I have an interesting constitutional case developing before the United States Court of Appeals for the District of Columbia. Older pilots are challenging the Fair Treatment for Experienced Pilots Act, Pub. L. No. 110-135, 121 Stat. 1450 (2007). The legislation presents not only a raw example of age discrimination but a possible bill of attainder.
Before the legislation was enacted, the pilots were seeking the dismissal of a series of petitions by pilots who challenge orders of the Federal Aviation Administration (FAA) denying exceptions under the “Age 60 Rule, 14 C.F.R. 121.383(c). The FAA has barred pilots from flying in the United States without any individual consideration of the capabilities, health, or performance of individual pilots. The FAA then sought dismissal on the basis of the enactment of the Fair Treatment for Experienced Pilots Act, Pub. L. No. 110-135, 121 Stat. 1450 (2007), which sought to eliminate the discriminatory Age 60 Rule.
Since 1959, the FAA has imposed this rule that was directly tied to a labor dispute between pilots and the airlines. Airlines like American Airlines had failed to impose an early retirement rule through negotiations and arbitrations. When American Airline lost an arbitration decision on the early retirement, it succeeded in getting the FAA to impose it through federal regulation. The FAA promulgated the Age 60 Rule, which provides that “[n]o certificate holder may use,” and “[n]o person may serve as,” “a pilot on an airplane engaged in operations under [14 C.F.R. Part 121] if that person has reached his 60th birthday.” 14 C.F.R. 12.
There was never a medical basis for the rule. Indeed, even at the time, FAA lawyers in 1959 found “[no] scientific or factual justification” for the rule. Likewise, in1981, the National Institutes of Health (through the National Institute on Aging Panel on the Experienced Pilots Study) also found no scientific or medial basis for the FAA policy. Yet, the FAA continued to impose the rule. In the meantime, other major industrialized countries rejected the Age 60 rule as unnecessary and discriminatory.
On March 10, 2006, the ICAO governing Council adopted a recommendation of the Air Navigation Commission to use the age 65 as the age limit for air carrier pilots-in-command. Under this standard, an older pilot may serve as a pilot-in-command on a multi-pilot crew so long as the co-pilot is under the age 60. Thus, the only limitation is that both pilot and co-pilot cannot be over the age of 60. This international standard became effective on November 23, 2006 and the United States, under U.S. aviation treaty obligations, must conform to the rule
The international standard created a bizarre anomaly in the United States. As a member, the United States had to comply with the standard and thus has allowed older pilots to fly within the United States on foreign carriers despite the fact that they are over 60. However, U.S. airlines continued to be barred from using such pilots, even if every test and examination showed them to be fully capable.
The FAA itself admitted that the rule was archaic and unnecessary. On January 30, 2007, the F.A.A. Administration spoke of the lack of support for the Age 60 rule at the National Press Club:
It’s time to close the book on Age 60. The retirement age for
airline pilots needs to be raised. So, the FAA will propose a new
rule – to allow pilots to fly until they are 65. ….
When airlines back in the day [the 1950s] were forcing pilots to
retire, the union took legal action. Arbitrators ruled for the pilots
each time. …American Airlines prevailed on the FAA for a rule.
…. The man in charge at American, C.R. Smith, wrote to Pete
Quesada, the administrator at the time. …. Less than four months
later, the Federal Aviation Administration issued a proposed
rule…. When you’re 60, your career as an airline pilot would
…. It’s now a different day and age. The issues of experience,
harmonization – and let’s face it – equity – all have to be
Despite such frank admissions, the FAA continued to fight efforts to challenge the Age 60 rule and continued to deny exceptions to the rule for individual pilots.
Congress finally acted to correct the long-standing controversy in passing the Fair
Treatment for Experienced Pilots Act, Pub. L. No. 110-135, 121 Stat. 1450 (2007), which President Bush signed on December 13, 2007.
Without any stated reason, the Congress said that pilots who turned 60 before December 13, 2007 could only be rehired without their seniority and benefits. There is no connection to airline safety, of course. It is simply a congressional sweetheart deal for the union and some airlines. What is fascinating is that, even at this stage, the government cannot come up with even a rational basis for this punitive treatment of older pilots.
The impact fell largely on veterans — thousands of pilots who were instantly deprived of their benefits. Moreover, only about 2 percent (less than 60) of the 3,000 pilots forced out of the air by the FAA and then stripped of their rights by Congress have been rehired by U.S. airlines.
Our opening brief is scheduled for mid-June.
For the most recent article on the case, click here.
For more on the Age 60 rule, click here.