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 Jurisdictional Statement TABLE OF CONTENTS Opinion below Jurisdiction Statutory and reorganization plan provisions involved Statement The Court does not have jurisdiction over this appeal under 28 U.S.C. 1252 The question is substantial Conclusion Appendix A Appendix B Appendix C Appendix D OPINION BELOW The opinion of the district court (App., infra, 1a-19a) is reported at 570 F. Supp. 1224. JURISDICTION The order of the district court granting summary judgment to appellee was entered on August 19, 1983 (App., infra, 20a), and the opinion of the district court was rendered on September 9, 1983 (App., infra, 1a-19a). The notice of appeal was filed on September 16, 1983 (App., infra, 21a). By order dated November 7, 1983 Justice White extended the time within which to docket the appeal to and including December 15, 1983. 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 Equal Employment Opportunity Commission does not seek review of the district court's holding that the legislative veto provision of the Reorganization Act of 1977 is unconstitutional. See pages 6-8, infra. This appeal therefore is taken for protective purposes only pending a decision by the Court in Heckler v. Edwards, No. 82-874 (argued Nov. 30, 1983). The Commission also has filed a notice of appeal to the court of appeals under 28 U.S.C. 1291. STATUTORY AND REORGANIZATION PLAN PROVISIONS INVOLVED The relevant provisions of the Reorganization Act of 1977, Pub. L. No. 95-17, 91 Stat. 29, 5 U.S.C. 901 et seq.; the Equal Pay Act of 1963 (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, 29 U.S.C. (& Supp. V) 216(c) and 217; and Reorganization Plan No. 1 of 1978, 92 Stat. 3781, are set forth in App., infra, 22a-30a. 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 to enforce the Equal Pay Act (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 Southern District of Mississippi on April 14, 1982, pursuant to Sections 16(c) and 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. (& Supp. V) 216(c) and 217. The complaint alleges that appellee Allstate Insurance Company is violating Section 6(d) of the Fair Labor Standards Act, 29 U.S.C. 206(d) -- commonly known as the Equal Pay Act -- by paying lower wages to female unit supervisors and underwriters than it pays to male unit supervisors and underwriters performing equal work (Comp. Paragraph 7). 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. (& Supp. V) 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 Equal Employment Opportunity Commission by Reorganization Plan No. 1 of 1978, 92 Stat. 3781, /1/ which also transferred other equal employment opportunity functions to the Commission. /2/ The purpose of the Reorganization Plan was "to consolidate() Federal equal employment opportunity activities" and to provide, "for the first time, the foundation of a unified, coherent Federal structure to combat job discrimination in all its forms." I Pub. Papers 400 (1978). The transfer of Equal Pay Act functions to the Commission was specifically designed to "minimize overlap and centralize enforcement of statutory prohibitions against sex discrimination in employment," since the Commission already was empowered to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. I Pub. Papers 403 (1978). The Reorganization Plan was implemented pursuant to the Reorganization Act of 1977, (Pub. L. No. 95-17, 91 Stat. 29, 5 U.S.C. 901 et seq.), which conferred on the President authority to reorganize operations of the Executive departments and agencies subject to certain conditions and limitations imposed by Congress. This reorganization authority previously had expired in 1973. 5 U.S.C. (1976 ed.) 905(b). The authority was reactivated in 1977 for a period of three years (91 Stat. 32) and, after a one-year extension, it expired on April 6, 1981. 5 U.S.C. 905(b). Under 5 U.S.C. 903, the President was required to transmit any reorganization plan to both Houses of Congress. The reorganization plan then would become "effective" at the end of 60 days of continuous session of Congress after transmittal, unless during that time either House passed a resolution stating in substance that it did not favor the plan. 5 U.S.C. 906(a). A plan that was not vetoes by either House and therefore became effective was to be printed "in the Statutes at Large in the same volume as the public laws" (5 U.S.C. 906(d)). The Reorganization Act further provided that if a statute had vested a function in the agency from which it was removed under a reorganization plan, that function "shall be deemed as vested in the agency under which the function is placed by the plan." 5 U.S.C. 907(a). In accordance with the requirements of the Reorganization Act, Reorganization Plan No. 1 of 1978 was transmitted by the President to Congress on February 23, 1978. I Pub. Papers 400 (1978). The House of Representatives rejected a resolution disapproving the Plan by a vote of 356 to 39. H.R. Res. 1049, 95th Cong., 2d Sess. (1978); 124 Cong. Rec. 11336-11337 (1978). The Senate Committee on Governmental Affairs unanimously recommended against passage of a resolution of disapproval by the Senate (S. Res. 404, 95th Cong., 2d Sess. (1978); S. Rep. 95-750, 95th Cong., 2d Sess. 6, 10 (1978)), although the resolution disapproval was not brought to a vote by the full Senate. See 124 Cong. Rec. 12888 (1978). Because the Reorganization Plan was not vetoed by either House of Congress, it became effective on May 6, 1978 and was printed in the Statutes at Large. 92 Stat. 3781-3782. The particular portions of the Plan relating to enforcement of the Equal Pay Act were implemented on July 1, 1979. Exec. Order No. 12,144, 44 Fed. Reg. 37193 (1979). 2. On August 9, 1983, appellee moved for summary judgment in this action, contending that the transfer of authority to the Commission to enforce the Equal Pay Act was invalid because of the presence of the legislative veto provision in the Reorganization Act. The Commission conceded that the legislative veto provision is unconstitutional in light of this Court's decision in INS v. Chadha, No. 80-1832 (June 23, 1983), which struck down the legislative veto provision in Section 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. 1254(c)(2). Appellee further contended that the legislative veto provision is not severable from the remainder of the Reorganization Act; that Reorganization Plan No. 1 of 1978 is invalid as a result, even though it was not vetoed by either House of Congress; and that the Commission therefore is without authority to enforce the Equal Pay Act. The district court agreed with appellee's arguments, and dismissed the complaint (App., infra, 1a-19a). The court rejected the Commission's submission that the legislative veto provision is severable from the remainder of the Act, that 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 that Congress in any event had ratified the transfer of authority to the Commission (id. at 6a-19a). THE COURT DOES NOT HAVE JURISDICTION OVER THIS APPEAL UNDER 28 U.S.C. 1252 This direct appeal under 28 U.S.C. 1252 has been docketed for protective purposes only, pending a decision in Heckler v. Edwards, No. 82-874 (argued Nov. 30, 1983). We have argued in Edwards that a direct appeal to this Court does not lie under 28 U.S.C. 1252 when the appellant does not seek review of the holding that an Act of Congress is unconstitutional and instead challenges only the relief granted by the district court. An appeal challenging only the relief instead must be taken to the court of appeals pursuant to 28 U.S.C. 1291, in the same manner as all other appeals that do not raise the question of the constitutionality of an Act of Congress. /3/ For the reasons explained below, the jurisdictional position we have urged in Edwards applies equally here. The Commission's appeal therefore lies to the court of appeals under 28 U.S.C. 1291. Accordingly, in addition to taking a protective direct appeal to this Court, the Commission, on October 14, 1983, also filed a notice of appeal to the United States Court of Appeals for the Fifth Circuit (No. 83-4656). /4/ The Commission conceded in district court that the one-House legislative veto provision in the Reorganization Act is unconstitutional in light of the decision in Chadha, and it does not seek review on appeal of the district court's holding that the statutory provision is unconstitutional. The Commission seeks review only of the relief ordered by the district court: dismissal of the Commission's enforcement action. That relief was based on the district court's conclusions that the legislative veto provision of the Reorganization Act is not severable from the remainder of the Act, that Congress intended that even completed reorganization plans would be invalidated if the legislative veto provision were held unconstitutional, and that this Court's decision in Chadha should be applied retroactively to invalidate reorganization plans that became effective prior to the Court's decision in that case. These issues do not concern the constitutionality of an Act of Congress. Whether the legislative veto provision is severable from the remainder of the Act and whether Congress intended even completed reorganization plans to be invalidated are questions solely of statutory construction and legislative intent. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 302 (1976). Similarly, the question whether this Court's decision in Chadha should be applied retroactively to invalidate a reorganization plan that was completed before the date of that decision presents no question of the constitutionality of the Reorganization Act. Indeed, it presents no constitutional issue at all, because the "'federal constitution has no voice on the subject' of retrospectivity." United States v. Johnson, 457 U.S. 537, 542 (1982) (quoting Great Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1935)). See also Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87-88 (1982) (plurality opinion of Brennan, J.); id. at 92 (Rehnquist, J., concurring in the judgment). Because the jurisdictional issue under 28 U.S.C. 1252 will be controlled by the Court's decision in Heckler v. Edwards, we suggest that the Court hold the jurisdictional statement in this case pending that decision. If the Court concludes in Edwards that a direct appeal does not lie under 28 U.S.C. 1252 when the appeal does not seek review of the lower court's holding of an Act of Congress unconstitutional, it should dismiss the appeal in this case. If the Court concludes in Edwards that a direct appeal must be taken in such circumstances, it then should note probable jurisdiction in this case. THE QUESTION IS SUBSTANTIAL The district court plainly erred on the merits in holding that the Commission does not have authority to enforce the Equal Pay Act and in granting summary judgment for appellee on that ground. Although we of course agree that the one-House veto provision in the Reorganization Act is unconstitutional under this Court's decision in INS v. Chadha, it does not follow that the transfer of enforcement authority to the Commission under a reorganization plan that became effective pursuant to that Act more than five years ago must be invalidated. 1. It should be stressed at the outset that the issue presented here is quite different from -- and far narrower than -- the severability issue involved in Chadha. In that case, the House of Representatives actually had exercised the one-House veto authority contained in Section 244(c)(2) of the Immigration and Nationality Act. Section 244(c)(2) provided that if one House of Congress disapproved the Attorney General's suspension of deportation, "the Attorney General shall thereupon deport such alien * * *." The question whether the legislative veto provision was severable from the remainder of Section 244 was relevant in Chadha in determining whether Chadha himself could be granted relief pursuant to the remainder of Section 244 notwithstanding the House of Representatives' veto of the suspension of his deportation and the statutory directive that he be deported because of that veto. In addition, the Court's severability holding in Chadha had the effect of permitting the Attorney General to continue to grant suspension of deportation and permanent resident status to aliens in the future without having those decisions subject to the one-House veto mechanism Congress included in Section 244(c)(2). INS v. Chadha, slip op. 10-14; id. at 1-4 (Rehnquist, J., dissenting). Nevertheless, the Court held that the veto provision was severable. This case is wholly different. Because the President's reorganization authority expired on April 6, 1981 (5 U.S.C. 905(b)), this case does not present any question of whether the President will be permitted to exercise reorganization authority in the future without regard to the legislative veto process. Moreover, unlike the suspension of deportation involved in Chadha, the Reorganization Plan at issue here was not vetoed by either House of Congress. Because the Reorganization Plan was subject to the control of the legislative veto procedure before it was placed in effect and passed muster under that procedure, there is no occasion here to consider the broader severability issue involved in Chadha of whether Congress would have conferred the authority in question on the Executive without subjecting it to the control of a possible legislative veto. /5/ The Reorganization Act itself expressly provides that a Plan that has not been vetoed by either House of Congress during the 60-day period "is effective" (5 U.S.C. 906(a)). The question in this case therefore is whether Congress intended when it enacted the Reorganization Act that Executive action that was not vetoed and therefore became effective pursuant to the procedures in the Reorganization Act nevertheless must be invalidated if a court were to conclude at a later date that the unexercised legislative veto authority in the Act is unconstitutional. A compelling showing should be required before the Court attributes to Congress such a perverse intent. No such showing has been made here. In fact, the indicia of legislative intent strongly support the validity of the Plan at issue. 2. As an initial matter, the logic of the legislative veto device itself weighs heavily against invalidation of a reorganization plan that was not vetoed. Supporters of the legislative veto device frequently have defended it on the ground that when neither House of Congress exercises the veto authority, Congress's silence may be taken as approval of the Executive action involved. INS v. Chadha, slip op. 38 n.22; id. at 29-30 (White, J., dissenting). This view was reflected in the consideration of the Reorganization Act of 1977. See H.R. Rep. 95-105, 95th Cong., 1st Sess. 11 (1977); S. Rep. 95-32, 95th Cong., 1st Sess. 27 (1977) (both quoting the opinion of Attorney General Bell); 123 Cong. Rec. 9350 (1977) (remarks of Rep. Levitas). Moreover, the Reorganization Act of 1977 was carefully drafted to make it especially likely that reorganization plans would not go into effect unless they met with the approval of Congress (App., infra, 12a & n.26). The Act required that resolutions of disapproval automatically would be introduced in the Senate and House on the day following transmittal of a reorganization plan to Congress and would be deemed discharged from the relevant Committee in each House if that Committee did not make its recommendation within 45 days. 5 U.S.C. 910 and 911. The Act then provided that a motion to consider the resolution of disapproval would be in order at any time and would be highly privileged and not be subject to a motion to postpone. 5 U.S.C. 912(a). The obvious purpose of these measures was to assure that even a single Member of the House or Senate could call up the resolution and thereby "virtually assure a vote by both the House and Senate on every plan." H.R. 95-105, supra, at 17. /6/ In this case, the House of Representatives expressed overwhelming approval of Reorganization Plan No. 1 of 1978 when it rejected the resolution of disapproval by a vote of 356 to 39. 124 Cong. Rec. 11336-11337 (1978). The Senate Committee on Governmental Affairs unanimously recommended that the Senate likewise reject a resolution of disapproval, and the resolution was not voted upon in the Senate only because its consideration was indefinitely postponed by a unanimous consent agreement under which even a single Senator could have objected and insisted that the matter be taken up. 124 Cong. Rec. 12888 (1978). It seems most unlikely that Congress would have intended for a court to invalidate a reorganization plan that became effective according to procedures that both were designed in general and operated in the particular case to ensure that the plan met with the approval of Congress before it was implemented. A number of other provisions of the Reorganization Act further support this conclusion. First, as noted above, 5 U.S.C. 906(a) expressly provides that a reorganization plan that was not vetoed within the 60-day period allowed "is effective." Second, the Reorganization Act itself contains an explicit legislative validation of the exercise of statutory authority by the transferee agency: 5 U.S.C. 907(a) provides that if a statute "has vested the functions in the agency from which it is removed under the reorganization plan, the function, insofar as it is to be exercised after the plan becomes effective, shall be deemed as vested in the agency under which the function is placed by the plan" (emphasis added). Third, 5 U.S.C. 906(d) provides that a "reorganization plan which is effective shall be printed * * * in the Statutes at Large in the same volume as the public laws * * *." This passage accords a special stature to reorganization plans equivalent to that of public laws, which of course remain in effect until amended or repealed by Congress itself. Fourth, it is significant that the Executive action involved here is that of the President, not of a subordinate officer as in Chadha -- a factor that likewise accords special stature and finality to a completed reorganization plan. Because the President's action "was taken pursuant to specific congressional authorization, it is 'supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.'" Dames & Moore v. Regan, 453 U.S. 654, 674 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)). These provisions of the Reorganization Act confirm that Congress did not intend a completed reorganization plan to be undone if the unexercised legislative veto authorization was later held to be unconstitutional. 3. In addition, since Reorganization Plan No. 1 was implemented, Congress has explicitly ratified the transfer of authority to the Commission. In the applicable appropriations act for fiscal year 1983, Congress appropriated funds "(f)or necessary expenses of the Equal Employment Opportunity Commission as authorized by Title VII of the Civil Rights Act of 1964, 29 U.S.C. 206(d) and 621-634 * * *." /7/ Pub. L. No. 97-377, 96 Stat. 1830, 1874. The explicit reference to 29 U.S.C. 206(d) -- the Equal Pay Act -- makes clear that Congress intended the Commission to exercise the authority transferred to it under the Reorganization Plan. Fleming v. Mohawk Co., 331 U.S. 111, 116 (1947); Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301-302 (1937). See Muller Optical Co. v. EEOC, No. 83-2836 (W.D. Tenn. Nov. 10, 1983), slip op. 15-18. What is more, Congress appropriated funds to the Commission for fiscal year 1984 in terms identical to those in the 1983 appropriations act that explicitly refer to the Equal Pay Act (Pub. L. No. 98-166, 97 Stat. 1071 (enrolled bill (H.R. 3222, 98th Cong., 1st Sess. at 18, (1983)), signed by the President on Nov. 28, 1983)). This appropriations act was passed after this Court's decision in Chadha made clear that the legislative veto provision of the Reorganization Act is unconstitutional. It therefore removes any doubt about whether Congress intends for the Commission to continue to enforce the Equal Pay Act despite the latent legislative veto defect in the Reorganization Act. /8/ 4. In any event, this Court's decision in Chadha should not be applied retroactively to invalidate reorganization plans that were not vetoed by either House of Congress and were implemented before the date of the decision in that case. This Court has identified three considerations that bear upon the issue of retroactivity of its decisions: (first) whether the holding in question "decid(ed) an issue of first impression whose resolution was not clearly foreshadowed" by earlier cases * * *; second "whether retrospective operation will further or retard (the) operation" of the holding in question * * *; and third whether retroactive application "could produce substantial inequitable results" in individual cases * * *. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. at 88 (plurality opinion of Brennano, J.) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971)). All three of these factors weigh against retroactive application of the Chadha holding in this case. First, the Court in Chadha decided an issue of first impression, and its conclusion was not "clearly foreshadowed" by prior decisions of the Court. Second, retroactive application of the Chadha holding in the circumstances of this case is not necessary to further the operation of that holding. The potential constitutional defect in the statutory procedure remained dormant in this case, because the one-House veto permitted by 5 U.S.C. 906 was never exercised. Thus, retroactive application is not necessary here to validate action actually taken by one House of Congress in violation of the constitutional requirements of bicameralism and presentment to the President, as in Chadha itself. Third, retroactive application of the decision in Chadha here would produce manifestly inequitable results by disrupting established enforcement procedures in a substantial number of pending cases and in the administration of the Equal Pay Act generally. We have been informed by the Commission that there now are pending 62 Equal Pay Act cases and 105 Age Discrimination in Employment Act (ADEA) cases brought by the Commission. If the Commission's suits are dismissed, substantial confusion may arise with respect to whether actions may be brought by the individual discriminatees under 29 U.S.C. (& Supp. V) 216(b) and (c) and whether the Secretary of Labor may reassume enforcement authority and be substituted as a plaintiff in these cases. In contrast, the defendants in these suits, such as appellee Allstate, have no substantial equitable claim to retroactive application of the Chadha holding: the Reorganization Act and Plan did not alter their substantive obligations under the Equal Pay Act or ADEA, and there is no reason to believe that their liability has been affected in any way by the fact that it is the Commission rather than the Secretary of Labor who has brought the suits. A consideration of the equities and the public interest in administrative stability strongly support the conclusion that the Court should not undo the understanding by all concerned over the last five years that the Commission is the proper agency to enforce the Equal Pay Act -- an understanding that was confirmed by Congress in appropriating funds to the Commission for the current fiscal year after Chadha was decided. /9/ CONCLUSION The jurisdictional statement in this case should be held pending a decision in Heckler v. Edwards, No. 82-874. If the Court concludes in Edwards that an appeal does not lie under 28 U.S.C. 1252 when the appellant does not seek review of the district court's holding that an Act of Congress is unconstitutional, the Court should dismiss the appeal in this case for lack of jurisdiction. On the other hand, if the Court affirms the judgment of the court of appeals in Edwards, it should note probable jurisdiction in this case. In that event, the Court may wish to consider summary reversal of the judgment of the district court. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General DAVID L. SLATE General Counsel Equal Employment Opportunity Commission DECEMBER 1983 /1/ Reorganization Plan No. 1 of 1978 transferred "(a)ll functions related to enforcing or administering Section 6(d) of the Fair Labor Standards Act, as amended, 29 U.S.C. 206(d) * * * to the Equal Employment Opportunity Commission." Reorg. Plan, Section 1. "Such functions include, but shall not be limited to, the functions relating to equal pay administration and enforcement now vested in the Secretary of Labor (and) the Administrator of the Wage and Hour Division of the Department of Labor pursuant to Sections * * * 16(b) and (c) * * * and 17 of the Fair Labor Standards Act." Ibid. /2/ The Reorganization Plan also transferred to the Commission: (1) functions vested in the Secretary of Labor and the Civil Service Commission under the Age Discrimination in Employment Act of 1967 (Reorg. Plan, Section 2); (2) federal equal employment opportunity enforcement and related functions vested in the Civil Service Commission (Reorg. Plan, Section 3); (3) enforcement and related functions vested in the Civil Service Commission pursuant to Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791, with respect to federal employment of handicapped persons (Reorg. Plan, Section 4); and (4) functions of the Equal Employment Opportunity Coordinating Council, 42 U.S.C. 2000(e)-14 (Reorg. Plan, Section 5). /3/ We have furnished appellee with copies of our briefs in Heckler v. Edwards. /4/ On November 23, 1983, appellee filed a motion in the court of appeals to dismiss the Commission's appeal under 28 U.S.C. 1291, contending that the appeal instead must be taken to this Court under Section 1252. The Commission filed an opposition to the motion to dismiss on December 5, 1983, advancing the position we have taken in Heckler v. Edwards that a direct appeal does not lie when the appellant does not seek review of the district court's holding that an Act of Congress is unconstitutional. The Commission also suggested that the court of appeals in any event not dismiss the appeal while the question of appellate jurisdiction is pending before this Court in Edwards and that the court proceed with briefing and consideration of the case on the merits. The court of appeals has not yet ruled on the motion to dismiss. In Muller Optical Co. v. EEOC, No. 83-2836 H (W.D. Tenn. Nov. 10, 1983), appeal pending, No. 83-5889 (6th Cir.), the district court rejected a similar challenge to the Commission's authority to enforce the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., which was transferred from the Secretary of Labor to the Commission by Section 2 of the same Reorganization Plan at issue here. The district court there held that the legislative veto provision is severable and that, in any event, Congress ratified the transfer of authority. On November 17, 1983, the plaintiffs in Muller Optical filed a notice of appeal to the court of appeals under 28 U.S.C. 1291; they have not sought to appeal the question of relief to this Court under 28 U.S.C. 1252. /5/ As the court held in Muller Optical Co. v. EEOC, slip op. 10-15, we believe that Congress would have enacted the reorganization authority without the legislative veto check and that the veto provision therefore is severable. If the Court were to grant plenary review in this case, we would present this broader argument as well. /6/ See also H.R. Rep. 95-105, supra, at 2-3; id. at 36 (additional views of Chairman Brooks); 123 Cong. Rec. 6146 (1977) (remarks of Sen. Percy); id. at 6148 (remarks of Sen. Schmitt); id. at 9344 (remarks of Rep. Brooks); id. at 9345 (remarks of Rep. Horton); id. at 9348 (remarks of Rep. Fascell); ibid. (remarks of Rep. Levitas); id. at 9359, (remarks of Rep. Drinan). /7/ 29 U.S.C. 621-634, mentioned in the appropriations act, is the Age Discrimination in Employment Act of 1967. Authority to enforce that Act also was transferred to the Commission by Reorganization Plan No. 1 of 1978 (see note 2, supra), and the reference to that Act therefore constitutes a further ratification of the Plan. In addition, Section 905 of the Civil Service Reform Act of 1978 (Pub. L. No. 95-454, 92 Stat. 1224, 5 U.S.C. 1101 note) provides that "(a)ny provision in either Reorganization Plan Number 1 or 2 of * * * 1978 inconsistent with any provision in this Act * * * is hereby superseded." This statutory reference constitutes a ratification of the named Reorganization Plans to the extent they were not superseded. Fleming v. Mohawk, 331 U.S. at 118-119; Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 147-148 (1937). /8/ The district court did not discuss the decisions of this Court cited in the text that specifically address the question of congressional ratification of a presidential reorganization by the appropriation of funds to the transferee agency to carry out the function in question. That court instead relied principally on Greene v. McElroy, 360 U.S. 474, 506-507 (1959), in which the Court held that an appropriation of funds to the Defense Department for various aspects of a security clearance program could not be regarded as a ratification of the precise hearing procedures being challenged, which raised substantial constitutional questions. App., infra, 17a-18a. This case is wholly different. The appropriation acts are not relied upon here as a ratification of the Commission's procedures in enforcing the Equal Pay Act, but rather as a ratification of the Commission's authority to enforce the Act. The appropriations acts are unambiguous on this point. This case also is quite different from TVA v. Hill, 437 U.S. 153, 180-193 (1978), also relied upon by the district court (App., infra, 18a). There, the Court held that a lump sum appropriation to the TVA did not constitute a repeal of the substantive restrictions of the Endangered Species Act as applied to Tellico Dam. Here, unlike in TVA v. Hill, the appropriations act itself contains the operative language that establishes Congress's intent. Moreover, here the argument is that the statutory language simply ratifies the continued exercise of enforcement authority under a reorganization already in place. In TVA v. Hill, the claim was one of implied repeal of substantive law. /9/ There are nine other reorganization plans that were implemented pursuant to the 1977 Act whose validity also might be called into question by a retroactive application of Chadha in circumstances such as those presented here. APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.