Our litigation began roughly seven years ago in challenging the original Age 60 rule. Dating back to 1959, the FAA barred any pilot who had “reached his or her 60th birthday” from flying. 14 C.F.R. § 121.383(c) (2008). The rule was never based on any medical or scientific finding—a point later affirmed by Congress in rejecting the rule.
Many of the pilots in this case challenged the original Age 60 rule in federal court to show the obvious lack of any basis for the discriminatory treatment of pilots. While litigating the issue, we also went to Congress and spoke with members about the lack of any medical or scientific report to support this draconian rule. (All pilots are subject to regular exams and the senior pilots would be subject to such tests before resuming work). Indeed, even the FAA Administrator admitted that there was no such basis in air safety while the government defending the rule as safety based in court. While our case was still pending, Congress rejected the rule and affirmed what the pilots were arguing in federal court—that there is no basis for excluding pilots over age 60 for reasons of safety. The original Age 60 Rule was also found to be a violation of human rights by the Canadian Human Rights Commission, which found no basis for barring pilots at the age of 60 and ordered the return of two Air Canada pilots to their former positions with their full seniority and benefits intact.
In fighting to end the Age 60 rule, we faced determined opposition from ALPA which enlisted “ALPA’s man” in Congress: Oberstar. However, the senior pilots found considerable support among members to reject the rule. Members thought that they had corrected the problem with the enactment of FTEPA, but many members did not know that Oberstar had inserted the provision drafted by ALPA. That provision said that senior pilots could return to work but could not claim any of their accrued benefits, seniority, or status. Due to the way that this industry is structured, that poison pill provision was an effective bar on employment. Even if hired in their sixties, these pilots would have to go to the end of the line — behind ALPA members. Many were left without health insurance or income to support their families.
The ALPA provision states:
The Fairness for Experienced Pilots Act 49 U.S.C. § 44729(e)(1):
1) NONRETROACTIVITY- No person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier engaged in covered operations unless–
(A) such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew member; or
(B) such person is newly hired by an air carrier as a pilot on or after such date of enactment without credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier.
ALPA openly admitted that it drafted the provision and had Oberstar (right) insert the provision to strip the senior pilots of their ability to return to work with their earned benefits and status. In other words, the senior pilots prevailed in showing that there was no basis for the original rule only to face a new age-based rule that barred them from returning. No explanation was given for the rule. It was just a muscle play by a powerful union that targeted this group of pilots.
What is most frustrating for these pilots is that the original Age 60 rule was challenged for decades by litigants on the basis that there was no basis for the rule. Yet, despite the lack of any support for the rule, courts across the country rejected every challenge in deference to an agency that offered nothing more than conclusory claims of air safety. Even with the FAA Administrator admitting that there was no basis for the rule in public comments, the courts continued to uphold the rule. Even when the international rules (to which the U.S. is a signatory) rejected the rule, the courts continued to reject challenges. Then when Congress stepped in and said that there was no basis for the rule, the courts declared that the pilots could still be stripped of their status and seniority because it would disharmonious for them to return to their prior positions. In other words, they were proven to be right all along but still lost their benefits, status, and careers. It is obviously not supposed to work that way.
Judge Janice Rogers Brown dismissed the prior challenge to the Age 60 rule and indicated that would have to go back to the district court to file a new challenge. That was their third filing before the district court to try to secure a ruling on the merits. She then wrote the opinion in this appeal and rejected the claims of the pilots.
The petition argues that the ruling against the senior pilots would allow Congress to curry the favor of any powerful group or business in stripping competitors in the name of harmony. The decision also strips away any meaning to the rational basis test in such cases. The D.C. Circuit wrongly concludes that simply favoring one group over another can be a rational and not an arbitrary choice. The same “harmony” could be achieved in any case of competing groups where Congress favors the more politically powerful group. The D.C. Circuit would allow the government to simply recast an effort at open favoritism as a desire for “harmony.” This preference splinters the workforce—promoting more disharmony than harmony. This interest fails the requirement of Romer v. Evans, 517 U.S. 620, 633 (1996), that “classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. That is precisely what the “workplace harmony” rationale seeks to do by shifting valuable employment and property interests from one group to a more favored group. Even if the lower court was not inclined to consider the actual purpose of the new rule, it could not ignore the obvious disharmony produced by stripping senior pilots of the benefits and status that they worked for years to accrue. Under the same rationale, Congress could preserve “harmony” by wiping out the pension funds of any employees who have birthdays on Mondays and Tuesdays. Simply declaring worker harmony through age discrimination is no substitute for a rational basis.
It has been a distinct honor to represent these pilots who are composed of not just veterans but many highly decorated veterans who fought for their country in various wars. Due to the Veteran’s Day holiday, we filed today. The Veteran’s Day deadline was an irony not lost on my clients or our team. While politicians like Oberstar do not hesitate to pose with veterans for photo ops on this holiday, their service (like their rights) presented little problem in destroying their career when a powerful group demanded it. They deserve better from the nation that they served so long and so well.
Here is the petition filed today: Final Petition for Cert