Pilots File With Supreme Court In Age Discrimination Case

The U.S. Supreme Court
The U.S. Supreme Court
Today, I filed a petition for certiorari with the United States Supreme Court in Adams v. Federal Aviation Administration. The case challenges the Fair Treatment for Experienced Pilots Act (FTEPA) under which senior pilots were stripped of their benefits, seniority, and status. The law included a poison pill provision openly drafted by the Air Line Pilots Association (ALPA) to advantage their members. The ALPA provision was inserted without the knowledge of most members by former Transportation Committee Chairman James Oberstar, a major recipient of ALPA campaign contributions and publicly called “ALPA’s man” in Congress in by the group. The odyssey of that these pilots have faced in the federal courts is a chilling story of how politicians can abuse citizens without fear of political or judicial repercussions. This is now their final appeal in a case that constitutes one of the greatest injustices that I have witnessed in my career. As for Oberstar, he continued to receive contributions ALPA members until he was finally defeated in 2011. For senior pilots, he left a legacy of arbitrary injury to families across the country as a result of his blind actions on behalf of ALPA.

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.

160px-OberstarjALPA 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.

Janice_Rogers_BrownJudge 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

32 thoughts on “Pilots File With Supreme Court In Age Discrimination Case”

  1. Randy,
    You can probably relate to what happened to my friend Paul Marcshalk, DFC. Paul was an A-26 pilot with the Nimrods, flying 155 low level night missions against truck convoys on the Ho Chi Minh trail. After he left the Air Force he went to work for one of the airlines.

    On the night of his 60th birthday, at exactly midnight, he got a call on the company channel. He was somewhere over the middle of the country at FL40 at the time. The call advised him he was cleared to continue his flight to his destination (LAX as I recall), but if he had to make an emergency landing before then, he was grounded and would not be allowed to complete the flight. Paul suddenly became too old to fly an airplane full of people with one tick of the clock.

    1. OS While my last flight was not so memorable in that I was scheduled off on my birthday, so I did get a firespray salute at DEN in November. My chief pilot mentioned that he looked at the outside air temp to make sure it was above freezing. I landed on my last flight at night in CMH and I joked with the pax that I was practicing for my next job by saying ” Would you like that with cheese?” I think that if I had known how long it was going to take to get the age limit lifted, I would not have even reminded my airline that I was coming up on age 60. I could have flown for a couple of years I think since they were not as aware or looking at age limits on all of our pilots since I was one of the very few pilots who ran into that. There was only one other pilot who hit age 60 before me. Then it looked like the bill was going to pass in Dec of 2005, so I was looking at only being off for a week or so.

      I am sorry to hear that your friend passed away. I wish that I could have flown in the military, but I flunked the first question when a Navy recruiter came on our campus in college. It was spring in 1965, and I saw them, and ran up to volunteer for the Naval Aviation cadet program. The officer looked at me and asked me how tall are you son? Now I knew that was NOT a good question to be asking since Naval aviators were falling out of the sky at a good rate at the time. So I lied, and knocked one inch off my actual height since I figured I might be able to crush my spine that amount if they checked. So I said, I am only 6’4″. He then said sorry son, but the limit is 6’3″ Now that I am older I realize I should have answered with “How tall do I need to be?”

      So I left college and joined the Air Force since I love airplanes, was running out of money for schooling, and I agreed with the war. I figured that if I was for a war, I ought to put my body where my mouth was too. I was hoping that I could also get my private license in the bargain, but I was never at a base that had a flying club. So I did it on my own.

  2. OS As you rightly suspect, I do have a lot to say about this subject since I am one of the parties to this suit. Since I could write a book about this, I will try and keep it as short as possible.

    The best way to start is when the rule was first promulgated in 1959 under the Eisenhower administration which established the FAA in 1958. Ike appointed his old WWII Army buddy Gen Pete Quesada as the first FAA head. You have to remember that this was the same time that the airlines were getting their first jet airliners and American Airlines found that the most senior pilots who were being trained to fly these jets took longer because they had never flow a jet, while all the younger guys were fresh out of the Air Force, and had lots of jet time. All of the senior pilots were WWII Army Air Corps veterans and had only flown piston aircraft. So A.O. Smith of American decided that the way to solve the problem was to fire all the pilots at American who turned 60. When he did this ALPA, went out on strike to force him to cease and rehire the pilots. Smith lost the battle, so he wrote his good buddy Pete to see if he could pass a rule to mandate that all pilots in Part 121 service be ruled medically unfit to fly when they reached their 60th birthday.

    The people involved in researching this went to the FAA archives to look up the rule making file for this provision. Before the FAA can make a rule, they have to submit a Notice of Proposed Rule Making during which time all stakeholders get to raise objection and comments before the rule is adopted. They could find NO such file! It had been destroyed, or never done! Thus the rule to begin with is simply illegal according to the FAA rules. Then they did more research and looked at Quesada’s personal files at the FAA. While they had purged the FAA files of incriminating documents, they forgot to do the same thing in Quesada’s files. In those files they found a personal letter from Smith to good buddy Pete that Smith had personally typed himself. There were errors in typing which showed that he knew it was so secret that he could not trust it to his secretary to type. In it, he said he needed help to get rid of his over 60 pilots, and requested help to make a rule to toss his older pilots. At the time there was NO age limit for airline pilots, all they had to do was to pass a very tough physical and they could continue flying.

    Then to compound the insult and crooked dealing, Quesada quit his post shortly after enacting this rule, and wound up on the board of American Airlines. I think it would be interesting to go to the FBI and see if they have tapes of conversations between Smith and Quesada regarding this quid pro quo. As former Sen. Hutchison said, this rule came about under rather questionable circumstances to say the least.

    As for ALPAs position, they opposed this rule for over 20 years, but when junior pilots gained the upper hand, they reversed ALPAs position and were in favor of the rule since it allowed them quicker advancement over the backs of their seniors. The older pilots did not like it, but there was a plus side, since all airlines at the time had very nice pension plans and when they retired at age 60, they still got almost what they had been getting when they were active pilots. After airline deregulation, and other problems, the pensions went away, and so the older pilots now got very little in retirement pay and benefits, and now they had nothing to show for a lifetime of working and no possible way to keep body and soul together until they reached age 65 for Medicare and Social Security.

    With the bankruptcy of United, the pilots pension was taken over by the PBGC, and benefits were cut to a max of less than $2000/mo because as PBGC said the pilots had taken “early retirement” and thus could only get HALF of the max PBGC benefit of $42,000/yr. As one United pilot observed, his “retirement pay” did not even cover his and his wifes health care insurance they had to buy, assuming that they could find a plan.

    As for the actual effect of the act we are challenging, it gave rise to a sad but ironic result at Continental Airlines. The ALPA lawyers forgot that that airline had about 20 senior pilots who were over age 60 and still flying as check airmen. So when the law was passed, Continental simply put them back on line as captains. ALPA then filed a grievance against them, even though those pilots were required flight deck crew members at the time of the signing of the law. ALPA was demanding that Continental FIRE those pilots since Continental actions fell outside the intent of the law according to them. They went to expedited arbitration, and the arbitrator came back quickly, and ruled against ALPA and was astonished at their position.

    For me personally, when I left the refinery to fly professionally, the commuter airlines were operating under part 135 of the FARs. Later, the FAA brought all of them under the more restrictive Part 121 which covers passenger airlines. Prior to that, I could still fly for a commuter airline since there was no age restriction, and I thought that when I turned age 60, I could still find a job at my airline or another one flying passengers at a small airline. This was closed to me completely since the rule did not change in time for me and ALPAs rule made it functionally impossible to return to my job. Later the FAA after two years, admitted that it could NOT enforce the rule, but that did me no good at all since it also barred me from flying abroad as well because I had timed out on my flight currency of two years and I would have to pay over $20,000 to get current again in a simulator if I could even find a slot.

    I am rather humbled by the distinguished record of my fellow litigants since though I am a Vietnam era veteran, my military record is FAR surpassed by most of them. It is rather an honor for me to be included among their number even though I am one of the lowest on the totem pole of accomplishments and service.

  3. SWM, Firstly, I didn’t know you lived up der in the Iron Range, you’re darn tootin’. Secondly, I think you know I consider most pols crooks. Finally, being an entrenched pol and chair of the Transportation committee he had more corruption opportunities. Our sources didn’t like all of his out of state contributions and his arrogance.

  4. nick, I know people that miss Oberstar. I supported another candidate in a dfl endorsement battle with Oberstar in1980. Back then Oberstar was backed by the anti- choicers but he came around and supported women’s rights later. Does being 100 percent pro union make Oberstar a “crook” as you say?

  5. SWM, Our relatives in Duluth have kept us VERY updated on the politics. They, and apparently MANY voters, voted against a crooked Oberstar and not for Kravaack, per se. They are independents, and I think they may have voted for Nolan last cycle? “All politics are local.” Oberstar is gone and that’s what folks wanted.

  6. When I was flying commercially (before TSA) I always preferred to see a bit, or even a lot, of grey hair on the captain and none on the first officer.

    According to the airline pilots I knew, ALPA should have called on its pilots to honor the ATC strike. The pilots could have legitimately refused to fly on safety grounds. At least one of them was sorry he didn’t do it on his own, but then, he loved to fly.

  7. Nick, Oberstar was swept out with the rest of the democrats in Minnesota in 2010 .They came back strong in 2012. Electing a republican in that area was a fluke and the candidate that you mentioned Chip Kraavack or something like that was defeated by DFLer Rick Nolan,in 2012.

  8. I agree with Platos cave. Why not apply this rule to elected officials and the appointed the supreme court.

  9. After reading the petition, it is clear that the senior pilots got screwed by a bill of attainder, and the procedural law concerning summary judgment motions (the motion court cannot decide disputed material facts) was violated.

  10. Nal, People too often assume the union fat cats always have the best interests of their members as the top priority. I don’t know the politics of this situation, but there are many instances of union leaders swelling out their hard working members. Ronald Reagan and SAG comes to mind immediately. Reagan sold out foreign royalty rights to Lew Wasserman and Sidney Korshak for purely future political considerations. Jimmy Hoffa and the Teamsters, yada yada yada.

  11. You could go on and on and on and on…. Until the system of government, electing representatives, and passing laws in the United States starts to depend on the informed opinions of the voters we will have to endure this oligarchy. The politicians are paid for, and manipulated from some degree to almost entirely as is described in this blog.

    How the right to buy elections was ever supported by the supreme court is beyond rational sense. We call ourselves a democracy but in reality we are one of the least democratic nations in the free world. The United States is a great country but is going down the tubes for this one reason.

    Decisions are not made based on the benefit of all but on the benefit of a select few who have the funds to buy those decisions. The Koch Brothers are the perfect example. The NRA is the most notorious, hiding behind the 2nd amendment to buy and sell judges and spineless politicians.

    I could go on and on and on…..

  12. I thought all the corruption was supposed to be in Afghanistan and Iraq?

    I guess despite our wonderful Constitution (which you so eloquently defend), we live in a country where you get the government you pay for. Surprise, surprise.

  13. While I can understand why the airlines would want to get rid of senior, more expensive, pilots, I don’t see why the ALPA would.

  14. I have a couple of tales to tell about the arbitrary and capricious nature of the age 60 rule. I am pretty sure Capt. Erb has some thoughts on the subject and will weigh in with his expertise.

    The third class medical is also a joke that should be done away with altogether.

  15. Kudos Mr. Turley. We have family up in Duluth and they really didn’t like Oberstar. He was the classic, entrenched politician. The irony of his finally being shown the door by voters is he was defeated by a former Navy and Northwest Airlines pilot w/ no political experience.

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