Appealed from: U.S. District Court for the District of Columbia Judge Gasch
Before NIES, Circuit Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.
This is a consolidated appeal from the order of the district court, National Treasury Employees Union v. Reagan, 629 F. Supp. 762 (D.D.C. 1985), granting appellees' motion for summary judgment, on the grounds that, after severing an unconstitutional one-House veto provision from the Federal Pay Comparability Act of 1970, Pub. L. No. 91-656, 84 Stat. 1946 (1971)(the Pay Act), the alternative pay plan provision of the Act is not unconstitutional and that the federal pay plan implemented for fiscal year 1984 complied with the terms of the Act. Our jurisdiction of this appeal is derived from 28 U.S.C. § 1295(a)(2) (1982). We affirm.
The Pay Act provides a mechanism for the annual adjustment of the pay rates of federal employees in the statutory pay systems for the purpose of achieving pay comparability with employees in the private sector doing substantially equal work. Under the Act, the President appoints a pay agent who prepares an annual report comparing salaries of federal employees with salaries of private sector employees and recommending appropriate adjustments in federal salaries. The pay agent submits the report to the President and also to the Advisory Committee on Federal Pay. The Advisory Committee on Federal Pay reviews the report and makes additional recommendations to the President.
Based on the pay agent's report and the recommendations of the Advisory Committee on Federal Pay, the President is to adjust federal employees' pay in accordance with the principles of 5 U.S.C. § 5301(a)(1982) providing for pay comparability with the private sector. The President is required to transmit to Congress a report of the pay adjustment together with the pay agent's report and the report of the Advisory Committee on Federal Pay.
The Act provides an alternative plan for adjusting statutory pay rates. "If, because of national emergency or economic conditions affecting the general welfare" the President considers it "inappropriate to make the pay adjustment required" by 5 U.S.C. § 5305(a), the President may prepare and transmit to Congress an "alternative plan with respect to a pay adjustment as he considers appropriate, together with the reasons therefor, in lieu of the pay adjustments required" by section 5305(a). 5 U.S.C. § 5305(c)(1).
The Act also provides for a legislative veto of the alternative plan. The alternative plan submitted by the President becomes effective on the first day of the first applicable pay period commencing on or after October 1 of the applicable year and continues in effect unless, before the end of the first period of 30 calendar days of continuous session of Congress after the date the plan is transmitted, either House adopts a resolution disapproving it. 5 U.S.C. § 5305(c)(2). If either House adopts a resolution disapproving the alternative plan, the Act requires the President to adjust pay rates in accordance with section 5305(a)(2) and (3) "effective as of the beginning of the first applicable pay period commencing on or after the date on which the resolution is adopted, or on or after October 1, whichever is later." 5 U.S.C. § 5305(m).
For fiscal years 1980, 1981, 1983, and 1985, the President submitted to Congress alternative plans proposing increases less than those recommended by his pay agent. Neither House of Congress disapproved and in each year the pay increase proposed by the President became effective. In fiscal year 1982, Congress enacted the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 1701, 95 Stat. 357, 753, section 1701(a) of which provided for a cap of 4.8 percent on the adjustment of statutory pay rates under 5 U.S.C. § 5305. In fiscal year 1984, Congress enacted the Omnibus Budget Reconciliation Act of 1983, Pub. L. No. 98-270, § 202, 98 Stat. 157, 158 (1984), section 202(a)(1) of which provided that the adjustment to statutory pay rates under 5 U.S.C. § 5305 would be 4 percent.
Appellants American Federation of Government Employees, AFL-CIO (AFGE) and National Treasury Employees Union (NTEU) are unincorporated associations based in Washington, D.C. AFGE and NTEU are the exclusive bargaining representatives of federal employees whose pay was adjusted under alternative pay plans submitted by the President in 1980, 1981, 1983, and 1985. The other named appellants are members of AFGE and NTEU who reside in Washington, D.C.
This matter came before the district court on the defendants' motion for judgment on the pleadings in NTEU v. Reagan and on cross motions for summary judgment in both cases. The district court denied the defendants' motion for judgment on the pleadings, denied the plaintiffs' motions for summary judgment, and granted the defendants' motions for summary judgment in both cases.
All parties agreed that under Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983), the one-House veto provision of the Act was unconstitutional. The district court concluded that the one-House veto provision was severable from the alternative pay plan provision because the provisions of the Act remaining after severance were fully operable as law, and the legislative history of the Pay Act did not demonstrate that Congress would not have enacted the alternative pay plan procedure without the one-House veto provision. The district court concluded that the alternative pay plan, absent the one-House veto provision, was not an unconstitutional delegation of legislative authority. The ...