EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, APPELLANT V. MARTIN INDUSTRIES, INC. No. 83-1833 In the Supreme Court of the United States October Term, 1983 On Appeal from the United States District Court for the Northern District of Alabama JURISDICTIONAL STATEMENT TABLE OF CONTENTS Opinion below Jurisdiction Statutory and reorganization plan provisions involved Statement This Court does not have jurisdiction over the appeal under 28 U.S.C. 1252 The question is substantial Conclusion Appendix OPINION BELOW The opinion of the district court (App., infra, 1a-3a) is reported at 581 F. Supp. 1029. JURISDICTION The order of the district court granting appellee's motion for summary judgment was entered on February 24, 1984 (App., infra, 4a-5a). Motions to alter or amend the judgment were filed by the Equal Employment Opportunity Commission and by appellee on March 2 and 5, 1984, respectively. The district court denied those motions on March 5 and 6, 1984. A notice of appeal to this Court was filed by the Commission on March 20, 1984 (App., infra, 6a-7a), and a notice of cross-appeal was filed by appellee on March 30, 1984. If this Court has jurisdiction in this case, it would be under 28 U.S.C. 1252. However, we do not believe the Court has jurisdiction under 28 U.S.C. 1252 because the Commission does not seek review of the district court's holding that the legislative veto provision of the Reorganization Act of 1977 is unconstitutional. Thus, this appeal, like the Commission's identical appeal in EEOC v. Allstate Insurance Co., No. 83-1021, is taken for protective purposes only. The Commission also has filed a notice of appeal to the United States Court of Appeals for the Eleventh Circuit, under 28 U.S.C. 1291. STATUTORY AND REORGANIZATION PLAN PROVISIONS INVOLVED The relevant provisions of the Reorganization Act of 1977, 5 U.S.C. 901 et seq.; the Equal Pay Act of 1963, Pub. L. No. 88-38, Section 3, 77 Stat. 56, adding Section 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206(d); Sections 16(c) and 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. 216(c) and 217; and Reorg. Plan No. 1 of 1978, 3 C.F.R. 321 (1979), are set forth in the Commission's Jurisdictional Statement Appendix at 22a-30a, EEOC v. Allstate Insurance Co., No. 83-1021. QUESTIONS PRESENTED 1. Whether the Court has jurisdiction over this appeal under 28 U.S.C. 1252 even though the Equal Employment Opportunity Commission does not seek review of the district court's holding that the one-House legislative veto provision of the Reorganization Act of 1977, 5 U.S.C. 906, is unconstitutional, but instead seeks review only of the relief ordered by the district court. 2. Whether the district court correctly held that, because the legislative veto provision in the Reorganization Act is unconstitutional, the Commission cannot exercise the authority transferred to it by Reorganization Plan No. 1 of 1978, 3 C.F.R. 321 (1979), to enforce the Equal Pay Act of 1963, 29 U.S.C. 206(d). STATEMENT This action was filed by the Equal Employment Opportunity Commission in the United States District Court for the Northern District of Alabama on September 29, 1983, pursuant to Sections 16(c) and 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. 216(c) and 217. The Commission's complaint alleges that appellee Martin Industries, Inc., is violating Section 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206(d) -- commonly known as the Equal Pay Act -- by paying lower wages to female employees than it pays to male employees performing equal work (Comp. Paragraph 7). App., infra, 2a. When the Equal Pay Act was first enacted in 1963 (Pub. L. No. 88-38, 77 Stat. 56), enforcement authority was vested in the Secretary of Labor, who is responsible for administering the Fair Labor Standards Act generally. See 29 U.S.C. 206(d)(3), 216(c) and 217. However, responsibility for administration and enforcement of the Equal Pay Act was transferred from the Secretary of Labor to the Commission by Reorganization Plan No. 1 of 1978, 3 C.F.R. 321 (1979), which also transferred other equal employment opportunity functions to the Commission. See J.S. 3-4, EEOC v. Allstate Insurance Co., supra. On February 2, 1984, appellee moved for summary judgment, contending that the transfer of authority to the Commission to enforce the Equal Pay Act was invalid because the statutory authority for the Reorganization Plan's promulgation -- the Reorganization Act of 1977, U.S.C. 901 et seq. -- contained an unconstitutional legislative veto provision (5 U.S.C. 906). The Commission conceded that the legislative veto provision in the Reorganization Act was unconstitutional in light of this Court's decision in INS v. Chadha, No. 80-1832 (June 23, 1983). It contended, however, that dismissal of the Commission's enforcement act was improper because the one-House veto provision is severable from the remainder of the Reorganization Act, because the decision in Chadha should not be applied retroactively to invalidate plans that were not vetoed and therefore went into effect prior to the date of the Chadha decision, and because Congress in any event had ratified the transfer of authority to the Commission. On February 23, 1984, while appellee's motion for summary judgment was still pending, the Commission and appellee filed with the district court a proposed consent decree that provided for backpay for three employees and obligated appellee to comply with the requirements of the Equal Pay Act in the future (App., infra, 1a). The court refused to approve the decree because, in its view, the Commission was without "authority to bring this action" (id. at 2a). Instead, relying on EEOC v. Allstate Insurance Co., 570 F. Supp. 1224 (S.D. Miss. 1983), direct appeal pending, No. 83-1021, the court granted appellee's previously filed motion for summary judgment on the ground that the transfer of Equal Pay Act enforcment authority to the Commission was invalid because of the legislative veto provision in the Reorganization Act. THIS COURT DOES NOT HAVE JURISDICTION OVER THE APPEAL UNDER 28 U.S.C. 1252 This direct appeal under 28 U.S.C. 1252 has been docketed for protective purposes only, pending the Court's disposition of the Commission's direct appeal in EEOC v. Allstate Insurance Co., No. 83-1021, which presents identical questions concerning this Court's jurisdiction under 28 U.S.C. 1252 and the Commission's authority to enforce the Equal Pay Act. In the Jurisdictional Statement in Allstate (at 6-8, 17), /1/ we argue that this Court does not have jurisdiction over the direct appeal because the Commission does not seek review of the district court's holding that the legislative veto provision of the Reorganization Act is unconstitutional, but instead seeks review of other issues. Those other issues are: whether the legislative veto provision is severable from the remainder of the Reorganization Act; whether Congress intended when it passed the Reorganization Act in 1977 that reorganization plans that were not vetoed by one House of Congress should be invalidate if the latent legislative veto authority in the Act subsequently was held unconstitutional; whether this Court's decision in Chadha should be applied retroactively to invalidate completed reorganization plans; and whether Congress in any event has ratified the transfer of enforcement authority to the Commission (see 83-1021 J.S. 8-17). We suggested when we filed the Jurisdictional Statement in Allstate (at 8, 17) that the Court hold that Jurisdictional Statement Ending the Court's decision in Heckler v. Edwards, No. 82-874, which also presented the question whether this Court has jurisdiction of an appeal under 28 U.S.C. 1252 where the appellant does not seek review of the district court's holding that a provision in an Act of Congress is unconstitutional. On March 21, 1984, the Court rendered its decision in Heckler v. Edwards, concluding that a direct appeal does not lie under 28 U.S.C. 1252 "unless the holding of federal statutory unconstitutionality is in issue" (slip op. 5). Because the Commission's appeal in the instant case does not place in issue the district court's holding that the legislative veto provision of the Reorganization Act is unconstitutional, it follows from Edwards that the Court does not have jurisdiction over this appeal under 28 U.S.C. 1252. However, because the Court has not yet disposed of the Commission's appeal in identical circumstances in Allstate, we are docketing this appeal as a protective matter. THE QUESTION IS SUBSTANTIAL If the Court nevertheless determines that it has jurisdiction over this appeal, we submit, for the reasons stated in our Jurisdictional Statement in Allstate (at 8-16), that the district court erred in concluding that the Commission does not have authority to enforce the Equal Pay Act. We note in this connection that the overwhelming majority of lower courts now have agreed that the holding by the district court in Allstate is erroneous and that the Commission does possess the authority to enforce the Equal Pay Act and the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. /2/ CONCLUSION The Jurisdictional Statement in this case should be held pending the Court's disposition of the appeal in EEOC v. Allstate Insurance Co., No. 83-1021, and then be disposed of in light of the Court's action in Allstate. Respectfully submitted. REX E. LEE Solicitor General DAVID L. SLATE General Counsel Equal Employment Opportunity Commission MAY 1984 /1/ We are furnishing counsel for appellee with copies of the Jurisdictional Statement, Reply Brief, and Supplemental Memorandum in Allstate. /2/ In addition to the Fifth Circuit's decision in EEOC v. Hernando Bank, Inc., 724 F.2d 1188 (1984), which was discussed in our Supplemental Memorandum in Allstate, and the seven district court decisions mentioned in our Reply Brief in Allstate (at 4 n.2), there now have been 15 other district court decisions sustaining the Commission's authority to sue to enforce the Equal Pay Act or the Age Discrimination in Employment Act. See EEOC v. New York, 34 Fair Empl. Prac. Cas. (BNA) 379 (N.D.N.Y. Jan. 31, 1984); EEOC v. International Mill Service, 34 Fair Empl. Prac. Cas. (BNA) 392 (E.D. Pa. Feb. 22, 1984); EEOC v. Fairfax County, No. 84-83-A (E.D. Va. Mar. 2, 1984); EEOC v. Radio Montgomery, Inc., 34 Fair Empl. Prac. Cas. (BNA) 378 (W.D. Va. Feb. 22, 1984); EEOC v. Pan American World Airways, 34 Fair Empl. Prac. Cas. (BNA) 321 (N.D. Cal. Mar. 6, 1984); EEOC v. Old Dominion Freight Line, Inc., 34 Fair Empl. Prac. Cas (BNA) 377 (M.D.N.C. Mar. 7, 1984); EEOC v. Plessey, Inc., 34 Fair Empl. Prac. Cas. (BNA) 500 (D. Kan. Mar. 12, 1984); EEOC v. Natural Gas Pipeline Co. of America, No. LRC 83444 (E.D. Ark. Feb. 22, 1984) (bench ruling), interlocutory appeal pending, No. 84-1404-EA (8th Cir.); EEOC v. Elrod, No. 79 C 4120 (N.D. Ill. Mar. 20, 1984); EEOC v. Ingersoll Johnson Steel Co., 34 Fair Empl. Prac. Cas. (BNA) 875 (S.D. Ind. Apr. 5, 1984); EEOC v. U.S. Steel Corp., Misc. No. 10403 (W.D. Pa. Apr. 5, 1984); EEOC v. County of Hudson, No. 83-1669(D) (D.N.J. Mar. 12, 1984); EEOC v. City of Waco, No. 82-CA-11 (W.D. Tex. Mar. 14, 1984); EEOC v. WalMart Stores, Inc., No. CV-83-C-2268 (N.D. Ala. Apr. 24, 1984); EEOC v. County of Allegheny, No. 79-1531 (W.D. Pa. Apr. 24, 1984). The only contrary holdings are those of the district courts in this case, in Allstate, and in EEOC v. Westinghouse Electric Corp., Civ. No. 83-1209 (W.D. Pa. Jan 5, 1984). By order dated March 21, 1984, Justice Brennan extended the time within which to docket the direct appeal in Westinghouse to and including May 30, 1984. As in Allstate and the instant case, the Commission, in addition to filing a notice of direct appeal to this Court, has filed a notice of appeal to the court of appeals pursuant to 28 U.S.C. 1291 in Westinghouse, No. 83-3073 (3d Cir.). APPENDIX