holding that the "cease to be effective” language in the FTEPA served to moot requests to the FAA for waivers to the Age 60 Rule made by pilots who reached age sixty prior to the FTEPA’s enactment
How later courts described this case
- holding that the "cease to be effective” language in the FTEPA served to moot requests to the FAA for waivers to the Age 60 Rule made by pilots who reached age sixty prior to the FTEPA’s enactment
- courts may dismiss on “non-merits grounds” before finding subject matter jurisdiction
- "The Act, which expressly abrogates the Age 60 Rule, moots the petitions for review of the orders denying exemption from the Age 60 Rule.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2008 Decided December 19, 2008
No. 07-1180
GRANT O. ADAMS, ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION AND UNITED STATES
DEPARTMENT OF TRANSPORTATION,
RESPONDENTS
Consolidated with 07-1194, 07-1226, 07-1326, 07-1366,
07-1390, 07-1447, 07-1507, 07-1524, 08-1023, 08-1360
On Petitions for Review of an
Order of the Federal Aviation Administration
2
Jonathan R. Turley argued the cause and filed the briefs
for petitioners.
Edward Himmelfarb, Attorney, U.S. Department of
Justice, argued the cause for respondents. With him on the
brief were Gregory G. Katsas, Assistant Attorney General,
and Michael Jay Singer, Attorney. Robert S. Greenspan,
Attorney, entered an appearance.
Jonathan A. Cohen, Marta Wagner and David M.
Semanchik were on the brief for amicus curiae Air Line Pilots
Association, International in support of respondents.
Ronald G. Birch was on the brief for amici curiae Airline
Pilots Against Age Discrimination, et al. in support of
respondents.
Before: GINSBURG and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Petitioners are commercial
airline pilots who reached the age of 60 before December 13,
2007. As many pilots have done before them, these pilots
filed requests for an exemption with respondent, the Federal
Aviation Administration (FAA), from the regulation barring
them from flying commercial aircraft after they turned 60. 14
C.F.R. § 121.383(c) (Age 60 Rule).1 The FAA denied their
1
The FAA promulgated the so-called Age 60 Rule in 1959. In its
latest form, it provided:
No certificate holder may use the services of any
person as a pilot on an airplane engaged in
operations under this part if that person has reached
3
requests for exemption. Petitioners filed petitions for review
in this Court under 49 U.S.C. § 46110(a), which permits
direct challenges to “an order issued by . . . the Administrator
of the Federal Aviation Administration . . . .”2
On December 13, 2007—after some but not all of the
petitions for review were filed with this Court—the President
signed into law the Fair Treatment for Experienced Pilots Act
(FTEPA or the Act), codified at 49 U.S.C. § 44729. The Act
provides, among other things, that the maximum age limit for
pilots flying large commercial aircraft now is 65. Id.
§ 44729(a). The Act expressly repeals the regulation that was
the Age 60 Rule, stating “[o]n and after the date of enactment
of this section, section 121.383(c) of title 14, Code of Federal
Regulations, shall cease to be effective.” Id. § 44729(d).
Respondents say the Act moots these petitions for review
because there is no longer an Age 60 Rule from which to
exempt the petitioners. Petitioners respond that the Act
cannot moot their petitions for review because the Act itself is
unconstitutional. Specifically, petitioners object to the
treatment of pilots who reached age 60 before the FTEPA’s
his 60th birthday. No person may serve as a pilot
on an airplane engaged in operations under this
part if that person has reached his 60th birthday.
14 C.F.R. § 121.383(c).
2
Petitioners also filed petitions for reconsideration with the FAA.
Pending petitions for agency reconsideration normally would
render the petitions for review in this Court incurably premature.
See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108, 110–11
(D.C. Cir. 2002). The FAA denied the petitions for reconsideration
during this litigation, however, and petitioners have since filed new
petitions in this Court. These have been consolidated with their
original petitions.
4
enactment (and were ineligible to fly under the regulatory
Age 60 Rule) but are not yet 65 (and are not yet ineligible to
fly under the Act). The statute denies such pilots any
seniority or benefits from their prior (pre-age 60) years of
service if they are hired or rehired by an airline. Id.
§ 44729(e)(1)(B). In petitioners’ view, this provision is a
constitutionally-prohibited bill of attainder and a violation of
their rights to due process and equal protection. Petitioners
do not, however, challenge the Act’s abrogation of the Age 60
Rule.
Petitioners fail to recognize we do not have jurisdiction
to consider constitutional questions unrelated to the FAA’s
order. As long as petitioners can satisfy the usual Article III
standing requirements, their facial challenges to the Act must
be brought in the district court in the first instance, which has
original jurisdiction over federal question claims under 28
U.S.C. § 1331. Petitioners insist we cannot dismiss the
petitions as moot as a result of the statute without considering
the validity of the statute, but they fail to cite any persuasive
authority.
By contrast, respondents direct our attention to Coalition
of Airline Pilots Associations v. FAA, 370 F.3d 1184 (D.C.
Cir. 2004), involving the due process rights of pilots the
Transportation Security Administration deemed security risks.
Congress passed a statute during the litigation changing the
procedures the agency had adopted by regulation. Id. at 1188.
Congress’s action mooted the controversy then before the
Court. Id. at 1190–91. When the petitioners in that case
argued the statute itself was infirm, this Court established a
clear boundary: “[T]o the extent the Coalition is attacking
[the new statute], and not the rules themselves, we lack
jurisdiction to consider such a claim. If the Coalition wishes
5
to challenge the new statute, it must do so in the district
court.” Id. at 1191.
Coalition of Airline Pilots Associations is on point. The
Act, which expressly abrogates the Age 60 Rule, moots the
petitions for review of the orders denying exemption from the
Age 60 Rule. And if petitioners wish to challenge the
constitutionality of the statute on its face, they should—
assuming they can show Article III standing—file a complaint
in the district court. Seeking initial review of the statute here
extends beyond the jurisdictional grant of 49 U.S.C.
§ 46110(a). Accordingly, the petitions for review are
dismissed.
So ordered.