma Phillips Brown, E.E.O.C., W. Hickman Ewing, U.S. Atty., Vivian Donelson, Memphis, Tenn., for defendant-appellee.

Herschel L. Abbott, Jr., H. Mark Adams, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., Rodger A. Kershner, Detroit, Mich., Joseph M. Wells, Marjorie Nemzura, Lombard, Ill., for amicus curiae, ANR Pipeline Company and Natural Gas Pipeline Company of America.

Before EDWARDS and WELLFORD, Circuit Judges, and JOINER, District Judge. ^*

JOINER, District Judge.

The issue in this appeal is whether the existence of an unexercised one-House legislative veto provision in the Reorganization Act of 1977 prevents the Equal Employment Opportunity Commission (EEOC) in 1982 from issuing and enforcing an administrative subpoena ordering the appellant to produce records in an age discrimination investigation, the enforcement authority under the Age Discrimination in Employment Act (ADEA) having been transferred from the Department of Labor to the EEOC in 1978 pursuant to the Reorganization Act.

For the reasons stated in this opinion, we hold that the transfer of enforcement authority from the Department of Labor to the EEOC was valid and the EEOC has the power to issue and enforce its administrative subpoena.

This action was brought by plaintiffs Muller Optical and its president, Robert E. Long, seeking a temporary restraining order or a preliminary injunction prohibiting the defendant, EEOC, from requiring Long to appear at a deposition and to produce certain documents pursuant to an administrative subpoena. The EEOC had issued the subpoena in connection with its attempts to investigate charges of age discrimination filed by an employee discharged by Muller Optical. Muller Optical had resisted all efforts by the EEOC to investigate the charge, making the subpoena necessary.

The plaintiffs argued that the EEOC lacked authority to investigate the age discrimination charges because the Reorganization Act of 1977, which authorized the transfer of authority to enforce the ADEA, was invalid because it contained a one-House legislative veto found unconstitutional by the Supreme Court in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).

The District court denied the request for a preliminary injunction, holding that the offending provision was severable from the rest of the act and, in the alternative, that subsequent acts of Congress had ratified

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the transfer of enforcement authority under the ADEA from the Department of Labor to the EEOC. The case is now on appeal from that decision.

As a preliminary matter, the EEOC argues that Muller Optical lacks standing to bring this suit because it can demonstrate no injury. The claim is that Muller Optical suffers no more injury if it is investigated by the EEOC than it would if investigated by the Department of Labor. The district court rejected this argument as have other courts presented with this issue. Muller Optical Company v. EEOC, 574 F.Supp. 946 (W.D.Tenn.1983); EEOC v. Allstate Insurance Company, 570 F.Supp. 1224 (S.D.Miss.1983). See also, EEOC v. Chrysler Corp., No. 81-72347, slip op. at 8-10 (E.D.Mich. Jan. 23, 1984). In this case the plaintiffs have been subpoenaed by the EEOC and ordered to produce documents. The plaintiffs claim that the EEOC lacks authority to investigate the age discrimination claims and, therefore, lacks authority to issue the subpoena. The plaintiffs have alleged sufficient injury to meet the requirements for standing and the district court was correct in rejecting this frivolous argument. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102, 752, 758, 70 L.Ed.2d 700 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).

The Court has entertained and granted motions on behalf of Chrysler Corporation and ANR Pipeline Company and Natural Gas Pipeline Company of America to file briefs amici curiae. The material provided by counsel has been of assistance to the Court in resolving this matter.

LEGISLATIVE HISTORY

Age Discrimination in Employment Act

Congress passed the Age Discrimination in Employment Act in 1967 and placed enforcement authority under the Department of Labor. The Secretary of Labor was given the authority to appoint agents and retain employees necessary to enforce the act, to issue necessary rules and regulations, to make investigations and to enforce the provisions of the act in accordance with the powers, remedies and procedures contained in designated sections of the Fair Labor Standards Act, 29 U.S.C. Secs. 625, 626, and 628.

The Reorganization Act of 1977

In 1977 Congress passed the Reorganization Act, authorizing the President to reorganize the executive branch and its agencies to increase efficiency and to promote the better execution of the laws. 5 U.S.C. Sec. 901. Section 901 describes the broad policies of the Reorganization Act; sections 903 and 904 describe the methods by which the reorganization might be accomplished; and section 905 outlines the limitations on the reorganization power. The President was required to transmit each reorganization plan to both Houses of Congress, 5 U.S.C. Sec. 903, and the plan would become effective after the passage of 60 days. However, the statute permitted either House of Congress to prevent the plan from taking effect.

A] reorganization plan is effective at the end of the first period of sixty calendar days of continuous session of Congress after the date on which the plan is transmitted to it unless, between the date of transmittal and the end of the sixty day period, either House passes a resolution stating in substance that the House does not favor the reorganization plan

5 U.S.C. Sec. 906. The Reorganization Act also provided that a resolution disapproving each reorganization plan would be automatically introduced in the House of Representatives and in the Senate on the first day of session following transmittal of the plan. 5 U.S.C. Secs. 909-10. The plan would be reviewed by the Committee on Governmental Affairs of the Senate and by the Committee on Government Operations of the House and reported out of committee within 45 days. If the plan was not reported within 45 days, it would be placed on the

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calendar of the appropriate House for consideration. 5 U.S.C. Sec. 911.

Reorganization Plan No. 1 of 1978

Reorganization Plan No. 1 of 1978 transferred the authority to enforce the ADEA to the EEOC. 43 F.R. 19807, 92 Stat. 3781, reprinted at 5 U.S.C.App. at 111 (Supp.1984). ¹ The transfer of authority under the ADEA was complete and did not alter the substance of the enforcement authority in any way. The power of government over individuals and corporations was not enlarged nor was it diminished by the reorganization. The effect was merely to transfer the authority provided under the ADEA from the Labor Department to the EEOC.

Neither House of Congress exercised the legislative veto provision contained in Sec. 906 with respect to the Reorganization Plan No. 1 of 1978. The House rejected the resolution of disapproval by a vote of 356 to 39. See 124 Cong.Rec. 1136-37. The Senate Committee on Government Operations unfavorably reported a similar resolution of disapproval by a unanimous vote and, by unanimous consent, the Senate indefinitely postponed consideration of the resolution. See 124 Cong.Rec. 10,912, 12,888. The actions occurred after lengthy hearings by both committees assigned to review the Reorganization Plan of 1978. ² The transfer of authority to enforce the ADEA was implemented on July 1, 1979, pursuant to the Reorganization Act and the Reorganization Plan No. 1 of 1978, and the EEOC has enforced the Act since that date. See Executive Order No. 12,144, 44 Fed.Reg. 37, 193 (June 26, 1979).

Post Transfer Congressional Action

Since the transfer was effectuated, Congress has appropriated funds requested by the EEOC for the functions transferred. The appropriation bills for fiscal years 1981 and 1983 contain citations to both the Equal Pay Act and the Age Discrimination in Employment Act in connection with the appropriation made to the EEOC. ³ Hearings held in connection with budget submissions on behalf of the EEOC contain testimony referencing the enforcement of the Equal Pay Act and ADEA as an EEOC function. ⁴

The Civil Service Reform Act of 1978 contains a specific reference to Reorganization Plans 1 and 2 of 1978, stating that any provision of either plan which was inconsistent with the Act was superceded. 5 U.S.C. Sec. 1101 note at 93 (Supp.1984). Nothing in the Civil Service Reform Act of 1978 was inconsistent with the transfer of ADEA enforcement authority contained in Reorganization Plan No. 1 of 1978.

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THE CHADHA DECISION

In Immigration and Naturalization Service v. Chadha, supra, the Supreme Court held that the exercise of a one-House veto, authorized by statute, was unconstitutional because it enabled Congress to act in a legislative capacity without complying with the procedural requirements of Article I. Chadha addressed the one-House veto provision contained in Sec. 244(c)(2) of the Immigration and Nationality Act, 8...