Late last night, I filed our challenge to the ironically names “The Fairness for Experienced Pilots Act,” legislation that wipes out the seniority, benefits, and status of pilots who turned 60 before December 13, 2008 — the date of the Act’s enactment. This new Age 60 rule violates a host of constitutional and statutory laws, as the brief below explains.
I am counsel for the senior pilots in this case, Adams v. F.A.A.. We are also working for a legislative change on Capitol Hill to correct the problem. The new Age 60 rule was inserted into the law at the insistence of the pilots’ union, ALPA. The effort was benefit younger pilots who did not want to face competition from their more senior colleagues. Not only has ALPA worked against the interests of its older members, but it prevented older pilots from voting in a critical resolution on the Age 60 rule.
For discussion of the litigation, click here.
Prof. Turley,
Since my father was a Senior FAA Medical Examiner, I just happened to be familiar with this rule as well at the gripes by the pilots affected.
A while back I glanced at your brief In Opposition to Respondents’ Motion to Dismiss Consolidated Cases and had a few thoughts (circa May, 2008) for your consideration:
1. It seems to me the Non-retroactivity Provision negates the mootness argument via sharpening the justiciability issues relating to standing.
2. Oddly enough, your Fifth Amendment arguments seemed most convincing, including the Takings analysis. You started losing me however on the Bill of Attainder argument; i.e. it left me anticipating the Court dismissing the idea entirely with a criminal v. civil distinction. Upon second glance, it appeared that the Bill of Attainder argument, while a tad vulnerable on its own, seemed to bolster the Fifth Amendment arguments; i.e. on substantive due process (rational basis) and takings.
BTW, correct me if I’m wrong, but I believe this is a Bill of Attainder (pre-1787) by which the Continental Congress effectuated Takings from the loyalists.
http://www.utulsa.edu/law/classes/rice/Constitutional/Tory_Act.htm
3. And while the Age Discrimination angle does smell of Equal Protection, the idea of the FAA prematurely ending the career-life, career-liberty and thereby effectuating a taking of the individual’s property and or capacity to “pursue happiness” in the Lockean/Jefferson sense of the phrase, simply because he/she passed a certain age, folds tightly into the Fifth Amendment as well as the second paragraph of another famous document.
That’s my two cents.
Regards,
Bob
P.S. If the Takings analysis sticks, I’d be wary of any TDR type offers in contemplation of settlement or in lieu of being shut down with a ‘Lucas’ “all economic viable use” line of argument. Unless the government provided treble damages to the pilots for the lost five years and compulsory early retirement,
Per the “all economic viable use” line of thinking, e.g. that commercial pilots are free to become entry level charter pilots, etc., your Bill of Attainder argument, combined with a substantive due process lack of rational basis (circa 1959), combined with a dignity of the individual/Lockean/Jefferson theory of “pursuit of [property]” argument would work well in opposition.
Dizzying.
Just what we always wanted for our families; worrying about our pilot at 30,000 feet dropping dead of heart failure because some attorney thinks it wrong for society to determine that at a point in time public safety trumps someone’s right to work till they drop.
“Just what we always wanted for our families; worrying about our pilot at 30,000 feet dropping dead of heart failure because some attorney thinks it wrong for society to determine that at a point in time public safety trumps someone’s right to work till they drop.”
And given the choice, what with age being determinative, you’d always fly with the 40 year old smoker mainlining bacon fat into his arteries.
Right?
Right.
percy,
Please feel free to apply the same standards to the presumptive Republican nominee for President of the United States.
Hi,
Any news from this case?
Fred
Captain (Ex-Continental)
Qantas Airways
ever hear of sudden infant death syndrome? People are sometimes here for a reason – especially heros.