EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, APPELLANT V. ALLSTATE INSURANCE COMPANY No. 83-1021 In the Supreme Court of the United States October Term,1983 On Appeal from the United States District Court for the Southern District of Mississippi Supplemental Memorandum for the Appellant Pursuant to Rule 16.6 of the Rules of this Court, the Solicitor General, on behalf of the appellant, respectfully files this supplemental memorandum to inform the Court of the recent decision in EEOC v. Hernando Bank, Inc., No. 82-4298 (5th Cir. Feb. 13, 1984), which came to our attention after the Reply Brief was filed. /1/ The Fifth Circuit in that case rejected the precise argument appellee raised in district court and renews in this Court: that the Commission does not have authority to enforce the Equal Pay Act because of the presence of the unexercised legislative veto provision in the Reorganization Act of 1977. The court of appeals concluded in Hernando Bank, "(a)fter a close analysis of the language and legislative history of the Reorganization Act" (slip op. 2056), that the unconstitutional one-House legislative veto provision is severable from the remainder of the Act because it is not "evident" that Congress would have declined to enact the remainder of the Reorganization Act without the legislative veto provision and because the remainder of the Act "is fully operative as a law." Slip op. 2056, quoting Buckley v. Valeo, 424 U.S. 1, 109 (1976), and Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234 (1932). The court found in the text and legislative history of the Act a congressional determination that reorganization was necessary to increase governmental efficiency and for other purposes (see 5 U.S.C. 901(a)) and that these objectives could best be achieved by vesting the President with the necessary reorganization authority. The court also observed that Congress had included a number of restrictions in the Act in addition to the legislative veto provision in order to limit the President's reorganization authority, thereby further indicating that Congress would have passed the Reorganization Act even without the specific restriction of the legislative veto. Slip op. 2056-2057. In addition, the court of appeals "perceive(d) a significant distinction between the exercise of a one-house legislative veto, such as that held invalid in Chadha, and the mere presence of an unexercised legislative veto in the Reorganization Act" (slip op. 2057 n.2). We, too, have stressed that this factor weighs heavily against invalidation of Reorganization Plan No. 1 and the Commission's enforcement authority. See J.S. 9-13, 15; Reply Br. 5-6, 7-8. Finally, the court found it significant that, unlike the Executive action in Chadha, Reorganization Plan No. 1 did not affect the substantive rights of any person, but simply transferred existing enforcement authority with respect to those rights "from one executive agency to another" (slip op. 2058 n.2). The decision in Hernando Bank adds the considered judgment of an appellate court to the weight of district court authority discussed in our Reply Brief (at 3-4 & n.2) that sustains the Commission's post-Chadha exercise of enforcement authority acquired pursuant to Reorganization Plan No. 1. And because the Fifth Circuit's decision in Hernando Bank will control the Commission's alternative appeal to the Fifth Circuit in the instant case (see J.S. 6) and thereby permit a prompt disposition of that appeal, the resolution of appellee's challenge to the Commission's enforcement authority will not be delayed if this Court dismisses the Commission's direct appeal in this case for lack of jurisdiction under 28 U.S.C. 1252, as we have submitted it should do. Respectfully submitted. REX E. LEE Solicitor General FEBRUARY 1984 /1/ We have lodged ten copies of the opinion in Hernando Bank with the Clerk of this Court. The appellee in Hernando Bank did not raise the issue of the Commission's enforcement authority in district court. The case was pending before the court of appeals on the Commission's appeal on the merits when this Court rendered its decision in INS v. Chadha, No. 80-1832 (June 23, 1983), and the court of appeals addressed the question of the Commission's enforcement authority in light of the decision in Chadha. Slip op. 2055.